Haryana

Panchkula

CC/122/2015

DARSHAN KUMAR. - Complainant(s)

Versus

M/S HARMONY HONDA. - Opp.Party(s)

D.K DOGRA.

27 Jan 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.

                                                                  

Consumer Complaint No	:	122 of 2015
Date of Institution	:	01.07.2015
Date of Decision	:	27.01.2016

                                                                                          

 

Darshan Kumar son of Shri Ram Dhari aged about 56 years r/o H.No.109, Sector 21, Panchkula (Haryana).

                                                                                          ….Complainant.

Versus

 

1. M/s Harmony Honda, Joshi Autolinks Private Limited Plot No.389, Industrial Area, Phase-1 Panchkula, District Panchkula (Haryana) through its Manager.
2. M/s Honda Cars India Limited Plot No.A-1, Sector 40-41, Surajpur-Kasna Road, Greater Noida Industrial Development Area, District Gautam Budh Nagar (U.P) Pin Code-201306, through its Manager.
3. M/s IFFCO Tokio General Insurance Co.Limited IFFCO Tower, 4^th and 5^th Floor, Plot No.3 Sector 29, Gurgaon-Pin Code-122001 (Haryana) through its Manager.

                                                                                      ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

Before:                 Mr.Dharam Pal, President.

                             Mrs.Anita Kapoor, Member.

              Mr.S.P.Attri, Member.

 

For the Parties:     Mr.D.K.Dogra, Adv. for the complainant. 

                             Mr.Rajesh Verma, Adv. for OP No.1.

Mr.Tarun Gupta, Adv., for the Op No.2.

                             Op No.3 is ex-parte.

 

ORDER

(Dharam Pal, President)

 

1.                          The complainant-Darshan Kumar has filed the present complaint against the Ops with the averments that he had purchased New Honda Passenger Car Amaze 1.5 VX MT from OP No.1 on 18.04.2013 vide invoice No.SAL-INV-DD123-1314-18 having temporary registration No.HR99 MX (Temp) 7136  and later on it was allotted regular registration No.HR03Q-9109.  The complainant also obtained extended warranty which was valid upto 4^th year/80,000 kms by paying Rs.3394/- vide invoice No.H1300013 dated 18.04.2013. The  OP No.1 also got the vehicle insured from OP No.3 being its agent. The OP No.3 issued policy No.ITG/82053731 for private car package policy covering the period from 18.04.2013 to 17.04.2014 for total IDV of Rs.729,695/- and accordingly charged a sum of Rs.27417/- as premium from complainant.  On 01.07.2013 the complainant visited Op No.1 for free service of the vehicle but he had to pay Rs.2970/- vide invoice No.SER-INV-DD123-1314-1458 dated 01.07.2013 on account of miscellaneous expenses.  The said invoice had recommendations such as “car is not OK due to time customer will send car again”. On 02.07.2013 when it was raining, the car got stopped suddenly while the complainant was going on road at Sector 5, Panchkula and in the meantime another vehicle hit the car from back side. Thereafter the car could not start. The matter was intimated to OP No.1 who was acting agent of OP No.2 and OP No.3 and subsequently OP No.1 got claim intimation letter signed on 04.07.2013 from complainant. The vehicle was inspected by Surveyor M/s Protech Engineers and Loss Assessors represented by Mr.Pukhraj Singh, who temporary estimated the total loss suffered in respect of damage to the vehicle as Rs.4,15,368/- including Block Assembly Cylinder.  A proforma invoice dated 05.07.2013 was also issued wherein coverage of mileage of 10710 KM had been shown and total amount mentioned was Rs.2,59,665/-. On 13.07.2013 when the vehicle had same reading then OP No.1 asked for replacement of the engine of the vehicle with new one to be transported from Japan and received Rs.50,000/- from complainant as part payment vide receipt No.1535 dated 18.07.2013 because the total cost of the engine was Rs.2 lacs. It has been further averred that the surveyor had visited the place of OP No.1 when the damaged vehicle was brought there and said surveyor had got the vehicle/engine dismantled to know the loss details. However, the OP No.1 had assured that no expenses would be incurred by the complainant in terms of  parts of the vehicle as well as labour involved besides repairing etc. The complainant was not delivered the vehicle despite visiting several times after getting the entire defects rectified and replacement of vital part as a result thereof the complainant continued suffering mental torture, agony, harassment and financial loss including consequential loss. The act and conduct of the Ops falls under the definition of deficiency in service and unfair trade practice because the complainant had been given extended warranty in addition to normal warranty but his vehicle was also covered under the package insurance policy but despite that the OP No.1 had wrongly charged Rs.50,000/- as advance.  The complainant also got served notices/legal notices upon the Ops but the OP No.1 issued a letter dated 04.10.2013 and demanded parking charges @ Rs.500/- per day from the complainant and asked to pay Rs.160,895/-.  Ultimately the complainant forced and coerced to pay Rs.1,60,895/- vide receipt No.2946 and further Rs.10,000/- (parking charges) under invoice No.SER-INV_DD123-1314-3854  dated 25.11.2013.Thereafter the OP No.1 released the vehicle without satisfaction  of the complainant qua aspect of repair, service and removal of defects etc. which remained as it is. The present complaint is well within limitation and the complainant has cause of action to file the same.  In evidence the complainant has tendered affidavit and documents Annexure CA, Annexure C1 to Annexure C26 and Annexure C14/1.

2.                          On notice Ops appeared and contested the complaint by filing separate replies. OP No.1 in its reply has submitted that the present complaint it not maintainable as the vehicle in question was sold subject to conditions of warranty and extended warranty but in the present case the engine of the vehicle was damage due to entering of water when it was passing through water logged area in Uttrakhand during floods. On 01.07.2013 the car was tested and was diagnosed with cylinder misfire and engine missing but the complainant had taken the delivery of vehicle against advice of OP No.1 on 01.07.2013. On 02.07.2013 the complainant intimated regarding smoke from exhaust and noise from engine but the complainant drove the car during floods against the advice of the advisor.  A specific type of automotive engine damage occurs when water enters in the engine and compressed one of more cylinders and this damage sequence often called as hydrostatic lock. The present complaint involves complicated questions and it requires thorough expert and voluminous evidence. It is denied that OP No.1 had represented that every type of risk, mishap and defect etc. would be covered under the extended warranty. Vide invoice dated 01.07.2013 an amount was Rs.2970/- was rightly charged by OP No.1 but the vehicle was taken by one Abhishet due to shortage of time when it was not OK. It is further submitted that after DTC Test Certification it was diagnosed that once cyclinder misfire and there was problem of missing in the engine.  It is denied that that Op No.1 dictated the terms, particular and mode of mishap. Temporary estimate was prepared on 05.07.2013 with expected date of delivery on 20.07.2013. As per proforma invoice net amount was assessed at Rs.2,59,665/- including the damages caused to the engine and its parts, which included general assembly of the engine with gasket kit and the OP No.1 as a repairer had rightly asked for advance payment of Rs.50,000/- for ordering the parts of the engine which was paid by the complainant. The OP No.1 had ever asked for changing of parts of the engine free of costs and to refund the cost thereof.  The claim of the complainant was not tenable as the damages to the engine were caused due to hydrostatic lock (external factor). The amount of Rs.2,59,665/- was bifurcated in three parts i.e. accidental repair, engine overhaul and engine parts. The amount of accidental repair has been paid by OP No.3 to OP No.1 as the insurance policy was cashless.  The OP No.1 has rightly charged Rs.50,000/-, Rs.160,895/- and Rs.10,000/- and there was no delay in releasing of vehicle.

3.                          OP No.2 in its reply has submitted that there is no defect in vehicle, therefore, no liability of deficient in service can be fastened on it.  The damage sustained in the vehicle was purely due to negligence on the part of the complainant as there were several problem, in the engine due to hydro lock as it was being driven in deep water logged area. The vehicle carried a warranty for  a period of 24 months or 1,00,000 kms whichever was earlier from the date of sale. However,  as per sub clause (d) of Limitation Clause 5 (i) of the New Vehicle Warranty which in unequivocal terms stipulates that this warranty does not apply to any damage that results from operation of a product at any place where no products of this kind are operated ordinarily.  The insurance company has not repudiated any part of its claims on the ground that the damage was due to some defect in the car and the same as covered under warranty provided by OP No.2 hence not covered under insurance policy.  There was no manufacturing defect in the car therefore; the warranty obligation of OP No.2 is only to the extent of repair or replacement of the part which proves defective within the limit of warranty at no charges to the customer for parts and labour.  There is legal relationship between OP No.2 and Op No.1 on principal to principal basis, therefore, in the present case the OP No.1 has its own role to play and neither party assumes any liability for the acts/omissions of the other party.  The complainant has not suffered any monetary loss and the claim for the injury suffered is excessive and exaggerated.  In the present case there is no question of any negligence from the opposite party and no loss or injury is suffered by the complainant. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is to be performed by a person or in pursuance of a contract or otherwise in relation any service. The burden of providing the deficiency in service is upon the person who alleges it.  The Op No.1 during inspection had found traces of water in the air filter as well as the throttle body and the ingress of the water has resulted in damage to the engine. OP No.2 has also taken more or less the same grounds as taken by OP No.1.

4.                          OP No.3 has submitted that the present complaint is false and is not maintainable. The present complaint is liable to be dismissed under Section 26 of the Consumer Protection Act, 1986 and the OP No.3 cannot be held liable for the claim made therein as it falls outside the scope of insurance company. On receiving intimation regarding claim of the vehicle a surveyor was appointed who assessed the damage to the vehicle caused by collusion with the another vehicle and regarding the damages of engine it has been specifically stated that there was no external impact either to the vehicle or the engine of the car from outside and engine cannot be impacted merely coming in to the contact with water and damage, if any , can be attributed to either mechanically failure or trying to run the engine when it was still in contact with the water.  There is clear cut case of extension of loss as it is admitted case of the complainant that the vehicle was no in perfect/OK condition due to defect detected in the engine before the damage of the vehicle.  The damage of the engine is out of scope of the policy as there is violation of condition No.4 of the insurance policy.  It is further submitted that insurance policy is a contract between the insurer and the insured and the clause 2 of the General Exceptions of the Policy provides that the company shall not be liable in respect of any claim arising out of any contractual liability.  All the Ops have controverted the other pleas of the complainant and prayer for dismissal of the complaint has been made. In evidence the Ops have tendered affidavits and documents Annexure R1/A, Annexure R1/1, Annexure R1/2, Annexure R2/A, Annexure R2/1 to Annexure R/3, Annexure R3/A, Annexure R3/1 to Annexure R3/3.

5.                We have heard learned counsel for the parties and gone through the material available on the case file carefully.

6.                Learned counsel for the complainant has argued that the vehicle of the complainant got out of order during warranty period as on 02.07.2013 when it was raining the car got stopped suddenly on the road and therefore another vehicle hit the same from back side.  It has been further submitted that surveyor had inspected the vehicle after dismantling the engine to know the loss details. Since the vehicle stopped working during the warranty period, therefore, the Ops are liable to put the same on working condition or to replace the same without charging anything but the complainant was forced to pay repairing cost as well as the cost of replaced part and parking charges.  On the other hand learned counsel for the appearing Ops have argued that there was no manufacturing defect in the vehicle as there was no external damage to it. Moreover, the engine of the vehicle was damaged due to entering of water in it as the car was passing through water logged area in Uttrakhand during floods. It has been further argued that during DTC test it was diagnosed that one cylinder misfire and there was problem of missing in the engine. The claim of the complainant is not tenable as the damages to the engine was caused due to hydrostatic lock (external factor). The total cost of the repairing/replacement/parking of the vehicle was Rs.2,59,665/- and the same was bifurcated in three parts i.e. accidental repair, engine overhaul and engine parts. The amount of accidental repair had been paid by OP No.3 being insurer and rest of the amount has rightly been charged by the OP No.1.  Further, from the surveyor’s report it is clear that the damage was not  due to external means and therefore, the insurance company also cannot be held liable for the same because this damage was not covered under the insurance policy. However, the accidental repair charges have been paid to the OP No.1 as the insurance policy was cashless. 

7.                          In the present case no expert opinion has been produced on the case file to prove that there was manufacturing defect in the car which caused damag to it’s engine during functioning.  Therefore only because of the car was switched off during driving in the rain is not enough to prove that there was any manufacturing defect in the car. No doubt the claim was made during period of warranty but when there was no manufacturing defect in the vehicle, therefore, manufacturer cannot be held responsible for payment of any such compensation towards damage caused to the engine of the car. So far as the liability of insurer is concerned, it is seen that it’s liability arises only when damage is caused to the car due to external impact and from the material placed on the case file it is ample clear that the accidental repairing charges has been paid by the OP No.3 to the OP No.1.  Moreover, report of the independent surveyor placed on record is very clear to the effect that  There is no external impact either to the vehicle or the engine from outside, Engine cannot be impacted merely coming it to contact with water or damage if any, can be attributed to either mechanical failure or trying to run the engine when it is still in contact with the water, When vehicle stops on the water logged road and any efforts to start the vehicle is well known source to cause damages to the engine, The obvious course is known to be not to try to start the engine, without total cleaning the water from inside engine and inspect by an expert technician thus extension of damages to the engine if any cannot be considered as per condition No.4 of the policy.  The surveyor had also mentioned that the liability of the insurer is restricted upto flushing of engine and the cleaning of vehicle.  The report of the Surveyor/Loss assessor, is an important and significant document, reliance, whereupon is required to be placed.  In Suryachem Industries Vs. Oriental Insurance Co. Ltd, I (2007) CPJ 278 (NC), it was held, that the report of the surveyor, could only be successfully challenged, by producing tangible evidence by the complainant but in the present complaint the complainant has failed to lead any credible evidence on the basis of which Surveyor’s report could be dis-believed. Moreover on this point reliance can also be drawn from case law decided by Maharashtra State Consumer Disputes Redressal Commission, Mumbai on 08.02.2013 in FA No.7/2012 case titled as Mrs.Insiyyah Vs. M/s Hindustand Motors Limited. 

8.                          Keeping in view the discussion made above and the verdict made in case laws titled as Suryachem Industries Vs. Oriental Insurance Co. Ltd, and Maharashtra State Consumer Disputes Redressal Commission, Mumbai (supra)  we have no hitch to reach at a conclusion that the complaint of the complainant deserves dismissal. Accordingly, we dismiss the same. The parties are left to bear their own costs. A copy of this order be sent to the parties free of cost and file be consigned to record room after due compliance.

 

 

Announced

27.01.2016  S.P.ATTRI           ANITA KAPOOR             DHARAM PAL

                     MEMBER                 MEMBER                   PRESIDENT

 

 

Note: Each and every page of this order has been duly signed by me.  

 

                                            

 

                                                          DHARAM PAL                                                                                         PRESIDENT