| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No.03/2021 Mr. Shaleen Narang SBI Officers Flat Flat No.23 G Block, East of Kailash New Delhi-110063. .…Complainant VERSUS Prime Honda Capital Cars Pvt. Ltd. & Anr. Plot No.1 Patparganj Industrial Complex Patparganj (Opp. Mother Diary Plant) New Delhi-110092. Honda Cars India Ltd. Plot No.A,1, Surajpur Kasna Rd., IDA Jeedimetla Sector 40/41, Knowledge Park III Greater Noida, Uttar Pradesh-201306. ….Opposite Parties Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Present: Adv. Akshita Raina for complainant. Present: Adv. Dhanush proxy counsel for Adv. Manish Mishra for OP-1. Adv. Himanshu Gulia for OP-2. ORDER Date of Institution:24.02.2021 Date of Order :29.10.2024 President: Ms. Monika A Srivastava Complainant has filed the present complainant seeking Rs.5,89,654/-; refund of Rs.55,000/- undertaken for repair; refund of Rs.8,758/- for service; compensation of Rs.3,85,000/- with 18% interest per annum for loss of business, reputation and opportunity; compensation of Rs.1,00,000/- for mental agony and litigation charges of Rs.45,000/-. OP-1 is Prime Honda and OP-2 is Honda Cars (India). - It is stated by the complainant that he is owner of the vehicle Honda Amaze which is the source of livelihood for him and he has deployed a commercial driver to run it. It is stated by the complainant that on 29.11.2019, complainant handed over the vehicle to OP-1 for repair and service, after experiencing a technical issue with the engine related to misfiring and leakage from the head gasket. It is stated that after several communications and repeated visits, the vehicle was delivered back to the complainant on 11.12.2019 but the issue of misfiring subsisted and on 13.12.2019 it was handed back to OP-1 for proper diagnosis and re-servicing.
- It is further stated that between a period of three months from 13.12.2019 to 26.02.2020 vehicle was handed over to OP-1 on more than 15 occasions as the issue of misfiring subsisted throughout and a total of Rs.55,000/- was paid for replacing the radiator, fan motor from Honda. In this regard, annexure C-1 & C-2 are placed on record.
- It is stated by the complainant that OP-1 withheld vital information about the issues pertaining to the vehicle time and again and tried to shift the burden of their negligence on to the complainant by making multiple incorrect diagnosis over an elongated period of time with regard to the CNG kit and the fuel injector of the vehicle. OP-1 had recommended replacing the catalytic converter as it was working below threshold level.
- On 04.01.2020 when the vehicle was returned from servicing OP-1 negligently left the fuel tank plastic coupler loose causing massive leakage in the petrol tank of the vehicle which rendered the vehicle stranded in the midst of DND flyover from where he had to physically drag the car for more than half a kilometre. It is alleged that this petrol leakage could have resulted in the loss of life and limb of the driver or any passenger present in the vehicle.
- It is further stated that OP-1 tried to obtain false acknowledgement of customer satisfaction from the driver on behalf of the complainant to shed off responsibility of deficiency in service and gross negligence. It is stated that one of the service staff of OP-1 unlawfully entered the vehicle to take back the possession of “Customer Satisfaction Note” as they realised that they could not influence or coerce employee of the complainant.
- It is stated that OP-1 constantly tried to shift the blame on to the complainant for running the vehicle with CNG on without any logical basis whereas the complainant had clearly stated that misfiring had occurred when the vehicle was running on petrol mode. Complainant was repeatedly asked to dismantle the CNG system of the vehicle even though the report dated 10.12.2019 had indicated the issue with catalyst converter which was later diagnosed as the real issue on 26.02.2020.
- Vide email dated 12.03.2020 complainant communicated his intention to hand over the vehicle to OP-1 on 13.03.2020 between 06.00 to 07.00 PM however, OP refused to take possession of the vehicle and evaded the calls of the complainant. It is further stated that the vehicle of the complainant was attached with a reputed company in NOIDA which is logistics partner of Paytm for its foreign clientele and senior management and because of deficient service of OP-1 complainant has suffered loss of business relationship. It is further stated that this wilful and deliberate actions amount to deficiency in service and has caused misery and agony, fear of loss of business, income and reputation.
- It is further stated by the complainant that he took his vehicle for diagnosis and service to another service station wherein it was pointed out that on account of negligence of deficiency in service of the OPs, the engine of the vehicle has incurred permanent damage, leading to excess of moisture in the spark plugs, an issue which subsists until repaired extensively. It is further stated that OPs have inflicted intentional damage to the cap of the radiator which has caused the engine to overheat and ultimately rendered the car unusable. Photograph of the damaged radiator cap is annexure C-6.
- It is stated that the negligent actions of the OPs failing to complete the proper servicing of the vehicle, trying to obtain false note of consumer satisfaction and leaving the fuel tank plastic coupler have evidently caused loss and injury to the complainant and thus amount to deficiency. Further, deliberately withholding information regarding the misfiring of the engine highlighted in the scan report dated 10.12.2020 until 26.02.2020 amount to deficiency as per section 2 (11)(ii) of CPA 2019. It is stated that complainant had suffered significance loss of business as the vehicle is in commercial use and is not in use for seven months excluding the period of Covid-19 Govt. mandated lockdown.
- In their reply, OP-2 has raised preliminary objections that the complaint has been filed to harass and defame OP-2. It is stated that complainant has completely failed to raise any allegation against OP-2 and the complaint does not disclose any manufacturing defect in Section 2 (6) (iii) of the Act against OP-2. Further, it is stated that the relationship between the OP-1 and OP-2 is purely on ‘principal to principal’ basis and each party is responsible for its own action. It is stated that OP-2 had no direct dealing with the complainant and it is OP-1 which sold the vehicle and for providing after sales service to the customers. It is stated that there is no privity of contract between OP-2 and the complainant.
- It is further stated that courts are only to interpret the contract and it is not open to them to re-write the contract. It is stated that in the absence of a contract providing replacement warranty, the complainant is not entitled to either refund of the cost or its replacement. Since there is no warranty for replacement, complainant is at best entitled to damages provided he has actually suffered any loss. It is further stated that the complainant has not filed any cogent, credible and adequate evidence supported by the opinion of an expert that the vehicle suffers inherent manufacturing defect before being entitled to any damages.
- It is further stated that the complainant has miserably failed to establish to any count of defect filing within the purview of inherent manufacturing defect. In this regard, OP-2 has placed reliance on the judgment passed by the Hon’ble Supreme Court in Maruti Udyog Ltd. Vs. Sushil Kumar Gabgotra AIR 2006 SC 586 and Hon’ble NCDRC IN Dr. Hema Vasanti Lal Dakoria Vs. Bajaj Auto II (2005) CRT 102 (NC) and Commercial Officer, Manager Patna Vs. Bihar State Warehousing Corporation, Premium Automobile Ltd. Vs. S.B. Ghosh (1994) 1 CPR 460 (NC), Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines (1999) SC 22, Indian Airlines Vs. Shri Rajesh Kumar Upadhay (1991) 1 CPJ 206.
- It is further stated that complaint involves several disputed questions of fact and law which would require the parties to provide detailed oral and documentary evidence and therefore it cannot be tried in a summary manner. It is denied by OP-2 that it is liable for any deficiency of service, mental agony to the complainant or any unfair trade practice.
- In their reply, OP-1 has stated that the trade name of OP-1 is Prime Honda while the name of the company is Capital Cars Pvt. Ltd. It is stated that complainant is not a consumer as the vehicle in question is being used for commercial purposes and not for earning his livelihood which is evident from the admission of the complainant.
- It is further that the vehicle has run for six years and has completed1,37,925 kms. by 26.02.2020. The vehicle has not been taken to any authorised service station of OP-2 for periodic maintenance whereas as per the owner’s manual vehicle, it is required to be serviced after every 10,000 kms or six months whichever is earlier.
- It is stated that complainant had purchased the vehicle with a petrol version and it was purchased from some other Honda dealer. The same was converted into a CNG model after getting the CNG fitted from outside. It is stated that the vehicle is a petrol engine vehicle with certain specifications which does not support a CNG kit being a petrol variant. OP-1 has placed on record, the service record of the vehicle of the complainant which shows that since 31.12.2019 there are about 4 complaints of engine misfiring till 28.02.2020. The Job Card and invoices are annexed as annexure -1 (colly).
- It is denied that on 29.11.2019 the technical issue of misfiring in the engine was reported. Vehicle was duly delivered to the complainant. It is further denied that on 11.12.2019 issue of misfiring still subsisted. It is denied by OP-1 that within a period of three months from 13.12.2019 to 26.02.2020, the vehicle was handed over to the OP on more than 15 occasions. Expenditure incurred by the complainant is not denied by OP-1. It is denied by OP-1 that it withheld vital information about the issues pertaining to the vehicle or OP-1 has tried to shift the burden on their negligence to the complainant by making multiple incorrect diagnosis with regard to the CNG kit and fuel injector. It is also denied by OP-1 that they recommended replacing the catalytic converter as it was below the threshold level.
- It is stated that the issue of catalytic system was reported to the complainant by OP-1 on 29.09.2019. It is further denied by OP-1 that they negligently left the fuel tank plastic coupler of the vehicle loose causing massive leakage in the petroleum tank of the vehicle. It is further denied by OP-1 that they tried to obtain false acknowledgment of customer satisfaction from the driver of the complaint to shed off their responsibility. Email dated 04.03.2020 categorically states that the CNG fitted is not OE and repeated concerns in the engine performance due to dry running of catalytic converter failure due to low fuel levels in tank and no burnt fuel rich catalytic converter are due to it. It is stated that the catalytic converter needed replacement. It is stated by OP-1 that there is no deficiency on their part nor there has been any negligent act on the part of OP-1 or that it has failed to complete proper servicing of the vehicle.
- In his rejoinder to the reply of OP-2, it is stated by the complainant that the dealership agreement OP-2 comes into force only after 01.11.2020 and the complainant has not availed the disputed services from any of the OPs after 26.02.2020 i.e. well before the effective date of dealership agreement.
- In his rejoinder to the reply of OP-1, it is stated by the complainant that complainant was not employed during 2019 to 2021 and the earning generated by the vehicle was only source of livelihood and the complainant had hired driver to assist him in driving the vehicle.
- It is further stated that despite the vehicle being run as a cab, it was regularly taken for periodic repairs and maintenance and the complainant spent over Rs.80,000/- from 2019 to 2020 on the repair and maintenance of the vehicle. It is further stated that though the vehicle was of petrol but it was compatible with the installation of CNG kit. It is further stated that the authorised dealer also provided the option for installation of CNG kit at the time of purchase of the vehicle. Complainant has placed reliance on the judgment in CCI Co-op Housing Society Vs. Development Credit Bank 2003 CPJ 849 wherein it was stated that the questions of fact that have arisen in the present complaint can be adjudicated by way of leading evidence by the parties. Complainant has also placed reliance on the judgment of Hon’ble Supreme Court passed in Laxmi Engineering Works Vs. PSG Industrial Institute (1995) 3 SCC 583, M/s Nandan Biomatrix Vs. Ambika Devi (2020) 13 SCC 130, Madan Kumar Vs. District Magistrate Saket (2009) 9 SCC 79.
- All the parties have filed their respective evidence affidavits as well as written arguments. OP-1 has relied on the catena of judgment Mohd. Hassan Khalid Haider Vs. General Motors India Pvt. Ltd. and Ors. RP No.525/2015, NCDRC, R. Bhasker Vs.D.N. Udani and Ors. IV (2206) CPJ 257 NC, Sarina Gupta Vs. Mercedes Benz India Pvt. Ltd. CC No.147/2012, SCDRC Lucknow, Jay Malhotra Vs. Maruti Udyog Ltd. date of decision 17.04.2002 NCDRC, Gulab Vs. Force Motors Ltd. RP No.70/2010, NCDRC, Baljeet Kaur Vs. Divine Motors and Ors. III (2017) CPJ 599 (NC), Maruti Udyog Ltd. Vs. Atul Bhardwaj and Ors. RP 2366/2004 NCDRC, Bharathi Knitting Co. Vs. DHL Worldwide Express Courier Division of Airfreight Ltd. (1996) 4 SCC 704, Hon’ble National Commission in Hero Honda Motors Ltd. Vs. K.B. Murleedharan II (1994) CPJ 27 (NC) : (1996) 4 CTJ 199 (CP) NCDRC, Maruti Udyog Ltd. Vs. Arjun Singh. III (2009) CPJ 22 (NC), Mercedes-Benz India Ltd. Vs. Intercard (India) Ltd., decided on 09.05.2013, NCDRC FA/100/2009 CPJ 22 (NC), Tata Motors Ltd Vs. Antonio Paulo Vaz C.A 574/2021, Honda Cars India Ltd Vs. Sudesh Berry C.A No.6802/2021, Fiat India Pvt. Ltd. Vs. Syed Hasan Bukhari (R.P No.1235 of 2014), Maurti Udyog Ltd. Vs. Susheel Kumar Gabgotra (2006) 4 SCC 644, H. Vasanthakumar Vs. M/s Ford India Ltd. FA No.490/2004, Sushila Automobiles Pvt. Ltd. Vs. Dr. Birendra Narain Prasad (2010) 3 CPJ 130 (NC), Sukhvinder Singh Vs. Classic Automobiles on 06.11.2012 NCDRC, RP 3973/2012, Suresh Chand Jain Vs. Service Engineer and Sales Supervisor, MRF Ltd. NCDRC 2011 (2) CPC 282, Scooter India Ltd Vs. Manjulaben Kiritbhai RP No.771/2006 and Appeal No.1278/2005 decided on 21.04.2010, Classic Automobiles HUDA. Vs. Shakuntla Devi on 08.12.2016, C.A No.7335/2008, SC, Consumer Unity & Trust Society, Jaipur Vs. CMD, Bank of Baroda Calcutta, SC C.A No.7166/1993.
- It is seen that Complainant has also placed on record the evidence of his driver, Sh. Pradeep Kumar but the Complainant has not placed on record any expert opinion to prove manufacturing defect. Complainant has placed on record the customer invoices of the servicing of the car. It is seen from the invoice dated 08.08.2019 that there was a problem with the spark plug. It is also noted that CNG was fitted from outside. It is for the first time on 29.09.2019 that the problem of misfiring was reported and catalytic efficiency was found below threshold.
- It is also seen that for the first time in February 2020, when the said vehicle has run 1,37,925 Kms. complainant has raised the complaint of ‘engine misfiring’. As the vehicle has travelled for more than one lakh kms. and was also run as a cab, no case of manufacturing defect is made out against OP-2.
- It is also seen from the trail mail that the OP suggested the complainant to have the CNG removed for diagnosis which was got fitted by the complainant from outside. It is further stated by the complainant that misfiring problem was related to the catalyst converter. The vehicle was purchased on 31.12.2016 was out of warranty.
In Email dated 04.03.2020 OP has stated “On 20.01.2020, the car visited workshop car was running on petrol and no concern of misfiring and starting problem in the morning hours were reported by your representative, as per him car was running fine. As per your request, the NCG was re-connected and car delivered to you. On 29.01.2020, car visited our workshop again, with the misfiring concern, we have cleaned the AF Sensor and CKP Sensor, and the car was delivered to you, after conducting the road test with your driver. However, on 10.02.2020, again the car visited our workshop for engine misfiring during our diagnosis, it was observed that the engine second 2nd cylinder was misfiring – we have checked the Valve timing, Valve Clearance, and Ignition Timing, and were found within the specification and no abnormality observed in the engine performance, with Petrol (CNG disconnected) and it was requested to get the CNG disconnected and run the car on petrol only to verify the re-occurrence of the concern. On 26.02.2020, the car reported our workshop and MIL glowing on Cluster Meter concern, during the inspection DTC observed in the car for Fuel System Too Rich and Catalytic Converter system efficiency below threshold. We have re-checked the engine condition and all engine parameter found normal. Checked the car in the morning hours and CNG disconnected, no engine misfiring observed, we advised to run the vehicle on petrol but again you refused so CNG connection were redone and car was delivered to and recommend to replace Catalytic Converter as mal-function light occurred 2nd time. In the light of the above said circumstances this Commission is of the opinion that due to the CNG, catalytic converter could have been a problem which could not be diagnosed as the complainant did not have the CNG fitment removed. As the complainant’s CNG fitment was fitted from outside as also the fact that the said vehicle was not within warranty therefore, no fault/deficiency can be attributed to OP1. Complainant has not been able to prove his case against either of the OPs and so the complaint fails and is dismissed. Copy of the order be given to the parties as per rules. File be consigned to the record room. order be uploaded on the website. | |
