BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

            Dated this the 27^th day of March 2017

                                                                                                Filed on : 27.01.2018

PRESENT:

Shri. Cherian K. Kuriakose,                                              President.

Shri. Sheen Jose,                                                            Member.

Smt. Beena Kumari V.K.                                                  Member.

                        C.C.No. 47/2017

                              Between

                                                           O R D E R

Sheen Jose, Member

1.  The case of the complainant is as follows:

The 1^st complainant is the wife of the 2^nd complainant. The 1^st complainant had purchased a Honda Mobilio 1.5 EMT (i-DTEC) Diesel Car from the 2^nd opposite party on 21.01.2015 for an ex-showroom price of Rs.8,52,700/-.   The above said car is having 7 seats and was registered before the RTO, Ernakulam with registration No.KL-07-CC-3926.  At the time of purchasing the car, the 1^st complainant had planned a series of long journeys to tourist destinations with their family members. The car was provided with warranty for 2 years. But within days after the date of its purchase, the complainant noticed a strange phenomenon while driving the car. The complainants came to understand that immediately after starting the car and on shifting to 1^st gear, the RPM of the car suddenly increases from 820 to 1500 on releasing the clutch even without using the accelerator pedal.  In other words the car moves steadily on its own by gradually increasing its speed up to 50 kms per hour at 5^th gear.  It is submitted that though the vehicle would reduce its speed on applying brake, the car would automatically accelerate its speed once brakes were released.  Hence, in order to control the speed of the vehicle and to prevent collisions with the vehicles going ahead, especially during city drives, the complainants were constrained to resort to clutch driving and had to apply brakes   very often.  As this problem was least expected from a brand new car of such class, and the car continues to cause discomforts to the complainants. The matter was reported to the 2^nd opposite party on 24.04.2015.  But most astonishingly, the 2^nd opposite party never took this complaint seriously and on the other hand told the complainants to continue using the vehicle and assured them that the driving will have to get back in normal by course of time.   In the meantime the complainant was also noticed that the car was getting only 9 to 13 kms of mileage instead of the promised mileage of 24 kms. It was regularly noticed that on all occasions after applying and releasing the clutch there was sudden spurt in the RPM as a result of which the vehicle speed increases suddenly on its own. Usually only after applying the accelerator, fuel gets injected whereupon the RPM increases as a result of which the vehicle speed increases.  Unfortunately, the complainant’s vehicle developed considerable speed on its own without applying the accelerator.  The complainant alleged in his complaint that due to the above said problems, the car was not under the control of the complainant and it was being functioned as an automatic vehicle hence the problem faced by the vehicle was due to its inherent manufacturing defects.  As per the requests of the complainant, the car was intermittently taken by the 2^nd opposite party for necessary repairs.   On 22.01.2016 though some tests were done on the vehicle by the 2^nd opposite party and the vehicle was returned by the 2^nd opposite party to the complainant and informed that the vehicle does not suffer from any major defects. Therefore, the 1^st complainant entrusted the vehicle to the 3^rd opposite party, another dealer of the 1^st opposite party in Cochin, on an expectation that the technicians of the 3^rd opposite party could find out a solution to the problem faced by the complainants.  On the request of the 3^rd opposite party, the complainant took his disputed vehicle to their service centre on 18.02.2016 and on 26.07.2016 for repeated inspections.  But unfortunately, though the qualified service personnels of the 3^rd opposite party got convinced regarding the defect to the vehicle, they expressed their helplessness in sorting out the issue. In the meantime the 2^nd complainant began registering the complaints one after another before the customer care links of the 1^st opposite party describing the unfortunate developments encountered by him after purchasing the car and thus seeking to rectify the complaints of the vehicle. But the 1^st opposite party did not take care or did not solve the complaints filed by the 1^st complainant.  At last, the complainants decided to take his vehicle to the 4^th opposite party, another dealer of the 1^st opposite party. On 07.01.2016 the complainant approached the 4^th opposite party for service and for rectification of all the defects of the vehicle.  But the 4^th opposite party also failed to rectify the defect of uncontrolled RPM of the vehicle. The reason stated by the manufacturer and the dealers that the automatic and unanticipated acceleration of the vehicle was normal as per the vehicle specification, is rather strange and unsustainable, and cannot be accepted at any rate.  Hence, the fact is that notwithstanding the repeated reporting of the said complaint to the opposite parties and tests done on the vehicle by the opposite parties, the car remains defective, as a result of which driving the said car has become extremely strenuous and insecure. The above said car of the 1^st complainant has covered only 10,000 kms in nearly 2 years period would substantiate the fact that the car was put to limited use.  Needless to mention, it is indeed pathetic to expect the complainants to hire other cars when the new car purchased by the complainants spending nearly Rs.10,00,000/- is put idle in the car porch solely due to the laches of the opposite parties in rectifying the defects of the car.  The complainants had decided to purchase the said car after being carried away by the assurances regarding the performance of the vehicle, including its mileage.  Needless to mention, being a manually controlled vehicle, the complainant has every right to get a vehicle which lies under the control of the driver and the opposite parties are duty bound to provide such a vehicle.  Due to the uncontrollable acceleration of the vehicle, which was noticed shortly after a few days from the date of its purchase, irreparable injuries have already been caused to the complainant.  It is also relevant to find that the opposite parties have in fact admitted this by saying that it is normal as per the vehicle specifications.  This amounts to unfair trade practice and deficiency of service, for which the opposite parties have to be made accountable.  The complainant had availed a vehicle loan for purchasing the above said disputed car and they were required to pay monthly EMI of Rs. 12,500/- even without using the vehicle. All the above said act of the opposite parties amounted to gross deficiency in service and unfair trade practice.  Thus the complainants are before us seeking direction against the opposite parties either to cure the defect of uncontrolled acceleration of the disputed vehicle or to refund its price along with 12% interest to the complainants. He also sought for an amount of Rs.5 lakhs towards compensation for the mental agony suffered and costs of the proceedings from the opposite parties.  Hence this complaint.

2)       Despite service of notice from this Forum, the opposite parties 1, 2, 3 and 4 appeared through their Counsel.  The opposite parties 1, 2, and 3 filed their written version.

3)       Version filed by the 1^st opposite party is as follows:

It is submitted that the allegations made by the complainants in the complaint are false and frivolous and the same has been filed with the ulterior motive to harass the 1^st opposite party. While the complainants alleged that the car purchased by him from the 2^nd opposite party to suffer from an inherent defect, no documentary evidence has been filed by them which prove that vehicle suffers from many defects. The executives of the 1^st opposite party had inspected the disputed vehicle of the complainant on numerous occasions and they could not find any manufacturing or inherent defects in the car. That prior to delivery of the subject car to the authorized dealers, the vehicle manufactured by the 1^st opposite party undergo strict and stringent inspections and quality checks.  The complainant has miserably failed to prove his complaint that a particular kind of defect falling within the purview of inherent/manufacturing defect had persisted in the subject car.  Neither any expert’s report nor any other convincing material produced by an appropriate laboratory had been filed before this Hon’ble Forum.  The Act itself in section 13 (1) (c) mandates that an automobile expert or a laboratory “shall” be appointed when dealing with the question whether a good suffers from any manufacturing defect or not.  It is clearly evident that the complainant had made no such efforts to appoint an expert or move any application to this Forum for the appointment of the same.  The Hon’ble Supreme Court and National Commission in catena of judgments had held that it is imperative that the defects as may be alleged in the complaint are thoroughly referred to and inspected by an automobile expert.  It is submitted that the decision to buy the subject car was solely made by the complainant upon referring to the subject car’s features and also after test driving the same and being fully satisfied with its performance.  Therefore, the complainant purchased the subject car on his own free will without any coercion of duress from the answering the respondent or any of its dealerships.  The complainant has alleged that the problem of excessive RPM arose within days of the purchase of the subject car, however any grievance with respect to the same was only raised to the 2^nd opposite party after 3 month of its purchase.  It is also submitted that one of the representatives of the 2^nd opposite party inspected the subject car of the complainant to find out any defects, but none were discovered.  It seems that the complainant in lieu of obtaining refund of the subject car seeks to raise false and frivolous averment in order for the respondents to accede to his claims. The second grievance raised by the complainant in the corresponding complaint is with respect to the fact that the subject car is not providing the promised mileage of 24 km/litre.  It is submitted that that the answering respondent does not specify any mileage of the cars it manufacturers and the reporting of the same is conducted by a third party agency based upon their own tests which is carried over numerous different terrains after driving over the same for thousands of kilometers.  The mileage of each car further is totally dependent upon the driving condition of the road, driving habits, tyre pressure and quality of fuel used etc, all of which is out of the control of the answering respondent. The allegations with respect to the increased RPM are also strictly denied as the same are merely fragments of imagination of the complainant.  Lastly, the allegations with respect to manufacturing defect raised in the corresponding paragraph in the complaint are vehemently denied and the say of the complainant in the absence of any proof cannot be treated as the gospel truth.  It is further evident from a reading of the corresponding paragraph that the subject car was again tested by the 2^nd opposite party on 22.01.2016 for any defects; however the report obtained thereafter conclusively provided no such defects being suffered by the subject car. The complainant has stated in his complaint that the representative of the 3^rd opposite party after carrying necessary inspection on the subject car on 18.02.2016 and 26.07.2016 came to conclusion that the subject car suffers from a defect. But no job card or repair orders or even proof of the inspections and the report have been attached by the complainant in support of his claim. Therefore, it is clear that the complainant is nothing but an imposter who is trying to misguide the Hon’ble Forum in order to achieve a favourable result without any cause of action. The inspection of the disputed car by the 4^th opposite party on 07.01.2017 also admittedly provided that the subject car did not suffer from any defect.  The subject car is covered under the warranty policy, no repair or replacement work of any parts was required as the same did not suffer from any defect as alleged.  Moreover, the averments with respect to the loan and EMI, does not pertain to the answering respondent therefore merits no response.  Moreover, the present complaint ought to be dismissed as it is not maintainable before this Hon’ble Forum as against the answering respondent. There were no deficiencies in service or unfair trade practice on the part of the opposite party. The complainant is not entitled for any of the reliefs sought for in the complaint. It is most humbly prayed that this Hon’ble Forum may be pleased to dismiss the complaint.

4)       Version filed by the 2^nd opposite party is as follows.

It is submitted that the complainant had approached this Forum as an experimental measure. Therefore the complaint is liable to be dismissed. It is submitted that after the successful run of the Honda Diesel Technology in India, Honda cars had longed its 7 seated Mobilio in 2014 with 2 engines namely i-VTEC and i-DTEC. i –VTEC stands for Petrol engine and i-DTEC stands for Diesel Engine. While developing i-DTEC engine, the manufacturer had put a specific strategy to introduce this vehicle as a more fuel efficient vehicle with minimum acceleration. The engine output at normal load gives the vehicle with minimum safe speed in respective gears without straining the engine or gear box when the clutch is release, the additional acceleration applied and the idling speed or RPM states normal at all times and self-movements happens only when gear is engaged. A full time turbo is used in i-DTEC vehicle eliminating turbo lag and enabling good intake of air at all time in the engine, minimizing the fuel consumption even though the vehicle has a kerb weight of 1,214 kgms.  These factors are mentioned in the brochure supplied to the complainant. The car was provided with warranty for 2 years by the 1^st opposite party. The contented of the complainant is that within days from the purchase of car that he noticed a strange phenomenon while driving the car on shifting the 1^st gear the RPM of the car increases suddenly from 820 to 1500 on releasing the clutch even without using the accelerator are denied by the 2^nd opposite party. It is contented that without giving acceleration the RPM shall not reach 1500.  It is also submitted that the vehicle is designed with more powerful components and features for getting more mileage and the vehicle is not having any kind of defects as alleged by the complainant.  The lack of acquaintance of the complainant with the modern features of the car was causing inconvenience to the complainant.   The 2^nd opposite party inspected the vehicle purchased by the complainant and the vehicle was found defect free and is performed as per the specifications of the model vehicle. The vehicle is certified by ARAI as having 24.2 km/ltr. and the achievement of the certified mileage depends on the driving habits of the complainant due to  the special features added to the engine the vehicle is having the capacity to auto select the speed required of a specified gear driving and the complainant is driving the vehicle in the conventional way causing inconvenience to him. In fact, a defect free vehicle was supplied to the complainant and the allegations raised by the complainant are therefore denied by the 2^nd opposite party. The allegation of the complainants that 2^nd complainant had developed pain to his left knee due to usage of the vehicle is denied by the 2^nd opposite party. The allegations of the complainants are that they had to hire other cars due to the latches of the opposite parties to rectify the defects are also denied by the 2^nd opposite party.  The minor repair of the vehicle was made then and there and the vehicle was return to the complainants and defects pointed out by the complainants are not due to any manufacturing defects of the vehicle.  All the services required by the complainants were provided by the 2^nd opposite party therefore, there is no deficient service or unfair trade practice on the part of the 2^nd opposite party. The allegations of the mental agony, hardships, financial loss suffered by the complainants are not supported by reality, therefore denied by the 2^nd opposite party.  Finally it is submitted that after covering more than 10741 kms the complainant are trying to tarnish the reputation of the 2^nd opposite party with intention to make unlawful enrichment and to harass the opposite parties. The 2^nd opposite party sought for the dismissal of the complaint as against the 2^nd opposite party with compensatory costs to the 2^nd opposite party.

5)       Version filed by the 3^rd opposite party

It is contended that this complaint is not maintainable as against the 3^rd opposite party since the 3^rd opposite party is not a necessary party in the complaint that the complaint is not a ‘consumer’ as stated in the definition of Consumer Protection Act, 1986.  The complainant had approached the 3^rd opposite party for the inspection of the subject vehicle upon the complaints pointed out by him and on inspection it was found that there were no defects as alleged by the complainant.  It is further submitted that no service or consideration exchanged between the complainants and the 3^rd opposite party so as to come within the purview of the Consumer Protection Act and the 3^rd opposite party had never received any consideration from the complainant for any alleged service. Therefore this complaint is not maintainable against the 3^rd opposite party and the 3^rd opposite party is a dealer and service provider of Honda cars and the case of the complainants is that the 3^rd opposite party had not rectified the alleged complaints put forward by the complaints. It is submitted that the subject vehicle has no issue as alleged by the complainants.  The complainants had approached the 3^rd opposite party complaining that the engine getting excess RPM while driving and low mileage on a detailed inspection of the vehicle this opposite party found that there were no defects and everything about the vehicle was found normal without pressing the accelerator the vehicle was getting high speed on 5^th gear as alleged by the complainant. The vehicle has only normal speed in 5^th gear. Therefore, the job card was closed stating no defects found in the vehicle. The opposite party therefore, had not raised any invoice against the checking of the vehicle. The functioning of air filter, injector, accelerator pedal, exhaust emission were all normal. Even in the road test the vehicle showed normal performance. The allegation of the complainant that the 3^rd opposite party could not find solution of the problems faced by the complainant is against the facts since there were no defects found as alleged by the complainant. Therefore, the complainants are not entitled for getting any of the reliefs claimed by them as there was no cause of action to file this complaint before this Forum.  It is requested that this complaint may be dismissed as frivolous, vexatious and experimental with heavy compensatory costs to the 3^rd opposite party.  

6)       Evidence in this consisted of the documentary evidence furnished by the complainants which were marked as Exbt.A1 to A4. The complainants had adduced no oral evidence. The opposite parties furnished neither oral nor documentary evidence.

7)       Issues came up for considerations are as follows:

1. Whether the complainants have proved any deficiency in service or unfair trade practice on the part of the opposite parties?
2. Whether the complainant is entitled to get necessary repairs or adjustments to resolve the uncontrolled acceleration in the subject vehicle or in the alternative to refund the price of the car with 12% interest thereon?
3. Whether the opposite parties are liable to pay Rs. 5 lakhs towards compensation for the alleged deficiency in service or unfair trade practice committed by the opposite parties and for the mental agony and hardships if any?
4. Whether the opposite parties are liable to pay costs of the proceedings to the complainant?

8)       Issue No. (i)

The complainant’s averments in the complaint about the defects in the vehicle purchased by him within days of its purchase are denied by the opposite parties. The complainants alleged that there was uncontrolled acceleration in the Honda Mobilio 1.5 EMT i-DTEC Diesel car and there was no mileage as promised by the 1^st opposite party and the RPM of the car increases suddenly from 820 to 1500 on releasing the clutch even without using the accelerator pedal etc were examined by the 2^nd and 3^rd opposite parties.  The 2^nd and 3^rd opposite parties stated that a comprehensive test was made by them to find out the issues raised by the complainants. The 3^rd opposite party has stated that they have made a derailed checking of the functioning of the air filter , injector, sensor, accelerator pedal, exhaust emission to ascertain whether there is any complaint in the functioning of the engine without making any charges for the comprehensive checking and they found that there were no defects as alleged by the complainants.  The road test made by the 3^rd opposite party also showed normal performance of the vehicle and they found no mileage issue as alleged by the complainants.  The 1^st opposite party manufacturer stated that the subject vehicle is introduced to the market after making various pre-delivery check-ups and the vehicle supplied to the complainants was a defect free ‘new variant’ vehicle. We find that except for the averments in the complaint, the complainants have not produced any expert evidence to show that the vehicle is suffering from inherent manufacturing defects.  Exbt. A1 is the certificate of registration of the subject vehicle with Reg.NO. KL-O7 C.C 3926.  Exbt.A2 is the invoice showing that the car was purchased by the complainants for Rs.8,52,700/-. Exbt. A3 and A4 are the job sheets issued by the 3^rd opposite party and we find that the Exbt.A3 and A4 are  not  sufficient  to  establish  the  inherent  manufacturing defect of the subject

vehicle. It is highly mandatory to submit an Expert Report showing the inherent manufacturing defect of the vehicle, to ascertain if there are any manufacturing defects in the vehicle. In the absence of an Expert opinion in the matter we are not in a position to allow the complaint filed by the complainants before this Forum. In the absence of substantial or concrete evidence, we are of the opinion, that the complainants miserably failed to establish any manufacturing defect in the vehicle or to establish any deficiency in service offered by the opposite parties or of any unfair trade practice committed by the opposite parties.  We therefore, decide the 1^st issue against the complainants.

9)       Issue No. (ii), (iii) and (iv)

Having found the issue No. (i) against the complainants, we are not inclined to consider and decide the issue No. (ii), (iii), and (iv).

In the result, we find that this complaint is liable to be dismissed.  Accordingly the complaint is dismissed.

         Pronounced in the open Forum on this the 27^th day of March 2018.

Sd/-Sheen Jose, Member

Sd/-Cherian K. Kuriakose, President

Sd/-Beena Kumari, V.K., Member

       Forwarded by Order

     Senior Superintendent

                                    APPENDIX

Complainant’s Exhibits:

Opposite party’s Exhibits:         Nil

            Date of Despatch :

By Hand      :

By Post       :                         ……………………..