Date of filing: 13.02.2019
Date of disposal: 23.12.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.P.MURUGAN. M.Com.,ICWA(Inter), B.L., .....MEMBER-II
CC. No.09/2019
THIS FRIDAY, THE 23rd DAY OF DECEMBER 2022
Mrs.Ambika, W/o.Manikandan,
A Block, 108, A.K.S.Serenity,
Aishwarya Nagar, Ayanambakkam,
Maduravoyal, Chennai 600 095.
Thiruvallur District. .........Complainant.
//Vs//
1.The President & CEO,
Honda Car India Limited,
Plot No.A-I, Sector 40141, Surajpur Kasna Road,
Greater Noida Industrial Development Area,
Greater Noida Gautam Buddha Nager,
Uthar Pradesh – 201 306.
2.The Manager, Capital Honda,
AADIT AUTO Company Private Limited,
D.No.21 &22, Chennai Bye Pass Road,
Vanaganeri, Trichy 620 010.
3.The Managing Director & CEO,
Universala Sompo General Insurance Company Limited,
Red Address : Unit No.401, 4th Floor,
Sangam Complex, 127 Andheri Kuria Road, Andheri (East),
Mumbai, Maharashtra – 400069.
4.The Managing Director,
Bridgestone India Private Limited,
Plot No.A43, Phase –II, MIDC Chakan,
Village Sawardari Taluka Khed. District, Pune,
Maharashtra 410501, India.
5.Honda Car India Limited,
Technical Support Centre,
Old No.26, New No.46 Opp ICICI Bank,
Ambattur Industrial Estate,
Ambattur, Chennai 600 058. ......Opposite parties.
Counsel for the complainant : Party in Person.
Counsel for the 2nd opposite party : M/s.S.V.Udayakumar Advocate.
Counsel for the 3rd opposite party : Mr.R.K.SethuRaaman, Advocate.
Counsel for the 4th opposite party : M/s.K.Anjaneyan, Advocate.
Counsel for the 1st & 5th opposite parties : Exparte.
This complaint is coming before us on various dates and finally on 22.12.2022 in the presence of complainant who apperaed in person and M/s.S.V.Udayakumar Advocate for the 2nd opposite party and Mr.R.K.SethuRaaman, Advocate for the 3rd opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the opposite parties in not replacing a new car for the complainant in the place of the damaged vehicle along with a prayer to direct the 1st opposite party to Replace with a brand new Honda City 15VX CVT VTEC BS4 Car or pay a sum of Rs. 15,00,000/- towards cost of Car by opposite party and directing the 2nd opposite party to refund a sum of Rs.32,000/- collected from complainant along with compensation of Rs. 50,000/- for deficiency in service and directing the 3rd opposite party to pay a sum of Rs.3,00,000/- towards compensation for the mental agony caused to complainant due to the deficiency in service and directing the 4th opposite party to pay cost of the damaged tyre Rs. 10,000/- as well as Rs.50,000/- as compensation for the deficiency in service.
Summary of facts culminating into complaint:-
It was the case of the complainant that he purchased a Brand New Car HONDA CITY, model I.5 VX CVT from the 1st opposite party company from Olympia Honda's showroom located at Ambattur on 16.02.2018 by paying Rs.14,85,906/- including Insurance charges, Registration charges and Honda Care Extended Warranty Policy and the registration number of the car was TN 12 X 0064. It was submitted that on 20.09.2018 in the morning near Klarampatti, Perambalur District, suddenly the front tyre of the car got burst, and as a result of which the car fell in low-lying muddy area and capsized. Hence the complainant lodged a complaint and the same was registered in CSR No 475/2018 on the file of Perambalur Police Station. The complainant immediately on the same day contacted the nearby service centre of the 1st opposite party, namely the Capital Honda Service Center, Trichy the second opposite party herein and the car was taken for service. The 2nd opposite party informed the complainant that the damages would be assessed after the inspection by the 3rd opposite party Insurance Company. After approval from the 3rd opposite party/Insurance Company the 2nd opposite party informed the complainant that the difference with the actual cost and the insurance amount, a sum of Rs.32,000/- would have to be paid by the complainant. Thus the complainant on 10.11.2018 paid a sum of Rs.32,000/- to the 2nd opposite party and taken delivery of the vehicle. The second opposite party had taken more than 50 days for completing the service. It was further submitted that to her shock the 2nd opposite party had not done the service upto the mark and she found various defects. When the said defects were pointed out to them they requested the complainant to take the vehicle to their service center at Meenambakkam Chennai and they assured to rectify all of them. The complainant left the vehicle for service on 29.11.2018 and they have taken nearly 22 days for the said service. The complainant pointed out the defects, the service rendered by the 2nd opposite party at Tirchy and its Service Center at Chennai has not rectified the defects. Thus all of the opposite parties failed to provide their service to the consumer and thereby committed deficiency in service and put the life of the complainant at risk. The complainant submits that the Honda Company Service Centre and the Insurance Company colluded with each other to deny her replacement of a car Instead of providing new car in place of wholly damaged car, the Honda car company deceived the complainant by indulging itself in the repairing and servicing of wholly damaged car and the Insurance Company on its part under estimated the damage caused to the brand new car of the complainant and has paid only Rs.4,48,2751/- as the claim amount towards the car damage. Due to the indifferent attitude of the Honda Service Centre, in spite of having warranty for her car's tyre, the tyre company Bridgestone refused to entertain the claim of the complainant by stating that the Service Centre did not inform them about the bursting of the tyre in time. The tyre company further stated that the Honda Service Centre disposed the said tyres even prior to rising of claim with it and thus refused to honor the warranty for the said reason. Further Bridgestone, the tyre company on its part also without analyzing the situation of the complainant and without realizing the fact that the complainant's car was damaged only due to substandard tyre quality, simply went on to reject the claim thereby causing inconvenience to the complainant. The Service Centre (Aadit Auto Company Pvt Ltd, Trichy) collected Rs.32,000/-from her by stating that some spare parts need to be replaced. However, there was no proper invoice provided for the same, in spite of the fact the car is fully insured by the complainant by paying premium of Rs.42,793/-to Universal Sompo General Insurance Co. Ltd on 14.02.2018. The complainant submits that the complainant has made several complaints with opposite parties through several phone calls and emails. However, other than usual acknowledgment of emails and promises, there was no constructive action taken by any of them. The complainant submits that the act of the opposite parties amounts to deficiency in service and unfair trade practice. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the 1st opposite party to Replace with a brand new Honda City 15VX CVT VTEC BS4 Car or pay a sum of Rs. 15,00,000/- towards cost of Car by opposite party and directing the 2nd opposite party to refund a sum of Rs.32,000/- collected from complainant and along with compensation of Rs. 50,000/- for deficiency in service and directing the 3rd opposite party to pay a sum of Rs.3,00,000/- towards compensation for the mental agony caused to complainant due to the deficiency in service and directing the 4th opposite party to pay cost of the damaged tyre Rs. 10,000/- as well as Rs.50,000/- as compensation for the deficiency in service.
Crux of the defence put forth by the 2nd opposite party:-
The 2nd opposite party admited that the vehicle was entrusted on 20.09.2018 on complaint of the vehicle capsized due to bursting of front tyre. It was immediately taken into service on the same day and moreover it is true that the representative of 2nd opposite party had informed that the cost of repair would be informed only after Inspection of the 3rd opposite party and at no point of time informed to the complainant that the vehicle would be replaced with a new one. As the complainant again reiterated certain rectifications to be done the said vehicle was sent to the 2 opposite party's Chennai office to carry out certain intricate repairs and hence the vehicle was taken to the Chennai work shop and the period of 22 days was due to the limited availability of certain spare parts. The 2nd opposite party had deputed their staffs immediately to attend upon the said vehicle which had been taken to the work shop for repairs and there was no defective or substandard products in the manufacturing of the vehicle. As the vehicle had sustained external impact and met with an accident it had lost its charm. Certain spare parts would not cover under the bumper to bumper insurance hence the complainant had to remit the cash to secure those spare parts which are detailed hereunder:-
Paint polish treatment - Rs.1003/-
Interior Enrichment - Rs.1829/
Tyre Depreciation - Rs 14283(1 tyre not covered)
iv) Engine Oil - Rs.1615/-
Radiator Coolant - Rs.1159/
Body Sealant - Rs.2164/-
Policy Excess - Rs.1000/-
Different in Labour not covered under insurance Rs. 89477-
Total Rs.32,000/-
Each and every grievances of the complainant had been treated upon meticulously by the 2nd opposite party to the utmost satisfaction and the delay was only due the non availability of the certain spare parts which had also been informed to the complainant. Mere delay could not amount to deficiency of service. Thus they sought for the complaint to be dismissed.
Crux of the defence put forth by the 3rd opposite party:-
It is stated that allegations in the complaint were all against opposite parties 1 & 2 and nothing was against the opposite party viz Universal Sompo General Insurance Co Iimited. The estimate towards damages of the car was assessed by the surveyor of the 3rd opposite party who informed the sanctioned amount both to the complainant and to the first and second opposite party. The compliant has not produced the documents of her own damages claim (O.D) under the policy issued by this opposite party and on the other hand she had claimed Rs.3,00,000/- as damages for deficiency in service from them which was not in according with the terms and conditions of policy in respect of O.D. claim. As per the terms and conditions of policy the O.D. claims would cover only certain damages of vehicle and not the entire invoice amount. So any difference in claim amount has to be proved and claimed by her against the first, second and fourth opposite parties and not against the opposite party who has always performed their part of contract. Thus they sought for the complaint to be dismissed.
Crux of the defence put forth by the 4th opposite party:-
As per the provisions of the Consumer Protection Act, 1986, if the complaint relates to any defects in the goods then proper adjudication of the complaint, test/analysis of the alleged defective goods, in the present matter the tyres, as per as per Section 13(1)(c) of the Consumer Protection Act, 1986 needs to be carried out in the interest of justice, for ascertaining the real cause of the alleged defectiveness of the tyre. Complainant has filed the complaint without any supportive technical documents to prove that tyre has manufacturing defect. Complainant has failed to produce the damaged tyre for the physical inspection before the Technical Service Engineers of 4th opposite party. Without the damage tyre the 4th opposite party could not carry out the physical inspection. The tyres manufactured by 4th opposite Party are governed under Bridgestone Warranty Policy. The Bridgestone Tyres are governed in accordance with the Bridgestone Warranty Policy however warranty stands only against the tyre damaged due to manufacturing defect only and not against damages caused by Road hazards and other external factors, and that any damage in the Bridgestone manufactured tyre was to be inspected by technical service engineer of the 4th opposite Party who is technically trained and qualified for inspection of the tyre, and if after inspection done by the technical service engineer, the damaged tyre reports any manufacturing defect then the same could be replaced in accordance with Bridgestone Warranty policy. Service engineer had visited M/s. Capital Honda, Trichy several times and had discussion with Service Advisor, Manager and Warranty In-Charge Officer. The Complainant failed to produce the damaged tyre for physical inspection. Without physical inspection the 4th opposite party could not come to a conclusion that whether the tyre was having manufacturing defects or not. The duty and responsibility of 4th opposite party was only after the Complainant had produce the damaged tyre for the physical inspection. Damage in the tyre was purely a technical issue and the Complainant has filed this complaint before this commission without any supportive technical documents or without any technical inspection report. Hence at prima facie it clearly shows that the complaint is false and baseless. It was settled principle that pursuant to the Section 102 of Evidence Act, 1872 that burden of proof in a suit or proceeding or complaint lies with the complainant. In the present complaint under reply, if the complainant alleges manufacturing defect in said car and tyres, then the burden to prove the defect lies on the complainant. If the Complainant alleges manufacturing defect in the tyre then actual cause of damage in the tyre could be proved only by testing done by an appropriate laboratory defined under the section 2(1)(a) of the Consumer Protection Act, 1986. The complainant's complaints were timely attended. Thus they sought for the complaint to be dismissed.
The complainant has filed proof affidavit and documents Ex.A1 to Ex.A24 were marked on their side. On the side of 2nd opposite party proof affidavit was filed and Ex.B1 to Ex.B3 & Ex.B7 &Ex.B8 were marked on their side. The 1st opposite party proof affidavit was filed and Ex.B4 to Ex.B6 was submitted on their side. The 4th opposite party filed written version they did not file any proof affidavit and written arguments and hence on the side of 4th opposite party evidence and written arguments stage was closed.
Points for consideration:-
Whether the alleged acts on the part of the opposite parties in not replacing a new car for the complainant in the place of the damaged vehicle amounts to deficiency in service and whether the same has been successfully proved by the complainant?
If so to what relief the complainant is entitled?
Point No.1:-
On the side of the complainant the following documents were filed in support of the complaint allegations;
Tax Invoice copy of New Car issued by the 2nd opposite party dated 13.02.2018 was marked as Ex.A1;
Copy of debit note for registration charges dated 13.02.2018 was marked as Ex.A2;
Copy of debit note for Insurance Charge dated 13.02.2018 marked as Ex.A3;
Copy of Tax Invoice dated 16.02.2018 was marked as Ex.A4;
Payment receipts issued by Olympia Honda was marked as Ex.A5;
Job Card issued by the 2nd opposite party when car taken for service dated 20.09.2018 was marked as Ex.A6;
Copy of CSR dated 21.09.2018 was marked as Ex.A7;
Photographs of damaged car was marked as Ex.A8;
Email sent by the complainant to customer care dated 03.10.2018 was marked as Ex.A9;
Acknowledgement of email from the opposite parties dated 04.10.2018 was marked as Ex.A10;
Receipt for payment of Rs.32,000/- to the 2nd opposite party at the time of delivery of the car was marked as Ex.A11;
Email complaints from the complainant regarding defects dated 04.12.2018 & 06.12.2018 were marked as Ex.A12 & Ex.A13;
Legal notice sent by the complainant to the opposite parties dated 24.12.2018 was marked as Ex.A14;
Reply from the 3rd opposite party to consumer Helpline dated 02.01.2019 was marked as Ex.A15;
Closure report of consumer help line dated 14.01.2019 was marked as Ex.A16;
Reply from the opposite parties 2,3 & 4 were marked as Ex.A17 to Ex.A19;
Copy of RC Book was marked as Ex.A20;
Copy of insurance Policy was marked as Ex.A21;
Copy of warranty was marked as Ex.A22;
Proforma Invoice by the 2nd opposite party dated 30.11.2018 was marked as Ex.A23;
Satisfaction Note to the 2nd opposite party dated 19.11.2018 was marked as Ex.A24;
On the side of the opposite parties the following documents were filed in support of their contention;
Service history of the complainant’s vehicle was marked as Ex.B1;
Mail communication between complainant and 2nd opposite party was marked as Ex.B2;
Insurance Report was marked as Ex.B3;
Copy of policy was marked as Ex.B4;
Terms and conditions of Policy (Booklet) was marked as Ex.B5;
Claim Form was marked as Ex.B6;
Vehicle information was marked as Ex.B7;
Service Requests was marked as Ex.B8;
Written arguments was filed by complainant and opposite parties 2&3. 4th opposite party did not appear and hence after providing sufficient opportunities the written arguments stage was closed on their side.
The crux of the arguments advanced by the learned counsel appearing for the complainant is that the complainant’s brand new car HONDA CITY, Model I.5 VX CVT front tyre got burst unexpectedly as a result of which the car got capsized. Police Complaint was filed and the vehicle was taken to the 1st opposite party’s service centre, the 2nd opposite party herein. An insurance claim was also initiated which was approved and it was informed by the insurance company that an additional amount of Rs.32,000/- has to be borne by the complainant. However, the 2nd opposite party did not do the service upto the satisfaction of the complainant. It was submitted that the service centre collected Rs.32,000/- from the complainant but no proper invoice was given and as to what are the spare parts that were replaced. Inspite of having warranty and insurance neither the insurance company nor the Honda Car company, Honda Service Centre, the Bridgestone tyre company did not completely do their service properly. Only due to the substandard tyre the entire accident took place. The service centre/2nd opposite party failed to intimate the tyre company in time about the bursting of the tyre enabling them to prove new tyre as it was under warranty period. Thus the learned counsel appearing for the complainant sought for the complaint to be allowed.
The 2nd opposite party argued that the vehicle was entrusted on 10.11.2018 and not on 18.01.2019 as found in the notice. All the rectification works pointed out were carried out timely by the 2nd opposite party. No defective or substandard product was found in the vehicle as the vehicle had sustained external impact. At no point of time the complainant was eligible for a new car. As the tyre was cut due to the accident the question of warranty does not arise. There is no manufacturing defect in the tyre. As certain spare parts would not to cover bumper to bumper insurance the complainant was made to pay Rs.32,000/- towards certain repairs like paint polish treatment, engine oil, R. cooling etc. Thus stating that each and every grievance of the complainant was meticulously carried out by the 2nd opposite party the learned counsel sought for the complaint to be dismissed. The learned counsel submitted an additional written arguments stated that pending complaint the vehicle was sold to a third party and hence the complaint has to be dismissed on that score as the complainant is no more a consumer to maintain the complaint before this commission.
The 3rd opposite party by way of written argument had disputed their liability stating that there was no manufacturing defect on their part and the complaint allegations categorically points out only deficiency in service on the part of opposite parties 1 & 2. Mere statement that the complainant was mislead by selling substandard car and substandard parts will not bind the opposite parties. Thus they sought for the dismissal of the complaint.
On appreciation of the entire materials and pleadings presented before us, this commission could founds that the complainant has not made out a case of either deficiency in service on the part of opposite parties 1 to 3 & 5 in repairing/servicing the vehicle or manufacturing defect on the part of 4th opposite party. The pleadings of the complainant is not specific to point out whether her grievance is against opposite parties who repaired her car or against the opposite party who sold the car with manufacturing defect. The complainant had not taken out any application for inspection of the vehicle as rightly pointed out by the 2nd opposite party to prove that the service was not properly done by them. It is also an admitted fact that a sum of Rs.4,48,000/- was received from the insurance company by the complainant towards the repair charges. The contention by the learned counsel appearing for the 2nd opposite party that the vehicle was sold without the permission of the Commission pending the proceedings was also not disputed by the complainant. Thus as held by the NCDRC in Tata Motors Limited & Anr. Vs Hazoor Maharaj Baba & Anr. Dated 25.09.2013 once the vehicle was sold the complaint was no more a consumer, even on that score the complaint is liable to be dismissed. Thus the point is answered accordingly against the complainant.
Point No.2:-
As we have held above that the complainant had failed to prove any deficiency in service on the part of the opposite parties, she is not entitled to any reliefs as claimed in the complaint from the opposite party. Thus we answer the point accordingly.
In the result, the complaint is dismissed. No order as to cost.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 23rd day of December 2022.
-Sd- -Sd-
MEMBER-II PRESIDENT
List of document filed by the complainant:-
Ex.A1 13.02.2018 Invoice coy of New car issued by 2nd op. Xerox
Ex.A2 13.02.2018 Copy of debit note for registration charge. Xerox
Ex.A3 13.02.2018 Copy of debit note for registration charge. Xerox
Ex.A4 16.02.2018 Copy of Tax Invoice. Xerox
Ex.A5 ............. Payment receipts issued by Olympia Honda. Xerox
Ex.A6 20.09.2018 Job Card when care taken for service by 2nd op. Xerox
Ex.A7 21.09.2018 Copy of CSR. Xerox
Ex.A8 .............. Photographs of damaged car. Xerox
Ex.A9 03.10.2018 Email sent by complainant to customer care. Xerox
Ex.A10 01.10.2018 Acknowledgement of email from opposite parties. Xerox
Ex.A11 10.11.2018 Receipt for payment of Rs.32,000/- to 2nd opposite party at the time of delivery of the car. Xerox
Ex.A12 04.12.2018 Email complaint from the complainant regarding defects. Xerox
Ex.A13 06.12.2018 Email complaint. Xerox
Ex.A14 24.12.2018 Copy of legal notice sent to opposite parties. Xerox
Ex.A15 02.01.2019 Reply from the 3rd opposite part to consumer Helpline. Xerox
Ex.A16 14.01.2018 Closure report of consumer help line. Xerox
Ex.A17 18.01.2019 Reply from the 2nd opposite party. Xerox
Ex.A18 09.01.2019 Reply from the 3rd opposite party. Xerox
Ex.A19 03.01.2019 Reply from the 4th opposite party . Xerox
Ex.A20 ................. Copy of RC Book. Xerox
Ex.A21 .................. copy of insurnace policy. Xerox
Ex.A22 ............... Copy of warranty. Xerox
Ex.A23 30.11.2018 Proforma Invoice by the 2nd opposite party. Xerox
Ex.A24 19.11.2018 Satisfaction Note to the 2nd opposite party at Chennai. Xerox
List of documents filed by the 2nd & 3rd opposite parties:-
Ex.B1 ............... Service history of the complainant’s vehicle. Xerox
Ex.B2 ............... Mail communiation between complainant and 2nd opposite party. Xerox
Ex.B3 ............... Insurance Report. Xerox
Ex.B4 .............. Copy of policy. Xerox
Ex.B5 ............... Terms and conditions of policy (Booklet). Xerox
Ex.B6 .............. Claim Form. Xerox
Ex.B7 .............. Vehicle information. Xerox
Ex.B8 .............. Service Requests. Xerox
-Sd- -Sd-
MEMBER-II PRESIDENT
