Per :- Mr. Deshpande, President Place : BANDRA JUDGMENT The Opposite Party No.1 is the manufacturer and the Opposite Party No.2 is a dealer of Honda cars. On 10/10/2005, the Complainant purchased a ‘Honda-Accord’ car from the Opposite Party No.2 – Dealer; for an amount in sum of Rs.14,47,863/-. The Complainant received the delivery of the car on the same day at Nasik. [2] It is the case of the Complainant that within a period of four days, the vehicle in question was found to be defective, as the brakes were not functioning properly. Clutch mechanism was also not functioning properly. The Complainant took his car to the service centre and after a period of eight days, the vehicle was returned without attending the defect in clutch assembly. It is further case of the Complainant that again there had been problem with the vehicle and this time, the Complainant handed over the vehicle to the Opposite Party No.2 – Dealer; and the affected parts and clutch & break assembly were replaced. In the month of April-2006, there was again problem with the clutch assembly and the vehicle was taken to the service centre at Lalbag, Mumbai. Because of frequent defects and failures, the Complainant requested both the Opposite Parties, vide his letter dtd.25/5/2006, to replace the vehicle. [3] It is further case of the Complainant that aforesaid defects again surfaced in the month of July-2006 and this time, clutch assembly was replaced. According to the Complainant, he was required to pay an amount in sum of Rs.38,845/- for the repairs. It is the case of the Complainant that the vehicle in question is suffering from manufacturing defect and because of serious defects in the vehicle it is hazardous to the life & safety of the Complainant. The Complainant, in this complaint, has sought direction as against the Opposite Parties to refund him the price of the vehicle and/or to replace the vehicle besides payment of compensation in sum of Rs.1,00,000/- and reimbursement of the repair charges. [4] Pursuant to the notice of appearance issued by this Forum, the Opposite Party No.1 – Manufacturer; appeared and contested the complaint by filing its written version of defence and denied the allegations in the complaint about manufacturing defect in the vehicle as well as serious defects in the same. The Opposite Party No.1 – Manufacturer; referred to provisions in the warranty and submitted that consumable articles were not covered by warranty. Still then, by way of courtesy, at the first instance, clutch plates were replaced without charges. From the tenor of the written version, it is seen that according to the Opposite Party No.1 – Manufacturer; on inspection of the vehicle, it was found that the recurring problem was due to improper operation of the vehicle by the Complainant. [5] The Opposite Party No.2 – Dealer; filed its separate written version and denied allegations of deficiency in service on its part. It referred to running of the car and explained that from the date of purchase i.e. from the month of Oct-2005 to 29/3/2007, the vehicle in question had run for 50,500 km. and thus, an average of 100 km. per day. According to the Opposite Party No.2 – Dealer; running of the vehicle shows that there are no serious/inherent/ manufacturing defects present in the vehicle. The Opposite Party No.2 – Dealer; also adopted the same contentions, as alleged in the written version filed by the Opposite Party No.1 – Manufacturer. [6] Both the Opposite Parties took stand that delivery of the vehicle in question was taken at Nasik, and therefore, Consumer Forum at Nasik is conferred with territorial jurisdiction and this Forum has no territorial jurisdiction to try & decide the present complaint. [7] The Complainant filed his rejoinder to the written versions of defence, as filed by both the Opposite Parties and denied the contentions raised in the written versions and maintained that the vehicle in question suffers from serious manufacturing defects. [8] Parties to the complaint proceeding have filed their respective affidavits of evidence, copies of relevant documents as well as written notes of arguments. [9] We have gone through the pleadings, affidavits and documents as well as written notes of arguments filed by the parties. [10] We take the points that arise for our consideration and record our findings there-against as below:- Sr. No. | Points for consideration | Findings | 1. | Whether this Forum has territorial jurisdiction to try & decide the present complaint? | YES | 2. | Whether the Complainant has proved that there is manufacturing defect in the vehicle in question and it requires to be replaced? | NO | 3. | Whether the Complainant is entitled to reimbursement of price of the vehicle or repair charges? | NO | 4. | What order? | The complaint stands dismissed. |
REASONS FOR FINDINGS [11] There is no dispute between the parties to the complaint proceeding as regards the fact that the delivery of vehicle in question was received by the Complainant at Nasik. The Opposite Party No.2 – Dealer; has its office at Nasik from where delivery was taken. The Opposite Party No.1 – Manufacturer; has its office at Noida Industrial Area, Uttar Pradesh State. Perhaps, on the basis of the places where the Opposite Parties have their centers, the Opposite Parties have raised a contention to the effect that this Forum has no territorial jurisdiction to try & decide the present consumer complaint. In addition to that, from the contentions raised in the written versions filed by the Opposite Parties, it is seen that the Opposite Parties are harping upon the fact that delivery of vehicle in question was taken at Nasik. [12] In this context, both the Opposite Parties have overlooked provisions contained in Section-11(2)(c) of the Consumer Protection Act, 1986; which lays down that a consumer complaint is maintainable before the District Forum within the territorial jurisdiction of which, the cause of action wholly or partly accrues. In the present case, the car in question was used by the Complainant at Mumbai. The Complainant is a resident of Borivali and thus, within the territorial jurisdiction of this Forum. The vehicle in question was repaired at different service centers at Mumbai. The words & expression – ‘cause of action’, connotes such bundle of facts, which the petitioner/plaintiff/complainant will have to prove to become successful in lis. The Complainant will have to prove that time & again, there were breakdowns and disturbances, which required frequent visits to the service centers for repairs of the vehicle in question. Therefore, the cause of action to the Complainant had occurred within the territorial jurisdiction of this Forum. In this respect, the Complainant has rightly relied upon the decision of the Hon’ble National Consumer Disputes Redressal Commission in the case of Neo Hydraulics through the partner, Kamal Kumar Bardia Vs. Smt. Leena Sanjay Maloo W/o Shri Sanjay Maloo, decided on 7/11/2008. In view of above, we turn down the objections raised by the Opposite Parties regarding territorial jurisdiction of this Forum. [13] The Complainant, in his complaint, has referred to different instances of breakdowns and stoppages on account of which, car in question was required to be repaired. In the complaint, the Complainant has referred to tax invoice-cum-job card vis-à-vis such problems/breakdowns on account of which, car was required to be repaired. [14] First instance, as referred to in the complaint, is dtd.31/10/2005, when the vehicle in question was required to be repaired. Instead of repeating the details, as per narration in the complaint, we propose to give the details in a tabular form so that at a glance required details are available:- Visit Date | Nature of Repairs | Cost | Annexure | 19/11/2005 | Replaced clutch plates and pressure plates | Nil | C | 28/10/2005 and 27/12/2005 | Free Servicing | Nil | E & F | 19/4/2006 | Engine oil | Rs.632/- | G | 27/7/2006 | Clutch assembly replaced | Rs.7,853/- | J | 8/2/2007 | General repairs | Rs.5,570/- | K | 29/3/2007 | Clutch transmission assembly and brakes | Rs.38,845/- | L |
[15] While dealing with the averments in the complaint with regard to the details of the repairs in the context of job cards, the Opposite Party No.2 – Dealer; vide its letter dtd.6/10/2006, a copy of which is produced on the record alongwith the complaint at Annexure-2; explained to the Complainant that on two occasions, clutch assembly of the vehicle in question was replaced, but it was done free of cost. In the body of the letter, it was mentioned that clutch assembly suffered damage due to improper operation while the vehicle in question was in motion. It was explained that damage was mainly due to the typical driving habits resulting thereby in a situation like floating clutch. Contentions raised in the written version filed by the Opposite Party No.1 – Manufacturer; are on the same lines, which show that the defence of the Opposite Party No.1 – Manufacturer; that the frequent breakdowns and particularly, problem with the clutch assembly had arisen due to improper operation while the vehicle in question was in motion has not appeared for the first time, but it had already appeared in reply notice dtd.6/10/2006. [16] Then, close reading of job-card/invoice referred to in the chart, shows that first two job-cards (Exhibit-‘C’ & ‘F’) pertained to free servicing. Job-card dtd.19/4/2006 (Exhibit-G) shows that engine oil was changed and there was problem with the clutch, which was found to be hard to operate. The Opposite Parties, in their written versions, have mentioned that clutch assembly was replaced twice free of cost. Job-card dtd.27/7/2006 (Exhibit-J), contains an entry in the form of an observation to the effect that – ‘BRAKES GRAB SOMETIMES’ and ‘CLUTCH PEDAL HARD’. This shows that problem with clutch assembly and brakes had continued. With regard to these problems, the Opposite Parties have taken stand that the defect had arisen due to defective operation of the vehicle in question. Still then, the vehicle in question had not stopped functioning or it was not permanently kept in the garage. [17] Kilometer reading, as incorporated in the job-cards reveals that vehicle in question had run 5,191 km. from 10/10/2005 to 27/12/2005. Thus, within a period of two months from purchase, the vehicle in question had run more than 5000 km. Job-card at Exhibit-G, shows that 19/4/2006 i.e. within a period of six months, the vehicle had run 15,890 km. Job-card dtd.27/7/2006, at Exhibit-J, shows that the vehicle had run 26,401 km. i.e. within duration of nine months. Last reading of mileage is dtd.29/3/2007, Job-Card at Exhibit-C, which shows that the vehicle had run 50,580 km. As mentioned above, delivery of vehicle was received on 10/10/2005 and the kilometer reading of 50,580 km. was recorded on 29/3/2007. The Opposite Party No.2 – Dealer; in paragraph (21) of its written version of defence, has highlighted these facts and has explained that during the period of 18 months, vehicle in question had completed gross reading of 50,500 km. It comes around 100 km. per day. A vehicle having serious/inherent manufacturing defects would not complete 50,000 km. running within a span of 18 months and certainly this fact substantiate the contention of the Opposite Parties that there was no serious defect in the vehicle in question. [18] Apart from that, the Complainant has not got examined the vehicle to be inspected by any authorized laboratory or an automobile engineer to elicit an opinion that the vehicle in question is having serious manufacturing defects. Merely because the vehicle was required to be taken to service centers for conducting repairs, it cannot be inferred that the vehicle suffers from serious defects. Moreover, the repairs, which were undertaken, pertained to breakdown of brake and clutch assembly. The Opposite Parties have explained that such breakdowns had occurred due to defective operation. [19] Still then, to substantiate this contention that the vehicle in question suffers from serious defects and frequent repairs is a circumstance in itself to substantiate the contention of the Complainant that the vehicle suffers from serious defects, the Complainant has relied upon decision of the Hon’ble National Consumer Disputes Redressal Commission in First Appeal No.441 of 1995, (In the case of Mahindra & Mahindra Ltd. Vs. Mahesh Sukhthankar & Ors.); decided on 16/2/2004. In that case, some parts were replaced twice or thrice, but there was no improvement in the function of the vehicle therein. It appears that there was a report submitted by an engineer that there were major defects. This is not the case here. [20] Next case relied upon by the Complainant is the decision of the Hon’ble Supreme Court in Jose Philip Mampillil Vs. Premier Automobiles Ltd. ~ AIR-2004-SC-1529. In that case also, the Court Commissioner had inspected the vehicle and had set out large number of defects, which were found in the vehicle therein. In fact, Hon’ble Supreme Court observed that the defective car was sought to be sold as a brand new car. That is not a case here and the ratio cannot be made applicable. [21] Next case relied upon by the Complainant is decision of the Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No.1298 of 2001 (In the matters of Marikar (Motors) Ltd. Vs. Lalan Carmu & Anr.); decided on 24/3/2003. But in that case, the question was as to whether the dealer could be held liable besides the manufacturer and it was found that since the dealer had received the consideration, it cannot be absolved. [22] Last decision in this context is the decision of the Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No.240 of 2002 (In the matters of M/s. Scooters India Ltd. & Anr. Vs. Madhabananda Mohanty & Ors.); decided on 7/2/2003 and the Complainant has relied upon the observations on internal page (04) of the said decision, where it was observed that it was not always necessary for a consumer to given an expert testimony, but it must be shown that use of the vehicle has been substantially impaired on account of defects. In the present case, there is no expert testimony and at the same time, there is no evidence that the vehicle in question could not come on road because of serious defects, but on the contrary, the record shows that the vehicle had run more than 50,500 km. during a span of 18 months. Therefore, these observations without presence of specific facts would not be applicable to the present case. [23] On reading of evidence, as a whole, we find that no doubt the vehicle in question was required to be taken to the service center for repairs, but the problem generally pertained to clutch assembly and brakes operation. Twice the clutch assembly was replaced free of cost. Provisions in the warranty card shows that it was not applicable to consumable parts. It does not appear that the Opposite Parties had charged for spare-parts or repairs during the warranty period. Upon reading the evidence, as a whole, we find that the Complainant has failed to establish that the vehicle in question suffers from serious manufacturing defects, which warrants direction to the Opposite Parties to replace the vehicle or refund the price of the vehicle. With this, we proceed to pass the order as below:- ORDER The complaint stands dismissed. No order as to costs. Parties shall be informed accordingly, by sending certified copies of this order.
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT[HONABLE MR. MR.V.G.JOSHI] Member | |
