BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complt.  Case No:1497 of 2009

Date of Institution:   17.12.2009

Date of Decision  :   16.09.2010

M/s. Winsome Yarns Limited, SCO 191-192, Sector 34-A, Chandigarh, through Sh.N.K.Maheshwari, President

……Complainant

V E R S U S

1]          Prestige Honda, Lally Motors Limited, Plot No.6, Industrial Area, Phase-I, Chandigarh.

2]          Honda Siel Cars India Limited, Plot No.A-1, Sector 40/41, Surajpur Kasna Road, Greater Noida, Industrial Development Area, Distt. Gautam Budh Nagar (UP).

.…..Opposite Parties

CORAM:          SH.LAKSHMAN SHARMA                         PRESIDENT

                    SH.ASHOK RAJ BHANDARI            MEMBER

                    MRS.MADHU MUTNEJA                        MEMBER

PRESENT:     Sh.Vikas Sagar, Adv. for the complainant.

Sh.Aftab Singh, Adv. for OP No.1.

Sh.Sukhdeep Parmar, Adv. for OP-2.

PER MADHU MUTNEJA, MEMBER

                This complaint has been filed M/s Winsome Yarns Limited through its President Sh.N.K.Maheshwari against the OPs under Section 12 of the Consumer Protection Act. 

1]             The case of the complainant is that the complainant purchased a car vide Invoice No.1385, dated 29.11.2006 from the OPs.  The car had a warranty of two years or 80,000 kms., whichever comes earlier.  In June, 2008 when the car had covered 72059 kms., it started giving problem of hard steering and hard gear shifting.  When the complainant approached the Ops for the said problem, the part was replaced by the OPs free of cost.  However, subsequently in Oct., 2008, the problem increased and it was found that the part needed replacement again.  At that time, the complainant submitted to the OPs vide letter dated 10.11.2008 that the part in question was of such a nature that it could not be burnt after running of only 10,000 kms. but the OPs did not agree with him and charged Rs.37,578/- for  replacing the said part.  The complainant then filed a Consumer Complaint No.1537 of 2008 tilted as M/s. Winsome Yarns Ltd. Vs. Lally Motors Ltd. before the District Consumer Forum-I, Chandigarh.  The complaint was disposed of by District Forum-I in the Lok Adalat, dated 27.2009. A compromise was made between the parties and OPs had returned Rs.37,579/- to the complainant.

                The car again started facing similar mechanical problems and the set gear box COMP needed to be replaced again.  The complainant requested the OPs to replace the part free of cost again as the defect seemed due to an inherent defect in the car, due to which the complainant was continuously facing mental and physical harassment.  However, the complainant had to pay Rs.45,872/- to the OPs.  The complainant then served a  legal notice to the OPs to show his protest for the payment of Rs.45,872/- charged from him.  When no reply was received, the complainant filed the instant complaint against the OPs seeking refund of  Rs.45,872/-, which he feels has been wrongly charged from him, as well as compensation for negligence and deficiency in service.  

2]             After admission of the complaint, notice was sent to OPs. 

                OP No.1 filed reply and submitted that the earlier set gear box COMP was replaced in Oct., 2008.  From a perusal of the Job Card it is established that the complainant never made any complaint regarding the set gear box COMP to the OPs during all subsequent services after Oct., 2008.  When the complainant thus asked for replacement on 12.11.2009, the warranty of the set gear box COMP had already expired, so he was charged for the cost of the replaced part. The warranty of the vehicle was definitely not available in 2009.

                Moreover, as per warranty conditions, it is clearly stipulated that warranty repairs can be performed by a Honda Authorised Dealer only.  Any Honda Authorised Dealer could repair or replace any part if found defective within the period of extended warranty at no extra charges from the customer.  Therefore, the complainant can have no specific cause of action against OP No.1, who is just another Honda Authorised Dealer.  The car had already run 72059 kms when the part was replaced free of cost in Oct., 2008. After the free replacement, the complainant never complained about any defect regarding the component or any problem faced by him during usage of his vehicle.  In view of all this, OP No.1 has requested for dismissal of the complaint. 

                OP No.2 in its reply has submitted that the allegations made in the complaint are vague and frivolous.  The complainant in order to get free repairs of the car has filed the present complaint.  The vehicle does not suffer from any manufacturing defect.  This would be apparent as the vehicle has traveled more than 1,40,850 kms. within a period of 3 years.  Had the vehicle suffered from any manufacturing defect, this problem would have surfaced much earlier.  The complainant has failed to disclose any defect or deficiency or unfair trade practice under Section 2(1)(f), (g) & (r) of the C.P.Act to bring the present complaint within the purview of the Consumer Protection Act.

                On merits, OP No.2 has submitted that the vehicle is being extensively used by the complainant for commercial purpose.  When the vehicle was under warranty, the part was replaced free of cost.  Even earlier the part had actually worn out only due to improper driving of the vehicle.  At the time of subsequent replacement, the vehicle was out of warranty and the manufacturer was not under any obligation to replace the part free of cost after the warranty had expired.  The Hon’ble Supreme Court of India as well as Hon’ble National Commission in a catena of judgments has held that after the period of warranty expires, the manufacturer cannot be burdened with the liability to replace the part free of cost as the same would amount to re-writing the contract between the parties.

                The falsity of the facts is evident from the job card wherein it is clearly stated that the subject part was replaced after more than one year and after covering of distance of more than 61,000 kms.  The  set gear box COMP falls in the category of consumable parts and any problems arising out of the same are due to improper and faulty habits of driving the vehicle, and cannot be labeled as manufacturing defect or by submitting that the part is not genuine.  The complainant has been charged Rs.45,872/- for the replaced part. 

                In view of the above, OP No.2 has prayed for dismissal of the complaint.

3]             We have heard the ld.Counsel for the parties and have also perused the evidence and documents placed on record by the parties. 

4]             The complainant has placed reliance on various judgments to prove that when a vehicle is purchased for personal purpose, the complainant is a consumer.  The Hon’ble National Commission, New Delhi in Controls & Switchgear Company Ltd. Vs. Daimlerchrysler India Pvt. Ltd. & Anr., IV(2007) CPJ 1 (NC) 1 has held : Motor vehicle – Purchased for personal use of Directors of Company – Not to be used for any activity directly connected with commercial purpose of earning profit – Commercial purpose not involved – Complainant consumer. 

5]             The complainant submits that he is a consumer of the OPs and they were liable to pay back the money taken by them from him when the defective part of the car was replaced.  The complainant is of the view that the part is being changed again and again as there is a manufacturing defect in the vehicle and therefore, he should not be burdened with the cost of replacement each time.  To prove his point, the complainant has placed reliance on the earlier order of the District Forum dated 27.2.2009 by which the OPs were made to refund the amount paid by the complainant for the replacement of the same part.

6]             The Ops in their reply have contended that the part was replaced free of cost earlier because it was under warranty. However, the warranty cannot be continuous and has since expired. Any replacement of any defective parts at a later date would be on payment only.  Just because the complainant was able to get the amount of the replaced part earlier because it was under warranty, he cannot now claim that he must not be asked to pay again.  Also the plea of the complainant that there is some inherent defect in the vehicle due to which the problem is regular seemed to be farfetched. 

7]             The car had run 72,059 kms. when the set gear box COMP was replaced for the first time.  It has now done 1,40,850 kms.  The set gear box COMP is a consumable item and would definitely need replacement due to wear & tear and usage.  The complainant cannot get the benefit of permanent warranty by alleging any inherent defect in the vehicle. 

8]             The details of the Job Card submitted by the OPs also show that from the time of first replacement till the time of second replacement, the car has been taken to OP No.1 for various other repairs but no defect in the set gear box COMP was mentioned.  The replacement is only due to natural wear and tear.

9]             In view of the above, we are of the opinion that this time the complainant cannot take the plea of warranty or inherent defect for getting refund of the amount of replaced part paid by him to OP No.1. the part was replaced after warranty period.  Therefore, he was to make the payment for the said part.  The payment so asked for and made by complainant towards the replacement of the part in question was thus right.  OPs are not liable for any deficiency in service this time.  The complaint is therefore dismissed with no order as to costs.

                Certified copies of the order be supplied to the parties free of any charge. The file be consigned to the record room after compliance.    

Announced

16^th Sept., 2010                                                            Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                                                                   Sd/-

                                       (ASHOK RAJ BHANDARI)

MEMBER

                                                                                                Sd/-

                                                    (MADHU MUTNEJA)

MEMBER

“om”