DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.877/2009
Sh. Gaurang Kanth
A-9, Nizamuddin East,
New Delhi-110013
Also at:
G-60, Lower Ground Floor,
Nizamuddin West,
New Delhi-110013 ….Complainant
Versus
1. South End Honda
(Sales Outlet)
S-13, Green Park Extn. MKT.,
Near Uphar Cinema,
New Delhi-110016
Also at:
M/s Saket Motors Pvt. Ltd.
Plot No.71, Block No.B-2,
Mohan Co-operative Industrial Estate
Badarpur, Mathura Road,
New Delhi-110044
2. M/s Honda Siel Cars India Ltd.
Plot No.A-1, Sector-40/41
Surajpur-Kasna Road,
Greater Noida Industrial Development Area
Distt. Gautam Budh Nagar,
UP-201306
3. M/s Honda Motor Co. Ltd.
2-1-1 Minami Aoyama
Minato-KU Tokyo 107-8556
Japan ….Opposite Parties
Date of Institution : 23.12.09 Date of Order : 12.04.18
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Case of the complainant, in nutshell, is that the complainant purchased a Honda Civic Car bearing model No. Civic 1.8S MT bearing registration No. DL 2F HK 9000 manufactured by OP No.2 & 3 from OP No.1, the dealer of OP No.1 & 2 for a price of approximately Rs.11,65,054/- for his own personal use on 17.01.07 and hence he is a consumer. OPs claimed that they had the best technology and the Honda cars engine are made of advanced technology and the warranty period given was 24 months or 40,000 kms. whichever is earlier from the date of sale. The Complainant was assured that the car would be free of defects in material and workmanship under normal use and maintenance and he got the services done as detailed in the complaint. It is inter-alia stated that on 14.08.08 when the Delhi was experiencing heavy rain fall in the afternoon the car in question was sent to IGI Airport to drop the complainant’s brother’s family for catching an evening flight to Kolkata and that at the ‘round about’ of Dwarka just a half km. from the Airport there was some water on the road on account of rain; that all the cars on the road were plying and moving slowly including the car in question; that while returning back from the Airport suddenly the car in question started giving all sorts of disturbing sounds and it was running in hiccups; that somehow the complainant’s driver managed to take the car in question at home; that, however, it could not be taken to the workshop on the same day because of continuous rain fall and on the following days owing to the national holidays being Independence Day on 15.08.09 and 16th and 17th August 2009 (sic) being weekend; that the car in question was taken to the workshop of OP No.1 on 18.08.08 for examination by the complainant’s driver and the clerk; that on the prima- facie examination of the car in question the OP No.1 abruptly commented that the engine of the car in question had been seized and water gone inside the engine and that the driver should have taken the precaution while coming out in rains and the complainant and his driver had to be blamed; that the complainant’s driver and the clerk were told that sum of about or more than Rs.1.5 lacs would be charged for servicing and repairing of the car in question. It is stated that on the same day when the car in question was taken to the workshop of OP No.1, another customer of Honda Civic car had also come with the same problem faced by the complainant with his Honda Civic car and the OP No.1 gave similar comments to the said customer; that more than one Honda Civic car having same problems and complications indicates that there is major manufacturing defect in the Honda Civic cars and unfit for Indian climatic conditions; that at the time of purchasing the said car in question the OP No.1 had represented and assured the complainant of its quality, viability and durability and represented that the Honda Civic cars were manufactured by OP No.2 & 3 to equip and suit the Indian roads and climatic conditions; that hence the allegations made at the workshop of OP No.1 on 18.08.08 were so much in contrary to what had been declared by OP No.2 in its warranty booklet that the Honda authorized dealer (OP No.1) will be more than happy to help and their staff are trained to carry out maintenance and dedicated to give the highest possible service. The case of the complainant is that the OP No.1 bluntly refused to repair the car in question which had broken down due to the manufacturing defect without payment of Rs.1.5 lacs by the complainant to the OP No.1; that when the complainant did not get any response he issued a legal notice on 10.09.08 calling upon the OPs to correct/repair the car in question free of cost. The OP No.1 increased the demand to Rs.1,74,607.06p on 17.11.08. However, on 10.12.08 OP No.1 contacted the complainant and confirmed that the car in question was ready and told him to take the same after paying Rs.1,32,830/- and the complainant somehow made arrangement to get the said amount for taking the delivery of the car in question. When on 11.12.08 the complainant went to take delivery of the car from the workshop of OP No.1 the attitude of the employee of OP No.1 was very hostile and aggressive and made the complainant to wait for more than one hour without giving any attention; that after having waited for more than one hour the OP No. 1 told the complainant to take the car in question without undertaking any testing; that when the complainant requested for a test drive OP No.1 refused to do so and was firmly told to take the car and make the payment of Rs.1,32,830/-; that the complainant requested for the defective parts which were removed from the complainant’s car but the OP No.1 flatly refused at the first instance on the pretext that the parts are lying somewhere but when the complainant made strong protest of the refusal to hand over the defective parts of the car, then OP No.1 gave only 5 parts. It is stated that under protest the complainant took the delivery of the car in question after making the payment of Rs.1,32,830/- vide demand draft bearing No.001957 dated 11.12.08 drawn on HDFC Bank Ltd. Jangpura, New Delhi in favour of Sakat Motors Ltd. being OP No.1 No.1. According to the complainant, it has been discovered that the Honda Civic car is not tuned for Indian conditions and the Honda Civic cars users are facing problems with the suspension of the car due to its being too soft. Hence, pleading unfair trade practice and breach of an implied warranty as to the quality or fitness for the particular purpose for which the good was sold and as the car in question did not conform to the quality or fitness for the purpose for which it was purchased the complainant has filed the present complaint for issuing following directions to the OPs:
“a) To direct the Opposite Party No.1 to 3 to refund Rs.11,65,054/- (Rupees Eleven Lacs Sixty Five Thousand and Fifty Four only) being the cost of the said Honda civic, and;
b) To direct the Opposite Party No.1 to 3 to refund Rs.1,32,830/- (Rupees One Lac Thirty Two Thousand Eight Hundred and Thirty only) being the cost of repairs paid for the said Honda Civic by complainant, and;
c) To direct the Opposite Party No.1 to 3 to pay Rs.4,00,000/- (Rupees Four Lacs only) as compensation for mental agony and harassment caused to the complainant; and;
d) To direct the Opposite Party No.1 to 3 to make the said payment as claimed pendentelite and future interest @ 12% per annum from August 14, 2008 till the date of payment, and/or;
e) To direct the Opposite Party No.1 to 3 to pay costs towards this complaint to the Complainant.”
In its reply OP No.1 has inter-alia pleaded that the OP No.1 is only providing servicing, repairs and sales for the manufacturer of the car and the alleged claims of the complainant can only be against the manufacturer and not against the service provider. It is, however, submitted that the vehicle in question does not suffer from any manufacturing defect. It is stated that in any case the vehicle in question was out of the warranty even on the relevant date. It is further stated that the complainant has failed to disclose any ‘defect’ or ‘deficiency in service’ or ‘unfair trade practice’ as defined under the Consumer Protection Act. It is, however, stated that most of the cars including the car in question cannot be expected to be driven in water logged areas where the height of the water is dangerously high to get sucked into the engine through the filtering system; that the car when driven recklessly and negligently in such situation, can lead to water getting sucked in and the engine getting seized. It is inter-alia stated that the complainant threatened the employees of OP No.1 with dire consequences and took the vehicle after making the payment for the repairs of the damaged vehicle. It is stated that in the automobile industry a lifetime warranty is not to be accepted in principle and norm in the industry. Other averments made in the complaint have been denied. It is prayed that the complaint be dismissed.
In the reply OP No.1 & 2 have inter-alia pleaded that the complaint involves several disputed questions of fact and law which would require both the parties to give detailed oral and documentary evidence and, therefore, the complaint cannot be adjudicated in summary proceedings and only ordinary civil courts have the jurisdiction to decide the complaint. It is stated that the complainant has failed to disclose any defect or deficiency in service or unfair trade practice as defined in the Consumer Protection Act. It is further stated that it is crystal clear that the alleged manufacturing defect does not exist and the present complaint is completely based on the conjectures and surmises; that there was no defect in the vehicle till that unfortunate day and during the routine services the complainant had no complaint whatsoever with regard to vehicle in question. It is stated that having the knowledge that the deep water logging needs to be avoided is sufficient to prove that the complainant was sheer negligent while driving the vehicle on that unfortunate day on which day Delhi was experiencing heavy rain fall in the afternoon. It is stated that the vehicle in question suffered with the hydro lock due to sheer negligence of the driver while driving the vehicle on that unfortunate day and the complainant has portrayed his position to cover the mistake committed by his driver.
It is stated that Hydro lock which usually occurs when water fills a cylinder on the intake and due to the incompressibility of the water, compression stoke is rendered impossible due to the sheer negligence which in turn prevents the entire engine from turning on and can cause significant engine damage if one attempts to forcibly turn on or start the engine and in the present case it happens due to carelessness in driving through a water logged area i.e. where the water is above the level of the air intake or where the speed of the vehicle is too high; that user manual handed over to the complainant at the time of purchase of the car clearly states so under the heading of ‘driving in bad weather.’ It is stated that the admission of the fact by the complainant that it was raining and the car was driven through a water logged area, the manufacturer warranty does not cover consequential damages as damage sustained in the engine of the vehicle was due to the careless and negligent act and omission on the part of the driver. It is stated that the OP No.1 was indeed right when the OP No.1 gave the estimate of repair cost since hydro lock does not come under the purview of the warranty; that the vehicles manufactured by different manufacturers are approved by ARAI in India and, therefore, it is wrong to state the subject vehicle suffers from defect of any kind whatsoever. It is stated that as on 14.08.08 the vehicle had actually crossed the warranty stipulation of 40000 kms. and after the warranty there is no obligation on the part of the OP No.2 & 3 to repair the vehicle free of cost. It is stated that there was no need for the complainant to take the delivery of the car in question under protest after making the payment of Rs.132830/- since the vehicle was repaired to the satisfaction of the complainant. It is stated that manufacturer is having a knowledge and understanding of Indian roads before manufacturing the car and the OP No.2 being located and manufacturing cars in india is having thorough knowledge of the condition of Indian roads; that as a leading automaker in the world the OP No.2 & 3 are providing world class product to suit load conditions and climate of each region. It is denied that there is any implied warranty apart from express warranty as to the quality of the car in question sold to the complainant. It is denied that OPs are liable to pay or refund any such amount to the Complainant. Other averments made in the complaint have been denied. It is prayed for dismissal of the complaint.
Complainant has filed rejoinders.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Rakesh Kr. General Manager (Administration) has been filed in evidence on behalf of the OP No.1 and affidavits of Sh. Amit Sinha, Manager on behalf of the OP No.2 and Sh. M. K. Bipin, Manager (legal) have been filed in evidence on behalf of the OP No.2 & 3.
It is not out of place to mention here that the application filed on behalf of the complainant for filing additional evidence was allowed and the affidavit of one Sh. Mohd. Kaleem Khan has been allowed to be taken on record as an expert evidence.
Written arguments have been filed on behalf of the parties.
We have heard the oral arguments advanced on behalf of the complainant and OP No.2. We have also carefully gone through the file as well as the following judgments relied on behalf of the complainant:
- M/s. Reliance General Insurance Co. Ltd. Vs. Dr. Anish Sebastian Prathibham & Ors.- 2015 SCC OnLine NDRC 2233.
- Tata Motors Vs. Rajesh Tyagi and HIM Motors Show Room-II – I (2014) CPJ 132 (NC).
- Ram Bhagat Vs. M/s New Holland Fiat (India) Pvt. Ltd. & Anr. – MANU/CF/0653/2013.
- Tata Motors Vs. Rajesh Tyagi and HIM Motors Show Room-II – MANU/CF/0738/2013.
- Eternit Everest Limited Vs. C.G. Abraham & Anr. – MANU/KE/0240/2003.
It is admitted case of the parties that the complainant had purchased the car in question (Honda Civic Car) manufactured by OP-2 and OP-3 from OP-1 dealer on 17.01.2007 and that the complainant had been getting it serviced from time to time as detailed in the complaint; that on 14.08.2008 when Delhi was experiencing heavy rainfall in the afternoon, the driver of the car in question had taken the same to IGI Airport, New Delhi and during travelling the car was stuck in water logging and the water sucked into the engine as a result of which the engine of the car seized. In this regard the case of the complainant, however, is that all the cars including the car in question were plying slowly on the water logged road and it suddenly started giving all sorts of disturbing sounds and it was running in hiccups but despite that the complainant’s driver managed to take the car in question at his home and when it was taken to the workshop of OP-1 on 18.08.2008, it was found that the engine of the car had been seized and water had gone inside the engine because of the negligence of the driver. However, the case of the OPs in this regard is that the driver of the car in question did not take precautions and was sheer negligent while driving the vehicle on the road when Delhi was experiencing heavy rainfall in the afternoon as a result of which the vehicle in question suffered with the Hydro lock due to sheer negligence of the driver.
Thus, the dispute between the parties with regard to the working of the car arose on 14.08.2008 or thereafter and till then from the date of purchase of the car i.e. 17.01.2007 till 14.08.08 the vehicle in question did not have any sort of problem so as to give any cause of grievance to the complainant. Now, according to the complainant this had happened only because there was manufacturing defect in the car and the same was not fit for Indian roads. On the other hand, the OPs’ case is that there was no manufacturing defect in the car and the vehicle had run more than 40,000/- KM as on 14.08.2008. It was out of warranty and even otherwise the car in question had suffered with Hydro lock problem which in the facts and circumstances of the case cannot be said to be a manufacturing defect.
What is consequential damage has been discussed in Dr. Anish Sebastian’s case (supra). It is held that in contract law, consequential damages are commonly referred as special damages or expectation damages, are type of damages that arise as a result of breach by one part and that while direct damages focus on the costs associated directly with the contract itself, consequential damage focus on the costs outside of the contract. In that case as per the version of the complainant the car had not started as the same had stuck in water logging. It was observed that any normal person stuck in water and with the water entering the car, would make an attempt to restart the car and drive out the water and this cannot be termed as “negligence of the driver” resulting in “consequential damages.” We must say at once that in the present case as per the complainant himself while his driver was going to IGI Airport to drop his brother’s family there was water on the road on account of rain and that like other cars the driver of the car in question also moved slowly but while returning from the Airport the car in question suddenly started giving all sorts of disturbing sounds and it was running in hiccups; that somehow his driver had managed to take the car to the home. Thus, in the present case, the driver of the car had not made any attempt to restart the car. Inspite of the fact that the car had started giving all sorts of disturbing sounds and it was running in hiccups, the driver did not stop the car and parked it alongside the road but managed to drive the car to the home (of the complainant). Therefore, in our considered opinion, the facts of the present case are not similar to the facts of the said case.
It has been held in Tata Motors’ case (supra) that onus to prove manufacturing defect in the vehicle was on the complainant and the same should be proved by expert evidence and in absence of which no liability can be attributed to the manufacturer and to compensate the Complainant. There is no dispute about the proposition of law laid down in the authority. The Complainant has filed the so-called expert evidence on the record which we shall discuss in the latter portion of this order. Except this legal position on the subject, the judgment is of no further help to the complainant.
In Ram Bhagat’s case (supra) the complaint was with regard to excess consumption of diesel in the tractor and further defects. In this case also the emphasis has been laid on filing expert evidence on record by the complainant. Except this, this case also does not help the complainant in any other manner.
In Rajesh Tyagi’s case (supra) the question involved was with regard to leading expert evidence by the complainant and the duty of manufacturer and dealer to attend to defect and make it defect free vehicle and if they are not in position to do so, either to refund cost of vehicle or provide new vehicle to the consumer. It deals with inherent manufacturing defect and expert opinion. Apart from that, this judgment also does not help the complainant in any other respect so far as special facts of the present case are concerned.
In Eternit Everest Limited’s case (supra) the judgment has been delivered under the Sale of Goods Act, 1930 and the facts of that case are otherwise totally different from the facts of the present case. That case related to defect in the manufacture of asbestos sheets and award of damages. Therefore, this judgment is also of no help to the complainant.
Now we straightaway come to the affidavit of Sh. Mohd. Kaleem Khan as CW-2. He has deposed that he is a diploma holder in Automobiles from Rohilkhand Industrial Training Institute (ITI) Bareilly, U.P passed in the year 1992 and he has a workshop in the name and style of Azmat Bareillvi Automobiles which was set up by his grandfather and the same has been operational since 1948. He has further deposed that he is dealing in maintenance and repairs of automobiles including Indian made and Imported four wheeler vehicles since the year 1988 in the said workshop. Now, according to his own version he has obtained diploma in Automobiles in the year 1992 but he has been doing the above job since 1988. Without going into any such controversy we say that in his further deposition he has stated as follows:-
“ 3. I say that , August 16, 2008 Mr. Gaurang Kanth gave me a call to visit his home which is house no.A-9, Nizamuddin East, New Delhi-110013 to check his Honda Civic car. I state that after I reached Mr. Gaurang Kanth’s home he requested me to inspect his Honda Civic car bearing registration No. DL 2F HK 9000 Model Civic 1.8S MT as the said car was not in a running condition. It is stated that Mr. Gaurang Kanth informed me that the said car was sent to the Indira Gandhi International Airport, New Delhi to drop his brother’s family for catching an evening flight to Kolkata on August 14, 2008. I state that he further informed me that at the ‘round about’ of Dwarka just half a kilometer from the Airport, there was some water on the road on account of rain and all the cars on the road were plying and moving slowly including his said car. Thereafter he stated that while returning back from the Airport, suddenly the said Honda Civic car started giving all sorts of disturbing sounds and it was running in hiccups and that somehow his drive could manage to take the said Honda Civic back to home. He further informed me that the said car could not be taken to the workshop on the same day because of continuous rainfall and also the next following day owing to the national holiday after Independence Day on August 15, 2009.
4. I say that after listening to the facts narrated by Mr. Gaurang Kanth when I tried to start the said car it did not start. After complete inspection of the said car I discovered that the spark plug had been completely soaked in water which indicated that the water had reached inside the engine of the said car. After the detailed inspection and checking of the said car I found that the Air Filter which is located in the right side at the front of the engine was also drenched in water and the same was the main cause of the damage.
5. I say that in the said car the design of the engine and the Air Filter is in such a way that in case there is some water on the road, the air suction attached to the engine of the car will suck the water and send the water inside the engine of the said car. I say that this type of the design & manufacturing is not good for the Indian roads. I say that the design of the said car should be made in such a way so as to prevent water to enter the engine in any manner. In fact, the Air Cleaning System of the said Honda Civic is situated at the front lower side and much closer to front tyre of the car which is usually not in other cars of similar make. I say that during the inspection I realized that the car was well maintained as also oil, collant and other things were in good working condition except the said severe manufacturing fault. I state that the defect in the engine of the said Honda Civic, which is the vital part of the car, happened due to manufacturing defect which resulted in total non-functioning of the said Honda Civic. I state that I have repaired almost 6-8 Honda Civic cars where the same problem has occurred due to the faulty design of the Air-Cleaning System in the said car.
6. I say that, unless there is this manufacturing defect in the said car, it is not possible that water could enter the engine of the said Honda Civic car. Mr. Gaurang Kanth instructed me not to do anything as he wanted it to be repaired from the company’s authorized service centre as the same was under warranty period.”
As contended on behalf of the OPs we are not inclined to place any reliance on the said report. Firstly, CW2 has not filed the copy of his diploma on the record to show that he is infact a diploma holder in the Automobiles. He has also not filed any document on the record to show that earlier his grandfather or now he has been running any such workshop since 1948 or since 1988 or any other date. The address given by him in his affidavit is automobile workshop at T-1, Hazrat Nizamuddin, West Market, New Delhi. He has not even mentioned the name of his automobile workshop in the affidavit though according to him they have automobile workshop in the name and style of “Azmat Bareillvi Automobiles.” Secondly, the car in question had developed the said snag in the afternoon of 14.08.08 and the same had been taken to the workshop of OP No.1 on 18.08.08 because 15th August was holiday on account of Independence Day and 16th and 17th August were weekend days. According to the affidavit of CW2 he had inspected the car in question on 16.08.08. Therefore, had CW-2 inspected the said car in question on 16.08.08 the complainant would have certainly mentioned this fact in the complaint or in the rejoinder or at least in his affidavit. However, the complainant did not do so. Therefore, it is crystal clear that the complainant has filed the affidavit of CW-2 as an afterthought in order to create evidence in his favour. When the complainant has tried to create evidence in his favour we do not have any hesitation in saying that the case of the complainant is not free from doubts and suspicions and that the problem in question had infact occurred in the vehicle in question due to the sheer negligence of the driver.
As discussed hereinabove, the driver did not stop the vehicle as soon as it started giving all sorts of troubles or hiccups and he managed to drive the car to the house/home (of the complainant). Therefore, the driver, in our considered opinion, was guilty of negligence for which no liability can be fastened on the OPs. It is not the case of the complainant that the car in question had stopped in the water as the driver had made an attempt to restart the same. The fact that inspite of having developed problems the car in question was driven to the home ( of the complainant which is in Nizamuddin East or Nizamuddin West) it can be presumed that the driver of the car had covered a considerable distance from near the IGI Airport round about upto the home (of the complainant). The car in question did not suffer from any defect much less manufacturing defect. Therefore, in the facts and circumstances of the present case we are not inclined to accept that there was infact manufacturing defect in the car in question as tried to be proved by the complainant by leading the evidence of CW-2 who is not a reliable witness.
In view of the above discussion, we hold that the complainant has failed to prove any deficiency in service or unfair trade practice on the part of the OPs. Accordingly, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 12.04.18.
