Delhi

East Delhi

CC/65/2012

MEENAKSHI SUBERMANYAM - Complainant(s)

Versus

OCTAGON BUILDER - Opp.Party(s)

04 Aug 2017

ORDER

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 100/15

 

Ms. Sakshi

W/o Shri Ashish Ashdhir

4, Ground Floor, RPS Block

DDA Flat, Mansarover Park

Shahdara, Delhi – 110 032                                                         ….Complainant

Vs.

1. The Managing Director

 M/s. Honda Siel India Limited

 Plot No. A-1, Sector-40,41

 Surajpur, Dasna Road, Greater Noida

 Distt. Gautam Budh Nagar – 201306

 UP

 

2. The Managing Director

 Capital Cars Pvt., Ltd.

 At Prime Honda

 Ansal Plaza, Main Link Road

 Opp. Dabur Factor, Vaishali

 Ghaziabad-201012, UP

 

3. HDFC Ergo General Insurance Co. Ltd.

 Ground Floor, Eros Tower

 Opp. Nehru Place Metro Station

 Nehru Place, New Delhi – 110 019                                          ….Opponents

 

Date of Institution: 16.03.2015

Judgment Reserved for : 25.07.2017

Judgment Passed on : 02.08.2017

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari  (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By : Ms. Harpreet Kaur Charya (Member)

JUDGEMENT

Jurisdiction of this Forum has been invoked by Ms. Sakshi against     M/s. Honda Siel India Ltd, the manufacturer (OP-1), the Managing Director, Capital Cars Pvt. Ltd., the authorized dealer centre (OP-2) and HDFC Ergo General Insurance Co. Ltd., the insurance company (OP-3), alleging deficiency in services. 

2.         Briefly stated the facts of the complaint are that on 29.01.2014, the complainant purchased Honda Amaze Car from OP-2, bearing registration    no. UP14CD 2958.  It is stated that within 7 months of purchase and being barely driven for 10,600 km., there was problem with the said vehicle.  During the first and second service on 19.03.2014 and 12.06.2014 respectively, the complainant complained of excessive engine noise.  Complainant has stated that on 11.09.2014, it was drizzling, when the complainant alongwith her husband was travelling to her office, the car broke down.  The complainant was advised by customer helpline to get vehicle towed to nearest authorized service centre, i.e. OP-2.   

            On inspection, the complainant was informed that the car had developed “Hydro Static Lock” malfunction, which had occurred due to the reason being that vehicle/car had been driven in rainy condition.  The air filter was found to be wet with water particles in the resonator.  On 12.09.2014, an estimate of Rs. 2,50,000/- was given by OP-2 to make the vehicle road worthy.  The complainant has further stated that the car was under warranty, which was 36 months or 80,000 km. from the date of purchase.  The complainant had taken an extended warranty for the same.  The complainant was informed by OP-1 and OP-2 that no such conditions were stipulated in the warranty terms and conditions.  It was also stated that the said vehicle was insured with OP-3 on 28.01.2014, who refused to indemnify the claim of the complainant stating that the vehicle had manufacturing defect, thus, they were not liable to indemnify. 

            The complainant has stated that Metrological Department had recorded 1.1 mm of rainfall till 12.20 p.m., which proves that OP-1 and OP-2 had taken the excuse to evade their liability.  Despite letters dated 08.10.2014, 19.10.2014 and 25.10.2014, written to OP-1 and OP-2, with request to either replace car or refund the cost of the car, OP-1 through email dated 16.10.2014, replied in negative.  OP-2 in their reply dated 25.10.2014 also stated that as it was the case of “Hydrostatic Lock”, same was not covered under warranty.  Thus, the complainant was forced to take away the vehicle and same was lying at her residence since 16.10.2014. 

            The complainant has stated that there was no breach of warranty conditions and no negligence on part of the complainant, but still OPs failed to resolve the problem of the complainant despite legal notice dated 28.10.2014.  The complainant has prayed for directions to OPs to replace car or refund     Rs. 7,25,000/- being the cost of the car, Rs. 72,000/- as compensation for daily expenses incurred by the complainant due to breakdown of car, Rs. 1,10,000/- on account of mental agony and Rs. 55,000/- as cost of litigation.

            The complainant has annexed copy of the purchase invoice (Annex. P1), copy of registration certificate and service history of the car (Annex. P2 & P3), copy of the invoice dated 12.09.2014 (Annex. P4), copy of the warranty card (Annex. P5), copy of the insurance cover note (Annex. P6), copy of letter dated 2.09.2014, 08.10.2014, 19.10.2014, 16.10.2014 and 25.10.2014 (Annex. P7 colly.), copy of legal notice alongwith dispatch proof (Annex. P8 colly.) and copy of the manual of the company (Annex. P9).

3.         OP-1 filed their reply and took several pleas such as there was no privity of contract between OP-1 and the complainant; fault had occurred in the vehicle due to complainant’s own negligence.  Thus, no liability could be attributed to them.  Complaint involved several disputed questions of facts and law, which could not be adjudicated in summary proceedings.  It was denied that there was manufacturing defect in the said car.  Rest of the contents of the complaint were also denied.

            OP-2 in the reply stated that, as the complainant had alleged that the said car had manufacturing defect, thus, the complaint was not maintainable against them as they being the dealer had only sold the car.  Thus, no deficiency in service could be attributed on their part.  It was stated that the said vehicle was brought for first and second service on 19.03.2014 and 12.06.2014 respectively and no defect was ever pointed out by the complainant.  They have stated that as per invoice dated 12.09.2014, it was apparent that air filter was found wet with water and water particles were found from resonator and it was observed as hydrostatic lock in engine and any defect that occurred in the car was due to the negligence and callous attitude of the complainant.  Rest of the contents of the complaint were denied, seeking dismissal of the complaint with exemplary costs.

            OP-2 has annexed invoice dated 12.06.2014 and 19.03.2014 as Annexure-1, literature related to Hydrostatic Lock is annexed as Annexure-2. 

            OP-3 also contested the complaint, where in their written statement, they stated that as per complaint, the said car had manufacturing defect for which complainant was seeking repair from OP-1 and OP-2.  Secondly, it was stated that no claim had been lodged with OP-3 with respect to damaged vehicle in question.  Territorial jurisdiction was also disputed.  Hence, they prayed for dismissal of the complainant.

4.         In rejoinder to the reply filed by OP-1, it was stated that as the defect had occurred during the warranty period and vehicle was insured by OP-1 (which seems to be a typographical error as per amended memo OP-3 is the insurer), averments made in the complaint were reiterated and contents of reply were denied. 

            In rejoinder to WS filed by OP-2, the complainant has stated that the said car had defects and the chasis and engine were faulty.  As the said car was under warranty period, thus, OP-1 and OP-2 were jointly and severally liable.  Rest of the contents of the WS were denied and those of the complaint were reiterated.

            Complainant in her rejoinder to reply filed on behalf of OP-3, reiterated the contents of the complainant, stating that the claim had been lodged regarding the said car by sending letter through fax dated 06.12.2014, which was never replied by OP-3.

5.         Evidence by way of affidavit was filed by the complainant, OP-2 & OP-3. 

            Complainant examined herself and stated that the said car developed mechanical/manufacturing defects within 7 months from the date of purchase and just completed 10,600 km. on the date of break down. She has also got exhibited documents such as copy of the purchase invoice dated 29.01.2014 (Ex.CW 1/1), copy  of registration certificate dated 31.01.2014 (Ex.CW1/2), copy of service history record dated 19.03.2014 and 12.06.2014 (Ex.CW1/3), copy of vehicle info invoice dated 12.09.2014 (Ex.CW1/4), copy of warranty card certificate dated 29.01.2014 (Ex.CW1/5), copy of certificate of insurance cover dated 28.01.2014 to 27.01.2015 (Ex.CW1/6), copy of letter dated 06.12.2014 (Ex.CW1/7), copy of ndtv news report of 11.09.2014 recording the rainfall on 11.09.2014 (Ex.CW1/8), copy of letters dated 08.10.2014, 19.10.2014 and 25.10.2014 (Ex.CW1/9 colly.), copy of parking charges receipt (Ex.CW1/10), copy of legal notice and its postal receipts (Ex.CW1/11 colly.) and copy of warranty book of the car (Ex.CW1/12). 

            No evidence was filed by OP-1.

            OP-2 examined (1) Shri Kamal Manchanda, Company Secretary & Manager-Legal and (2) Shri Jitender Kumar, wholetime Director with OP-2.  It was stated that OP-2 were merely dealers and not manufacturers, thus the present complaint was not maintainable against them as there was no negligence or deficiency in service on their part.  They got exhibited invoices dated 19.03.2014 and 12.06.2014 as Ex.RW1/1 and Ex.RW1/2.  Brief note of Hydrostatic Lock was exhibited as Ex.RW1/3.  It was stated that Hydrostatic Lock had occurred due to negligence and callous attitude of the complainant while driving the car on water logged road.

            Shri Pankaj Kumar, Manager - Legal Claims of OP-3 in his affidavit deposed the contents of their reply on oath.  It was stated that as per policy terms and conditions, on occurrence of any event covered under the policy, claim was to be lodged immediately, which was not done by the complainant.  As no claim had been lodged, there was no question of repudiation of the claim.  He relied on copy of power of attorney (Ex. D3W1/1) and copy of insurance policy alongwith terms and conditions (Ex. D3W1/2).

6.         We have heard the Ld. Counsel for the parties.  First deciding on the preliminary objections as to the territorial jurisdiction.  OPs, in their reply have raised objection stating that the forum has no territorial jurisdiction.  The fact that the complaint has been at the final stage, it will result in injustice to the complainant if the arguments of Ld. Counsel for the OPs is accepted at this stage.  This argument of Ld. Counsel for the OPs cannot come in the way of imparting substantial justice, as the competence of the forum is not in question.  When the competence of this forum is not in question, the technical ground of territorial jurisdiction cannot be accepted.  Therefore, the argument of Ld. Counsel for OP that this forum has no territorial jurisdiction cannot be accepted and the same stands rejected.

            Now coming to the merits of the complaint, complainant has stated that the problem of Hydrostatic Lock was due to manufacturing defect and OP-1 and OP-2 were jointly and severally liable for deficiency in service.  Complainant has got exhibited invoice dated 12.09.2014 issued by OP-2 as Ex.CW1/4, where it has been stated in recommendations that the vehicle was towed through crane and during inspection, air filter found wet with water, water particles found from resonator engine need to be dismantle for actual estimate and this was not covered under warranty norms.  Complainant has placed on record following judgements:

1. Alok Gupta Vs. BMW India Pvt. Ltd., Date of order:14.03.13. 

The facts of the present complaint are different, the vehicle in question had run for only 1500 km. is period of 6 months, whereas in the instant case, the vehicle has covered 10,600 km. in 7 months.

 

2. Harmit Singh Sethi Vs. BMW India Pvt. Ltd., Date of order: 15.05.14.
3. Shri Mukul Aggarwal vs. Bajaj Allianz General Insurance, Date of order: 22.12.2014. 

       Facts of these cases are different as there was delay in delivery after repairs by OP.

4. Manjit Singh Khaira Vs. HDFC Ergo General Insurance Ltd. & Ors.  Claim had been filed by the complainant with insurance company, but no claim has been filed by the complainant in the present complaint.

 

            The vehicle in question has already been driven upto 10,600 km. within 7 months and on previous occasion no issue was reported by the complainant.  Had there been any manufacturing defect, the issue would have cropped up earlier.  It is settled principle of law that report of expert is essential or some other evidence showing manufacturing defect should be adduced.  The complainant has neither placed any expert opinion nor any evidence in support of her allegations.  Thus, OP-1 cannot be held liable for deficiency in service as there is no manufacturing defect.  As far as OP-2 is concerned, they being the dealer are bound to provide services as per terms and conditions, which they did.  Hence, they are also not deficient in providing services.

            Now the question is whether OP-3, the insurance company is liable for payment of cost of repairs or not?  Complainant has placed on record Ex.CW1/7, letter written to OP-3 inquiring about whether hydrostatic lock was covered under policy or not?  When the complainant has inquired from OP-3, it cannot be said to have been filing of claim, when the claim has not been filed, insurance company cannot be held responsible for deficiency in services or unfair trade practice.  During the course of arguments, the Ld. Counsel for complainant stated that the service of the summons of the present complaint can be deemed to be lodging of claim.  Thus, this implies that no cause of action had arisen in favour of the complainant and against OP-3 on the date of institution of complaint.  So, OP-3 is also not liable for deficiency in service.

            Hence, the present complaint is dismissed being devoid of merits without order to cost.                

           Copy of the order be supplied to the parties as per rules.

File be consigned to Record Room.

 

(DR. P.N. TIWARI)                                              (HARPREET KAUR CHARYA)

Member                                                                                Member    

 

(SUKHDEV SINGH)

                                                          President