COMPLAINT FILED ON: 13.05.2010

DISPOED ON: 07.12.2010

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

DATED THIS THE 7^TH DECEMBER 2010

  PRESENT:-  SRI. B. S. REDDY                            PRESIDENT

                     SMT. M. YASHODHAMMA               MEMBER                   

                     SRI. A. MUNIYAPPA                         MEMBER              

COMPLAINT No.1094/2010

O R D E R

SRI. B.S. REDDY, PRESIDENT

The complainant filed this complaint seeking direction against the OPs to replace the clutch of the complainant’s vehicle and to rectify / replace the roof light at the cost of the OPs on the allegations of deficiency in service on the part of the OPs.

2.      The case of the complainant is to be stated in brief is that:

The complainant purchased Honda City ZX 1.5 EXI BSIII through Government of India, Ministry of Defence – Canteen Stores Department Area Depot Chennai vide M/s Sundaram Honda Chennai, Anna Road Chennai on 27.01.2006. The registration No.TN-02 W-407. The complainant has been getting the car serviced at Dakshin Honda Bangalore since 31.01.2006. When the car was given for 10,000 kms service on 01.09.2009, he was informed by the dealer that the clutch plate needs replacement. The car had done 9,939 kms only by then. On further checking with Dakshin Honda he was informed that the clutch plate should have not worn off so soon and that he take up the issue with Honda Siel Cars India. On 28.04.2010 he had sent a letter to the President and CEO of Honda Company and also sent a mail to the customer care department. The complainant received reply from Manager Customer care who informed that the matter would be resolved after getting the details from Dakshin Honda. He also contacted Dakshin Honda (GM – Mr. Raju) who informed that the complainant has to pay for the replacement of the clutch plate. Then the complainant spoke to the Manager Customer Care on 03.05.2010 and informed him that as it was a failure of material the company should bear the cost. Subsequently the complainant wrote to Mr. Takashi Nagai dated 03.05.2010 requesting him to look into the matter. As the complainant not received any reply from the President of the company, he left with no option from he has approached this Forum.         

          Further it is stated that the complainant is driving cars for the last 25 years and he had owned 5 cars, he had no problem with any of the clutch plates of the cars he had driven so far. The car is single driven; on an average the car runs not more than 8 kms in a day. Because of the nature of his job, the complainant used to be out of station every 2 months. The clutch plate is so designed that it should last for at least 80,000 kms, whereas he has done only 9,939 kms when he was informed that it needs to replacement. The complainant was also informed by Honda representative that components are manufactured in the factory and quality control is assured by carrying out random checks. When random checks are carried out there is every possibility of defective piece passing the test. The complainant has paid handsome price for the car and therefore expect quality product. There was no reason for the clutch plate to have failed within 10,000 kms of driving when it should have been lasted at least 80,000 kms. In addition there have been other problems with car such as the roof light and noise from the wheel which have been pointed time and again to Dakshin Honda service centre. Honda has a warranty of 3 years or 80,000 kms which ever is earlier. Honda company has total disregard for the customer sentiments. The complainant has driven only 10,000 kms and if that happens to be out side per view of the warranty period by time only and not by distance then Honda company should take responsibility to attend to the defect even though the warranty period is over. The car warranty expired on 27.01.2009 and the complainant was informed about the defect on 01.09.2009. Thus the complaint.    

3.      OP-1 inspite of service notice failed to appear, hence placed ex-parte.

4.      On appearance, OP-2 filed version contending that the complaint is not maintainable. The alleged defect was noticed by the complainant after the purchase of the said car and after running a substantial mileage. The car is out of warranty since it was purchased on 27.01.2006 whereas the complaint has been filed on 20.05.2010. The complainant has not alleged anything against OP-2; the complaint deserves to be dismissed. It is submitted that the relationship between OPs-1 and 2 are strictly on a principal to principal basis and each party is responsible for its own action. The car has been purchased in the name of Commander Vinod Kumar Gawri for commercial purpose to accelerate the growth and expansion of the complainant already existing business and the same has been admitted by the complainant. The car is an asset to Commander Vindo Kumar Gawri’s business. Therefore the same has nexus with the profit and loss of the business of the complainant. Any goods purchased for commercial purposes and a purchaser of goods utilizing goods for commercial purposes cannot seek protection under the Act as Section 2(1)(d) of the Act excludes from its ambit. The complainant is trying to get his car repaired free of charge, which was damaged by own negligent acts. The alleged manufacturing defect does not exist and the complaint is based on conjectures and surmises. The complainant is not entitled for replacement of the vehicle or refund of any amount, where he has failed to substantiate the grounds. The complaint involves several disputed question of facts and law, which would require both the parties to give oral and documentary evidence and therefore, the complaint cannot be adjudicated in summary proceedings and only ordinary Civil Courts has jurisdiction to decide the present complaint. Therefore the complainant may be directed to approach the Civil Court of competent jurisdiction.

          It is denied that on further checking with the Dakshin Honda informed the complainant that the clutch plate should have not worn off so soon and complainant take up the issue with OP-2. However wearing of clutch / damage is due to improper operation of the vehicle while in motion, the problem in the subject vehicle has arisen due to improper operation of the vehicle i.e. driving the car with clutch pedal pressed by the user will lead to slipping of clutch disc between flywheel and pressure plate. In this condition pressure applied on the diaphragm spring of the pressure will not allow clutch disc to have 100% contact between pressure plate and flywheel which will lead to abnormal wear of the clutch disc and eventually clutch failure. The clutch plates and pressure plates come within category of consumable parts and not covered under warranty. OP-1 was right while asking for the payment of clutch plates since the same are not covered under the warranty. Service is the responsibility of OP-1 and OP-2 can only be impleaded in case it is proven manufacturing defect. The clutch is consumable part and wears out with the usage of the vehicle. Therefore OP-2 cannot be liable for any consequent problem in the vehicle. Low frequency of usage is a choice of the complainant therefore running vehicle in city limits and limiting to 11,729 kms has no bearing in the present matter. The complainant failed to prove that the clutch plates are designed for at least 80,000 kms in all the conditions even when the vehicle is driven with clutch pedal pressed for longer duration. It is denied that OP-2 told the complainant that the components are manufactured in the factory and quality control make random checks. Hence it is prayed to dismiss the complaint.        

5.      In order to substantiate the complaint averments, the complainant filed affidavit evidence. The Manager – Legal of OP-2 filed affidavit evidence in support of the defence version.

6.      Arguments on both sides heard. Points for consideration are:

                   Point No.1:- Whether the complainant proved the

                                      deficiency in service on the part of the

                                      OPs?

Point No.2:- Whether the complainant is entitled for

                   the relief’s now claimed?

Point No.3:- To what Order?

7.      We record our findings on the above points:

Point No.1:- Negative.

Point No.2:- Negative. 

Point No.3:- As per final Order.

R E A S O N S

8.      At the outset it is not at dispute that the complainant purchased Honda City ZX 1.5 EXI BSIII on 27.01.2006 from M/s Sundram Honda, Chennai for an amount of Rs.5,75,985/- as per sales invoice produced. The complainant has been getting the said car serviced at OP-1 service centre. OP-2 is the manufacturer of the said car.

The complainant claims that on 01.09.2009 when the car was given for 10,000 kms service to OP-1, he was informed that the clutch plate needs replacement; the car had done 9,939 kms only by then. It is his claim that the clutch plate should last for at least 80,000 kms, whereas he had done only 9,939 kms when the vehicle was given for servicing. The warranty is of 3 years or 80,000 kms whichever is earlier. The warranty period by time of 3 years is over, but warranty by distance is not completed as such OPs are bound to replace the defective clutch plate free of cost; as the same is manufacturing defect.

9.      OP-2 in the version pleaded that wearing of clutch / damage is due to improper operation of vehicle while in motion. The problem in the vehicle has arisen due to improper operation of the vehicle i.e., driving the car clutch pedal pressed by the user will lead to slipping of clutch disc between flywheel and pressure plate. In this condition pressure applied on the diaphragm spring of the pressure will not allow clutch disc to have 100% contact between pressure plate and flywheel which will lead to abnormal wear of the clutch disc and eventually clutch failure. It may be noted that as per the warranty, period of 24 months or 40,000 kms whichever is earlier. The vehicle was purchased on 27.01.2006; the same was given for servicing on 01.09.2009. When the complainant was informed about the defect in the clutch plate; the period of 24 months warranty was completed on 26.01.2008. Merely because the distance of 40,000 kms is not covered, it cannot be said that OPs are liable to replace the clutch plate. The warranty is clear regarding the period or distance whichever is earlier. The period of 24 months warranty is already completed, as such it cannot be said that OPs are liable to replace the clutch plate of the vehicle free of cost. The complainant has not produced any expert opinion of automobile engineer to prove that the clutch plate of the vehicle is having manufacturing defect. A copy of the writers on clutch and its usage produced by the complainant is marked as exhibit No.4 on which strong reliance has been placed by the complainant where in the last para reads as under:

‘A normal car clutch in an automatic transmission vehicle lasts around 50,000 miles. Clutches in manual transmission vehicles tend to last longer and may last for 1,00,000 miles. The actual life of the clutch however depends on usage. Careful handling extends the clutch’s life to between 80,000 miles and 1,20,000 miles, whereas rough usage could end the clutch’s life at around 35,000 miles. Frequent use of the clutch owing to rash driving, when driving through bad roads and through areas of high traffic tend to wear away the clutch faster.’

          From the above it becomes clear that rash driving of the vehicle, driving through bad roads and areas of high traffic tend to wear away the clutch faster. Therefore it becomes clear that the actual life of the clutch depends on usage. There is no material that irrespective method of the usage, the clutch’s minimum life is of 80,000 kms.

10.    It is contended by the complainant that he is using the cars for the last 25 years and he had taken extra caution while driving and managing the present car. There is no possibility of rough usage and he is the only person who used to drive the car, no third party was allowed to drive the same. The other cars which he had used earlier never experienced problems with the clutch plates. Thus it is contended that it is because of the manufacturing defect of the clutch plates; the same are worn out only at a distance covering below 10,000 kms. In our view it cannot be said that it is the only complainant who used to drive the car in question, in the letter addressed to OP-2 President and CEO on 28.04.2010 marked as exhibit No.5 the complainant has clearly stated that himself and his wife are the only persons who drive the car. Thus it becomes clear that the wife of this complainant also used to drive the car as such it cannot be said that it is only the complainant who was making use of the car. It appears that because of improper operation of the vehicle the clutch plate has been worn out, even before covering the distance of 10,000 kms. OPs cannot be blamed for the same. We are unable to accept without there being any expert opinion that the clutch pates is having manufacturing defect. Under these circumstances we are of the view that the complainant failed to prove the deficiency in service on the part of the OPs. In view of the same; the complainant is not entitled for any of the releifs claimed. Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainant is dismissed.  Considering the nature of dispute no order as to costs.

Send copy of this order to both the parties free of costs.

(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 7^th day of December 2010.)

PRESIDENT

MEMBER                                                      MEMBER 

 Snm: