SMT.MOLYKUTTY MATHEW : MEMBER

     This is a  complaint filed by the complainant  U/S 12 of the Consumer Protection Act 1986 for an order directing the OP’s to replace  a brand  new Honda Brio car or refund Rs.6,00,000/- or to replace all the defective components and parts used in the car by new and defect free components  along with  OP.NO.1 is directed to pay compensation of Rs.1,50,000/- and cost to the  complainant for the deficiency of and unfair trade practice on the part of OP’s.

  The brief of the complaint :

   The  complainant approached the 2^nd OP’s office on 30/12/2016 and enquiries regarding the purchase of a brand new Honda Brio car.  The employee under 2^nd OP by name Praneesh who has deputed by 2^nd OP to discuss the matter with complainant. Then the complainant purchased a Honda Brio car from 2^nd OP on 6/1/2017 by paying a consideration of Rs.5,36,900/-.  At the time of  purchasing the car, the complainant could not see any patent defect and the car appeared to be a  brand new one from the external appearance.  The colour of the car is Tafeta white, chassis No. is MAKDD 173 AGN 310438 and Engine No. is L12B34019488.  The complainant spent more than Rs.75,000- towards insurance, road tax and other incidental expenses for getting temporary registration.  Thereafter the complainant approached the office of Joint RTO Thalassery for  permanent registration of the said vehicle on 13/1/2017 for  inspection of the  vehicle and regarding permanent registration.  But the Joint RTO Thalassery refused to register the vehicle permanently without special sanction of the Joint RTO since the vehicle is manufactured in the previous financial year.  The said vehicle is manufactured during 2016 and the same is  Bharat stage III emission standard complaint only.  Then the complainant decided to examine the vehicle with assistance of expert . On perusal of wind shield used by the car is manufactured in the year  of 2015.  Moreover several components of the said vehicle have been already rusted.  The components such as nuts, bolts and other accessories used in the battery terminal has been rusted.  The 2^nd OP deceived the complainant and persuaded to purchase the car  actually manufactured in the year 2015 with  oblique motive and by suppressing material facts and by misrepresenting the complainant that the car shown to her was a brand new one.  Then the complainant contacted the 2^nd OP on 13/1/2017 and in formed the matter to  2^nd OP.  The officials of 2^nd OP visited the complainant’s house and undertook to clear the problem with Joint RTO Thalassery.  Thereafter the complainant issued a lawyer notice to both OPs.  Both OPs received the notice and send a reply stating  false contentions also.  Thereafter the complainant was forced to register the car in view of statutory compulsion as” KL58U3136”.  The act of OP’s the complainant caused much mental agony  and financial loss .  So there is deficiency of service and unfair trade practice on the part of OP’s.   Hence the complaint.

       After  filing the  complaint  notice issued to both OP’s . Both OPs received the notice and  filed their written version.  1^st OP contended that the relationship between OPs 1&2 is on principal to principal basis.  The sale of the car and after service are exclusively provided by authorised dealer ie, 2^nd OP.  In the case of any manufacturing defect that 1^st OP is required to meet its obligations as per the terms of the warranty.  1^st OP also contended that any manufacturing defect in the vehicle in question have been decided effectively and successfully only after obtaining expert  opinion in that behalf.  In this case 1^st  OP have not provide any service to the complainant and there is no deficiency in service and no manufacturing defect of the vehicle and no liability to replace the vehicle and no compensation paid to the complainant.  There is no deficiency of service and unfair trade practice on the part of  1^st OP and the complaint may be dismissed.

   2^nd  OP contended that he received the car from 1^st OP on 1^st September 2016 and the car manufactured in the year 2016 itself.  The car manufactured and distributed in the year 2016 and there is no rust in any parts of the vehicle.  The complainant received the vehicle after thorough checking and it was acknowledged by the complainant with full satisfaction.  The 2^nd OP says that the parts of every  vehicle of all the companies can be manufactured in different dates and only the date of manufacture of engine and chassis  will be considered only  on the basis of date of chassis and engine.  2^nd OP says that there is no deficiency of service on their part  and the complaint may be dismissed.

       On the basis  of the rival contentions by the pleadings the  following  issues  were framed for consideration.

1. Whether there is  any deficiency of service   on the part of the opposite parties?
2. Whether the complainant is entitled for any relief?
3. Relief and cost.

     The evidence consists of the oral testimony of PWs1 &2 and  Exts. A1 to A9 and Ext.C1 were marked . On OP’s side DW1 was examined and  Exts.B1 to B3  marked.  Both sides argued the matter before the commission  also.

Issue No.1: 

           The   Complainant  adduced evidence  before the commission by submitting  her chief affidavit in lieu of  her chief examination to the tune of the pleadings in the complaint and denying the  contentions in the version.  Complainant was  examined as PW1 .    According to the complainant as per  Ext.A1 the tax invoice dtd.6/1/2017 shows  the Ex-factory price of the Honda Brio SMT(1-VTEC) BS III is Rs.5,36,900/-.  In Ext.A2 is the certificate  cum insurance policy.  In Ext.A3 is the sale certificate and contains the vehicle details.  In Ext.A4 contains the temporary certificate of registration. In Ext.A5 is the road tax receipt for  TR 5( c)see Rule 90(a)of KTC,Govt. of Kerala motor Vehicle Department dtd.7/1/2017. In Ext.A6 is the  copy of lawyer notice. In Ext.A7 is the  postal receipt and Ext.A8 is the acknowledgment card.  In Ext.A9 is the reply notice send by 2^nd OP to complainant’s counsel. According to the complainant the wind shield used by the said car is manufactured in the year 2015 the Honda Brio car Tafeta white manufactured in January 2016 and sold by OP to complainant on 6/1/2017.  Further contended that raising the bonnet and under body portion and several components of the  vehicle is substantially rusted. Then the complainant filed a petition before the commission to appoint an expert commissioner to inspect  the vehicle and filed a report before the commission.  As per IA.No.24/2017 one Mr.Sreenivasan .P Assistant Motor  Vehicle Inspector, Regional Transport Office, Kannur appointed as the expert.  He filed the report before the commission and marked as Ext.C1.  Both sides filed objection in the report also.  As per Ext.C1 report the inspection date on 6/3/2017 the parts were found rusted are inner side of front bonnet, both LH and RH side front drive axles, radiator mounting brackets, silencer mounting bracket, shock absorber mounting bolt on rear LH side and negative terminal fasters of battery etc. The estimate cost for replacing the above said rusted parts is Rs.30,000/-.  The window glasses are manufactured in 2015.  But the manufacturing year of spare parts will not consider for specifying the model of the vehicle.  In the evidence of PW2 stated that  വാഹനത്തിന് യാതൊരുവിധ manufacturing defect ഉള്ളതായി   Ext.C1 report ൽ പറയുന്നുണ്ടോ? ഇല്ല.  അങ്ങനെ പറയാതിരുന്നത് വാഹനത്തിന് manufacturing defect ഇല്ലാത്തതുകൊണ്ടാണ്? ശരിയാണ്. In the evidence of DW1 who clearly states that” കോടതിയിൽ panel of expert ന്ർറെ list കൊടുത്ത്, കോടതി നിയോഗിച്ച expert ആണ് വാഹനം പരിശോധിച്ചത് ? അതെ.  ഈ കേസ്സിലെ expert ന് എന്തെങ്കിലും bias ഈ കേസ്സിലെ തർക്കവിഷയവുമായിട്ടുണ്ട് എന്ന ആക്ഷേപം നിങ്ങൾക്കില്ല? ഇല്ല. Moreover he stated that Honda web siteൽ  Honda യുടെ parts ന്ർറെ price list കാണില്ല .  Service authorized centre   ൽ മാത്രമേ കാണുകയുള്ളൂ . സാധാരണ manufacturing defect ബോധ്യപ്പെട്ടാൽ അത്  replace ചെയ്തുകൊടുക്കാറുണ്ടോ ? Approval ഉണ്ടെങ്കിൽ .  So in the evidence of PWs 1 and 2 clearly shows that some parts of the Honda Brio car found rusted.  As per Ext.C1 report the estimate cost for  replacing the rusted parts of the vehicle is Rs.30,000/-.  But the OP’s  are not ready to replace the rusted parts.  Since there is  no evidence with regard to  any other manufacturing defect on the vehicle.  So we are not intending to order either to deliver a new Honda Brio car or to refund the prize of the car.  In the evidence of  DW1 who deposed that തുരുമ്പുള്ള വാഹനമോ  year out  ആയ വാഹനമോ sale ചെയ്യാൻ company നിങ്ങളോട് പറയാറുണ്ടോ?   തുരുമ്പുള്ള വാഹനം sale ചെയ്യാൻ  പറയാറില്ല .Year out ആയ വാഹനം special scheme  ൽ ഉൾപ്പെടുത്തി customers നോട് communicate ചെയ്ത്  sale നടത്താറുണ്ട്.    It is clear that the new Honda Brio car manufactured 1^st January 2016 and sold on 6/1/2017. So the act of OP’s the complainant caused much mental agony  and financial loss .  There is deficiency of service and unfair trade practice on the part of OP’s. Hence the issue No.1 found in favour of the complainant and answered accordingly.

Issue Nos. 2&3:  

    As discussed above  since there is deficiency in service and unfair trade practice on the part of OP’s.  The complainant is entitled to get the  estimate cost for  replacing the rusted parts of the vehicle is Rs.30,000/- from 1^st OP.  Due to the aforesaid latches the complainant has suffered much mental agony and  hardship.  So the opposite parties 1&2 are jointly and severally liable to  pay compensation of Rs.35,000/- to the complainant along with Rs.10,000/- as litigation cost.    Thus the issue Nos. 2&3 are also accordingly answered.

             In the result the complaint is allowed in part  directing the  1^st opposite party to pay Rs.30,000/- as estimated cost for replacing the rusted parts of the vehicle along with opposite parties 1 & 2 are jointly and severally liable to pay Rs.35,000/- as compensation for mental agony caused to the complainant and Rs.10000/- as litigation cost  within  30 days of  receipt  of this order. In default the amount of  Rs.30,000/- carries 12% interest  per annum  from the date of order till realization.   Failing which the  complainant is at liberty to  execute  the  order as  per the  provisions  of Consumer Protection Act 2019. 

Exts:

A1-Photo copy of quotation

A2- insurance policy

A3-Sales certificate

A4-Temporary certificate of registration

A5-Road tax fee

A6- lawyer notice

A7-postal receipt

A8-Acknowledgment card

A9-Reply notice

C1- Commission report

B1-E-way bill

B2- Reply notice

B3-Postal receipt

PW1- Binshi Scaria

DW1-Ribhi Mohyudheen-witness of 2^nd OP

Sd/                                                             Sd/                                                   Sd/

PRESIDENT                                             MEMBER                                      MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR