DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 268 of 24-04-2014

Decided on : 24-11-2015

Karandeep Singh S/o S. Wazir Singh R/o Street No. 2 Baba Farid Nagar, Barnala Road, Bibiwala Chowk, Bathinda.

…...Complainant

Versus

1. Honda Cars Ind. Ltd., Plot No. A-1, Sector 40-41, Sujanpur Kasna Road, Greater Noida, Industrial Development Area, Distt. Gautam Budh Nagar (U.P.) 201306 through its Director/Manager/CMD

2. Deep Automobiles Pvt. Ltd., Deep Honda, Mansa Road, Bathinda, through its Prop/Incharge.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh. Pahwa, President

Smt. Sukhwinder Kaur, Member

Sh. Jarnail Singh, Member

Present :

For the Complainant : Sh. Harsatnam Singh, counsel for complainant.

For the opposite parties : Sh. Ajay Singla, counsel for OP No. 1.

Sh.Sandeep Baghla, counsel for OP No. 2.

O R D E R

M. P. Singh Pahwa, President

1. Karandeep Singh, complainant, has filed this complaint against Honda Cars Ind. Ltd., and another (opposite parties) under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act').

2. Briefly stated the case of the complainant is that he purchased one brand new Honda City Car from opposite party No. 2 bearing Chassis No. MAKGM8585BAEN000748, Engine No. N15A11103356 Model Honda City 1.5 VX MT 1-DTEC Sedan on 20-1-2014. He paid due amount i.e. Rs. 11,34,500/- to Deep Honda, Bathinda. After sometimes, it came to the knowledge of the complainant that car is defective/accidental. Both the windows of passenger side are painted. The difference between re-painted windows and rest of the body of Honda Car was clearly visible. Right rear mirror window and rear main mirror were also old i.e. of the year 2013. Both the windows are displaced from its place. Drops of paint and filling of material is clearly visible in the car. There is one black spot on the window of passenger side. The complainant approached Deep Automobiles to exchange the car with new one and company dealer assured him that they will do the needful. The complainant also contacted Honda Customer Care for the same problem. They also assured him to solve the problem, but no action was ever taken by Honda Company. The complainant visited Deep Honda so many times with the hope that they will resolve the matter. After some days, he came to know that car was accidental before the delivery. It was repaired by the company and delivered to him fraudulently by hiding facts. The above said defects have been shown to the company and they have admitted that window mirrors are of the year 2013 manufactured instead of 2014 and also told him that they are ready to change the window mirrors. The complainant requested the company to replace the defective car with new one or refund the amount of car, but no satisfactory reply had been given by the company. They declined the request of the complainant. Legal notice dated 17-3-2014 was sent to the opposite parties but no reply was received.

3. On this backdrop of facts, the complainant has alleged deficiency in service. He has claimed Rs. 1,00,000/- as compensation on account of sufferings and Rs. 11,34,500/- as price of the car or replacement of car with new one and Rs. 22,000/- as litigation expenses.

4. Upon notice, opposite parties appeared through their respective counsel and contested the complaint by filing written versions. The opposite party No. 1 in its separate written version raised preliminary objections that allegations levelled by the complainant are false and frivolous. The complaint has been filed with ulterior motive to harass and defame the opposite parties. The complaint is an afterthought and complainant is deliberately trying to distort the facts of the case to suit his own convenience, in order to mislead this Forum. The vehicle was thoroughly inspected by complainant prior to taking delivery of it. Had there been any defect in the vehicle, the complainant would have definitely reported the same to the authorized dealer promptly. Moreover, the pre-delivery inspection is carried out before the delivery of vehicle. The PDI sheet shows that there is no defect with regard to the paint of the vehicle. Therefore, the complaint is not maintainable and is liable to be dismissed. That the complainant has failed to bring the complaint within the ambit of section 2(1)(c) of the 'Act'. The complaint does not disclose any manufacturing defect. Therefore, complaint is liable to be dismissed. Moreover warranty obligations of opposite party No. 1 is only to the extent of repair or replacement of part which proves defective, within the limit of warranty, at no charge, for parts and labour. That complainant wants replacement of the car or refund of money. Therefore, he has filed false and frivolous complaint. The complainant is not entitled for replacement of the vehicle and the demand for replacement is illegal and cannot be sustained in the eyes of law. That complaint involves several disputed questions of fact and law which would require detailed oral and documentary evidence. Complaint cannot be adjudicated in the present summary proceedings and only civil courts have jurisdiction to try and adjudicate upon the present complaint. That complainant is misusing the provisions of 'Act'. He has raised arbitrary and inflated claims knowing fully well that no court fees is payable on such claims. The claims made are otherwise also an afterthought. That the complaint is bad for mis-joinder of the opposite parties. Complainant has failed to establish in his complaint that a particular kind of defect falling within the purview of inherent/manufacturing defect had persisted in vehicle. Neither any engineer's report nor any other convincing material had been filed before this Forum. The allegation of manufacturing defect in a vehicle is not to be taken to be as a gospel truth on mere statement. It is required to be proved beyond doubt by means of credible documentary evidence. That relationship between opposite parties No. 1 & 2 is purely on principal to principal basis . Each party is responsible for its own action. The complainant never had any direct dealing with opposite party No. 1. The vehicle was purchased by complainant from opposite party No. 2 who is one of the authorized dealers. The opposite party No. 2 mainly look into providing after sale services to its customers. It is only in case of any manufacturing defect, then opposite party No. 1 is required to meet its obligation as per standard prescribed. That there is no privity of contract between opposite party No. 1 and complainant. Therefore, any grievance with respect to delivery in service can only be made against opposite party No. 2. The issues mentioned in the complaint are false, concocted and a cooked up story. It seems like that the vehicle has met with an accident. Complainant got repaired /repainted from an unauthorized mechanic. The allegations of the complainant are not technical/mechanical defects which require any expert inspection. It is of such nature which could be ascertained by naked eyes without much deliberation. Had there been any defect, it would have been pointed out by authorized dealer at the time of taking delivery of vehicle from opposite party No. 1 who conducts a post delivery inspection and if during inspection, the authorized dealer finds any defect in the vehicle, then the delivery of the defective vehicle is not taken by the authorized dealer. It is accordingly returned back to opposite party No. 1. There was no issue with the paint of the vehicle at the time of its delivery to the dealer nor there was any problem with the right rear mirror and the main rear mirror. The vehicle was delivered to the complainant in perfect roadworthy condition. It was duly inspected by the complainant before taking its delivery. The complainant, after being satisfied about the quality of the product, signed new vehicle handover Form. That complainant has not suffered any damage, hence he is not entitled to any compensation.

5. It is relevant to mention that in preliminary objections, the opposite party No. 1 has mentioned some case law, the reference of which is not necessary at this stage.

6. On merits, the opposite party No. 1 controverted all the material averments and prayed for dismissal of complaint.

7. The opposite party No. 2 in its separate written version raised legal objections regarding maintainability, cause of action and misjoinder of necessary parties. Further legal objections are that intricate and contentious questions of fact and law are involved which require extrinsic oral and voluminous documentary evidence. The same cannot be decided by way of summary jurisdiction. The complaint deserves dismissal. The complaint is bad for non-compliance of provisions of section 13(1)(c) of the 'Act'. That in peculiarity of the allegations put forth in the complaint, this Forum has no jurisdiction to entertain and decide the complaint. The nature of allegations require extrinsic oral and voluminous documentary evidence that cannot be decided by way of summary procedure before this Forum. The complaint deserves dismissal. That the complainant is not consumer as defined under section 2(d) of the 'Act'. That complaint is false, frivolous and vexatious to the knowledge of the complainant. The opposite party No. 2 is entitled to get special costs under section 26 of the 'Act.

8. On merits also, the opposite party No. 2 controverted all the material averments. It is admitted that car has been purchased by complainant from opposite party No. 2. It is further added that prior to the delivery of the car, the complainant has duly inspected the same. After being satisfied about the physical condition, running and working of the car, he had sought delivery of the same. All other averments are denied.

9. It is further stated that car in question had been brought by the complainant for first free service on 6-2-2014 when the vehicle had run 1184 Kms. The complainant has not raised any allegation regarding paint of the car. Further the car has been brought on 22-4-2014 when the car had run 5239 Kms for second free service. The complainant has not raised any such allegation with respect to the paint of the car. It reveals that allegation of the complainant are frivolous and after thought version in order to seek illegal claims from opposite party No. 2, at the cost of reputation of opposite party No. 2. It is denied that there is difference of paint on the windows than the body of the car. It is alleged that mentioning of year 2013 on the mirror of car is a vague and baseless allegation. The vehicle is 2014 model qua which the sale certificate had been issued to the complainant. The complainant has misrepresented the fact before this Forum. The year mentioned on the mirror is immaterial as it is the date of delivery from the manufacturer who assembles all the parts for the manufacturing of the car. The opposite party No. 1 has clearly mentioned the date of manufacturing of the car as 2014. After controverting all other averments, the opposite party No. 2 prayed for dismissal of complaint.

10. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence photocopies of documents (Ex. C-1 to Ex. C-16) which included photocopy of certificate of inspection of motor vehicles (Ex. C-4) and affidavit dated 24-7-2014 of complainant (Ex. C-16).

11. In order to rebut this evidence, opposite party No. 1 has tendered into evidence affidavit dated 7-7-2014 of Sh. Amit Sinha (Ex. OP-1/1), photocopy of Challan (Ex. OP-2/1), photocopy of dealership agreement (Ex. OP-1/3) and photocopy of PDI check sheet (Ex. OP-1/4).

12. The opposite party No. 2 has tendered into evidence documents (Ex. OP-2/1 to Ex. OP-2/15) which included affidavit dated 19-8-2014 of Sh. Surinder Singh (Ex. OP-2/1), photocopy of import slip (Ex. OP-2/12), photocopy of consignment receipt note (Ex. OP-2/13), photocopy of invoice (Ex. OP-2/14) and photocopy of goods receipt (Ex. OP-2/15).

13. Learned counsel for the complainant and opposite party No. 2 have also submitted written submissions.

14. We have heard learned counsel for the parties and gone through the record and written submissions of the complainant and opposite party No. 2.

15. Learned counsel for complainant has reiterated his averments as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that admittedly complainant has purchased new car on 20-1-2014. Averments of the complainant are that both windows of passenger side were painted and there was difference of colour between window and rest of the car body. The complainant has brought on record photographs (Annexures 1 to 4). The difference in the colour is clearly visible even with naked eye. As the car was new one, there was no question of difference of colour. Therefore, the only inference is that the car was accidental or it was not a new car as claimed by the opposite parties. Moreover the right rear window door mirror of the car and main windshield are having manufacturing year as 2013 but the car was stated to be manufactured in 2014. If car was manufactured in the year 2014, then these mirrors and windshield (mirror back side) were also not to be having the year 2013. These facts clearly shows that car is not manufactured in the year 2014. Therefore, the complainant is entitled to the replacement of the car or refund of the value of the car in addition to compensation and cost of litigation as claimed by the complainant.

16. On the other hand, learned counsel for the opposite parties submitted that allegations levelled by the complainant are vague and uncertain. The complainant has purchased the car in 20-1-2014 and this complaint has been filed on 24-4-2014. In case there was any difference of colour or there was any doubt regarding manufacturing year of the glasses or mirrors, the complainant was certainly to notice this fact at the time of accepting delivery of the car or shortly thereafter. The complainant has got effected the service on 6-2-2014 and 22-4-2014. In case the complainant was having any doubt regarding mirror or colour, he was certainly to point out this fact also. Moreover, the complainant has failed to prove his case by affirmative evidence. Of course the complainant has brought on record number of documents but none of document has proved averments of the complainant. Photocopies of documents produced by the complainant i.e. legal notice, invoice, Forms No. 20, 21 & 22 certificate of inspection of motor vehicle, registration detail and payment receipts do not point out any defect. Therefore conclusion is that complainant has failed to prove his case. As such, complaint is liable to be dismissed.

17. We have carefully gone through the record and have considered the rival contentions.

18. Before proceeding further, we would like to make it clear that it is well settled that complainant is required to prove his case by affirmative evidence and not on the basis of conjectures and surmises. The complainant has simply alleged that he noticed that car is accidental as both the windows of passenger side are painted and there is difference between re-painted windows and rest of the body of car. The complainant has also alleged that right rear mirror window and rear main mirror were old bearing year 2013. Therefore, the complainant was required to prove these facts. Of course, the complainant has tendered into evidence number of documents but these documents are not going to prove the defects pointed out by the complainant. The complainant has also produced on record photographs but he has not tendered these photographs in evidence. He has annexed photographs with the written arguments. Moreover, from the photographs it cannot be concluded that the defects alleged by the complainant were in existence on the date of purchase.

    The documents produced by the opposite parties show that opposite party No. 2 has sold the car to the complainant on 20-01-2014. Ex. OP-1/4 is Reception/PDI Check-sheet. It is dated 20-01-2014, It is prepared at the time of accepting delivery by dealer from manufacturer. As per this document, paint finish and body parts were found okay. All other parts were also found okay. The vehicle was sold to the complainant on that very day. The invoice Ex. OP-2/14 proves that opposite party No. 1 has supplied the vehicle to opposite party No. 2 on 17-01-2014 from Greater Noida. Therefore, this document also proves that vehicle was received by opposite party No.2 on 20-1-2014 as it was despatched on 17-01-2014. The manufacturer has also certified the year of manufacture as 2014. There is no other document to prove that vehicle is manufactured in the year 2013 or it was an accidental vehicle as alleged by the complainant.

19. In the result, the complaint fails and is hereby dismissed being devoid of merit.

20. The complaint could not be decided within the statutory period due to heavy pendency of cases.

21. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    24-11-2015 (M.P.Singh Pahwa )

    President

     

     

    (Sukhwinder Kaur)

    Member

     

    (Jarnail Singh )

    Member