Haryana

StateCommission

A/533/2018

M/S STERLING AUTOMOBILES PVT. - Complainant(s)

Versus

RAJESH SAINI AND OTHERS - Opp.Party(s)

VIPUL DHARMANI

24 Jun 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution: 11.04.2018

                Date of final hearing: 31.05.2024

                                                Date of pronouncement:24.06.2024

 

First Appeal No.533 of 2018

 

IN THE MATTER OF

 

M/s Sterling Automobiles Pvt. Ltd., 14/1, Main road, Mathura Road, Faridabad-1210030.

.….Appellant.

Through counsel Mr. Vipul Dharmani, Advocate

Versus

 

1.      Rajesh Saini S/o Late Shri Roshan Lal Saini, R/o B-401, Part on Laurel, Sector-120, Noida, U.P.

…..Respondent No.1.

Through counsel Mr. Rajesh Bansal, Advocate

 

2.      The Managing Director, Honda Siel Cars India Limited, 2^nd Floor, Kamal Theatre, Safdarjung Enclave, New Delhi-110029.

 

.….Respondent No.2.

Proceeded against ex-parte.

 

3.      The Managing Director, Honda Cars India Ltd., 409, DLF Commercial Complex, Jasola, New Delhi-110025.

.….Respondent No.3.

Through counsel Mr. Tarun Gupta, Advocate.

 

CORAM:   S.C. Kaushik, Member.

 

Present:-    Mr. Vipul Dharmani, counsel for the appellant.

                   Mr. Rajesh Bansal, counsel for respondent No.1. (proceeded against ex-parte vide order dated 16^th October, 2018)

                   Respondent No.2 proceeded against ex-parte vide order dated 16^th October, 2018.

                   Mr. Tarun Gupta, counsel for respondent No.3.

 

O R D E R

S.C. KAUSHIK, MEMBER:

 

 

                    Present appeal has been preferred against the order dated 19.02.2018, passed by learned District Consumer Disputes Redressal Forum, Faridabad (now ‘District Commission’), vide which complaint filed by the complainant was allowed and opposite party No.3 (“OP No.3”) were directed as under:-

“In view of the above, the complaint is allowed. The respondent No.3 is directed to refund the amount of Rs. 90,000/- with interest @ 9% per annum from the date of filing of complaint till is realization along with Rs.2200/- as compensation and Rs.2200/ as litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of order.”

 

2.               The brief facts giving rise to the complaint before learned District Commission are that the complainant purchased a Honda Amaze car bearing registration No.HR51 AW-8398 on 04.09.2013 from OP No.3. Till the month of July, 2014, said car had covered only 10000 kms. It was alleged that on 17^th July, 2014 the car was started by complainant and it gave problems in the engine and also stopped many times on his way to home. Upon it on the next day the car was towed to the workshop of OP No.3 at Faridabad and authorized representative of OP No.3 assured the complainant that the defect of the vehicle will be removed after consultation with the engineers of OPs No.1 & 2. Further, it was assured that the car will be inspected in the presence of the complainant. It was further alleged that on 21^st July, 2014 the complainant was informed by OP No.3 that after opening the engine as well as further discussion with OPs No.1 & 2, it was found that it was a case of hydrostatic lock and the repair of the car could not be done under the warranty. The repair will be done on paid basis and OP No.3 gave an estimate of about Rs.1,00,000/- for the repairs of the vehicle in question. It was further alleged that it was not a case of hydrostatic lock due to entering of water into the engine.

3.                It was alleged that the sudden break down of the car occurred on 17^th July, 2014 and no water was standing on the road. The defect in the car occurred on the smooth road and all other cars and light vehicles were moving smoothly in the area which is not a waterlogged area. There was not a single drop of water in the engine oil or inside the engine itself. The defect in the car occurred due to inherent manufacturing defect and not due to negligent driving of the complainant in a waterlogged area. Moreover, the complainant has more than 12 years of experience and is holding a valid driving license. It was further alleged that the complainant was not called when the engine of the vehicle was opened by the experts of OP No.3. When the car was towed and inspected by the experts of OP No.3 in the presence of the complainant, there was no trace of water near the engine of the car at that time and there was no mention of water in the job card. The OPs did not send the contents i.e. engine oil etc. to any experts to find out any water in the engine oil or near the parts of the engine. The breakdown of the aforesaid vehicle had been caused due to inherent manufacturing defect for which the company is solely responsible as the said defect had been caused during the period of guarantee/ warranty. It was further alleged that the complainant had to spend about Rs.90,000/- on the repair of the said vehicle. Thus, there was deficiency in service on the part of OPs.

4.                Upon notice, Ops appeared before learned District Commission and OPs No.1 & 2 have filed their joint written version and OP No.3 filed its separate written version. OPs No.1 & 2 in their written version submitted that no deficient service was rendered by OP No.1 because as such there was no defect in the vehicle and no liability can be fastened upon them towards repair or replacement of the subject parts of the vehicle under warranty. The car in question experienced severe problem in its engine due to hydraulic pressure as it was driven in deep waterlogged area. This act was due to negligence on the part of the complainant and such acts are not covered under the warranty. It was further submitted that as per sub clause (d) of limitation clause 5.1 of the New Vehicle Warranty states in unequivocal terms 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. Moreover, the owner's manual specifically cautions the owner under the head 'driving in bad weather' which says 'do not drive on the road where water is deep' as driving through The Deep water will cause damage to the Engine and vehicle would break down. It was further submitted that the defect in the car are attributed to the negligent and reckless driving of the vehicle by the complainant through waterlogged areas which resulted into alleged damage to the engine and hence the alleged fault in the engine cannot be termed as manufacturing defect. Apart from this, no such complaint of manufacturing defect was ever reported by the complainant while driving the vehicle for almost 10000 km. The complainant has failed to establish any manufacturing defect. Finally it was submitted that there was no deficiency in service on the part of OPs No.1 & 2 and prayed for dismissal of the complaint.

5.                OP No.3 in its written version submitted that the complainant has concealed the fact of heavy rainfall and consequent water logging on 17^th July, 2014. The complainant has also concealed that he drove the car in waterlogged area despite knowledge that the same can cause damage to the vehicle. It was further submitted that OP No.3 has performed its duties and provided its services to the complainant to the best of its ability. However, the complainant first time lodged his grievance on 17^th July, 2014 that the car had suddenly stopped. Thereafter, vide email dated 21^st July, 2014 after initial inspection of the car the complainant was informed about that water in the air filter was found which indicates hydrostatic lock which cannot be repaired under the warranty. It was further submitted that the problem occurred on account of negligence of the complainant ignoring the prescribed instruction in the owner's manual book and the car was driven in deep (water and flooded Road). Finally, it was submitted that there was no deficiency in service on the part of OP No.3 and prayed for dismissal of the complaint.

6.                After hearing the parties, learned District Commission allowed the complaint and issued directions as mentioned in para 1^st (Supra).

7.                Feeling aggrieved therefrom, appellant-OP No.3 has preferred this appeal.

8.                Arguments have been advanced by Shri Vipul Dharmani, learned counsel for the appellant, Shri Rajesh Bansal, counsel for respondent No.1 and Shri Tarun Gupta, learned counsel for respondent No.3. With their kind assistance the entire record including documentary evidence as well as whatever evidence had been led during the proceedings of the complaint had also been properly perused and examined. It is pertinent to mention here that respondent No.2 and respondent No.1 as well were proceeded against ex-parte by this Commission vide order dated 16^th October, 2018 as they failed to appear before this Commission despite service. Thereafter, learned counsel for respondent No.1 had joined the proceedings at the time of arguments.

9.                It is an admitted fact that on 04.09.2013, respondent No.1-complainant purchased a car Honda Amaze, bearing registration No.HR51-AW-8398 from present appellant-OP No.3. It is also an admitted fact that till the month of July, 2014, said car had covered only 10000 kms and on 17^th July, 2014 the car started giving some problems in the engine due to which it stopped many times. It is also an admitted fact that thereafter on the next day the car was towed to the workshop of present appellant-OP No.3 at Faridabad for repairs and at that time warranty period was in force. It is also an admitted fact that present appellant-OP No.3 repaired the defects but charged a sum of Rs.90,000/- from respondent No.1- complainant for the said repairs.

10.              The only issue involved in the present appeal to be adjudicated before this Commission is as to whether the respondent No.1-complainant is entitled to get refund of Rs.90,000/- which he had paid to the appellant-OP No.3 for repairs of his vehicle or not because as per the present appellant-OP No.3 after opening the engine as well as further discussion with OPs No.1 & 2, it was found that it was a case of hydrostatic lock which occurred due to entering of water into the engine and the repair of the car could not be done under the warranty, so an amount of Rs.90,000/- was charged from the respondent No.1-complainant. On the other hand, as per respondent No.1-complainant, breakdown of the aforesaid vehicle had been caused due to inherent manufacturing defect for which the company is solely responsible as the said defect had been caused during the period of guarantee/ warranty.

11.              After hearing the contentions of learned counsel for the parties as well as perusal of record, this Commission is of the considered view that the only contention of the appellant-OP No.3 is that the defect in vehicle in question was due to entrance of water in engine of the vehicle, so it is the duty of present appellant-OP No.3 to prove the same, but the appellant-OP No.3 has not placed on the file any job card and the report of the Mechanic or engineer, who has performed the work on the engine of the vehicle and opened it to prove that there was hydraulic lock in the engine. So, the plea taken by appellant-OP No.3 that the defect in the vehicle is not covered under warranty is not tenable and no benefit can be given to the appellant-OP No.3 on this ground. Appellant-OP No.3 wrongly and illegally charged an amount of Rs.90,000/- from respondent No.1-complainant on account of repairs of his vehicle for which respondent No.1-complainant is entitled to get the refund of that amount along with interest.

12.              In view of the above observations and discussion, deficiency in service on the part of present appellant-OP No.3 stands proved. Thus, there is no illegality or infirmity in the finding given by the learned District Commission on merit.  The impugned order passed by learned District Commission is well reasoned, based on facts and as per law, and therefore, there is no need to interfere with it. In view of this, present appeal is without merit and thus, stands dismissed.

13.              Statutory amount of Rs.25,000/- deposited at the time of filing of present appeal be refunded to the appellant against proper receipt, identification and as per rules after expiry the period for filing of appeal/revision, if any.

14.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

15.              Application(s), pending, if any, stands disposed off in terms of the aforesaid order.

16.              File be consigned to record room alongwith a copy of this order.

 

Pronounced on 24^th June, 2024                                               S.C Kaushik

                                                                                                            Member                                                                                                                                 Addl. Bench-III

 

R.K