State Consumer Disputes Redressal Commission
M/S Honda Cars India Ltd vs 1. Manu K. Bhandari, on 18 March, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 15 of 2013 Date of Institution : 14.01.2013 Date of Decision : 18.03.2013 M/s Honda Cars India Ltd., Plot No.A-1, Sector 40-41, Surajpur-Kasna Road, Greater Noida Industrial Development Area, Distt. Gautam Budh Nagar, Uttar Pradesh (U.P.)-201306 Appellant/Opposite Party No.2 V e r s u s 1. Manu K. Bhandari, S/o Sh. K.B. Bhandari, resident of House No.82-A, Sector 8, Panchkula, Haryana. (respondent no.1/complainant) 2. M/s Harmony Honda, Joshi Automotives Pvt. Ltd., Plot No.67, Industrial Area, Phase-II, Chandigarh. (respondent no.2/Opposite Party No.1) ....Respondents Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh.Karan Nehra Advocate for the appellant/Opposite Party No.2. Sh. Manu K. Bhandari, respondent no.1/complainant in person. Sh. Rajesh Verma, Advocate for respondent no.2/Opposite Party No.1. -------------------------------------------------------------------------------------- First Appeal No. : 22 of 2013 Date of Institution : 22.01.2013 Date of Decision : 18.03.2013 M/s Harmony Honda, Joshi Automotives Pvt. Limited, Plot No.67, Industrial Area, Phase-II, Chandigarh. Appellant/Opposite Party No.1 V e r s u s 1. Manu K. Bhandari, S/o Sh. K.B. Bhandari, R/o H.No.82-A, Sector 8, Panchkula. ..Respondent/complainant. 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 (U.P.) ....Proforma Respondent/Opposite Party No.2. Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. Rajesh Verma, Advocate for appellant /Opposite Party No.1. Sh. Manu K. Bhandari, respondent/complainant in person. Sh. Karan Nehra, Advocate for Proforma respondent/Opposite Party no.2. ------------------------------------------------------------------------------------- First Appeal No. : 29 of 2013 Date of Institution : 28.01.2013 Date of Decision : 18.03.2013 Manu K. Bhandari, S/o Sh. K.B. Bhandari, R/o H.No.82-A, Sector 8, Panchkula Appellant/complainant V e r s u s 1. Harmony Honda, Joshi Automotives Pvt. Limited, Plot No.67, Ind. Area, Phase-II, Chandigarh. 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 (U.P.) .... Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. Manu K. Bhandari, appellant/complainant in person. Sh. Rajesh Verma, Advocate for respondent no.1/Opposite Party No.1. Sh. Karan Nehra, Advocate for respondent no.2/Opposite Party No.2 BEFORE: JUSTICE SHAM SUNDER (Retd.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
PER JUSTICE SHAM SUNDER (Retd.), PRESIDENT This order shall dispose of the aforesaid three First Appeal Nos. 15 of 2013, titled as M/s Honda Cars India Ltd. Vs. Manu K. Bhandari and Anr., 22 of 2013 titled as M/s Harmony Honda, Joshi Automotives Pvt. Limited Vs. Manu K. Bhandari and Anr. and 29 of 2013, titled as Manu K. Bhandari Vs. Harmony Honda, Joshi Automotives Pvt. Limited and Anr., arising out of the common order dated 11.12.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it accepted the complaint, and directed the Opposite Parties, as under:-
i) To replace the entire AC Unit of the car in question without charging anything from the complainant.
ii) To Pay a sum of Rs.50,000/- to the complainant towards compensation for harassment and mental agony.
iii) To make payment of Rs.20,000/- towards litigation expenses.
The liability of the OPs shall be joint and several.
This order be complied with by both the OPs, within one month from the date of receipt of its certified copy, failing which, OPs shall be liable to refund the awarded amount to the complainant along with interest @ 12% p.a. from the date of filing of the complaint, till the amount is actually paid to the complainant, besides paying the litigation cost of Rs.20,000/-.
2. The facts, in brief, are that the complainant (now appellant in First Appeal No. 29 of 2013, respondent no.1 in First Appeal Nos. 15 of 2013 and 22 of 2013), purchased one Honda City 1.5 S MT car, from Opposite Party No.1, on 24.11.2008. When he started using the A.C. of the car, in February, 2009, it transpired that the same was totally ineffective, and a foul smell used to be emitted from the A.C. Unit. According to the complainant, whenever the vehicle was sent for service, to the service centre of the Opposite Parties, a complaint was made regarding ineffectiveness of the A.C., as also of emission of foul smell therefrom. Every time, the Officials of Opposite Party No.1, assured that necessary corrective measures would be taken, cause of foul smell shall be removed, and effectiveness of the A.C., would be set in order. However, each time, Opposite Party No.1, against the assurances given by it, failed to set right the things. When all the frantic efforts, made by the complainant, failed to elicit any fruitful results, a legal notice Annexure C-3, as a measure of last resort, was got served, calling upon the Opposite Parties, to replace the car, but to no avail. Also, the emails exchanged between the complainant and the Opposite Parties, were of no avail. It was stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to replace the vehicle, in question, with a new one, or in the alternative, refund the price thereof; compensation, in the sum of Rs.2 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.21,000/-.
3. Opposite Party No.1, (now appellant in First Appeal No. 22 of 2013, respondent no.2 in First Appeal No.15 of 2013, and respondent no.1 in First Appeal No.29 of 2013), in its written version, admitted the purchase of the car, in question, by the complainant, from it. It was denied that the A.C. of the car was ineffective. It was also denied that there was any kind of foul smell, emitting from the A.C. unit. It was stated that, whenever, the problem in the A.C. unit was brought to the notice of the technicians of Opposite Party No.1, the same was recorded, in the respective job cards of the car, and was attended to, by them efficiently and effectively to the utmost satisfaction of the complainant. It was further stated that problem of A.C. cooling was checked, and it was found O.K. It was further stated that the car, in question, was delivered to the complainant, in a perfect merchantable automobile, without any defect, in any of its parts. It was further stated that there was neither any problem, with regard to the working, efficiency and effectiveness of the A.C. unit, fitted in the car, nor it was emitting any foul smell. It was further stated that there was neither any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. Opposite Party No.2, (now appellant in First Appeal No. 15 of 2013, Proforma respondent in First Appeal No.22 of 2013, and respondent no.2 in First Appeal No.29 of 2013), in its written version, admitted the purchase of the car, in question, by the complainant, in November 2008. It was stated that, for the first time, a complaint, regarding ineffectiveness of the A.C. and emission of foul smell therefrom was made in June, 2009. It was further stated that the A.C. system of the vehicle was checked and found in perfect working condition, as per the given specifications. It was further stated that, whenever the defects were brought to the notice of Opposite Party No.2, by the complainant, the same were rectified to his entire satisfaction. It was further stated, that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The Parties led evidence, in support of their case.
6. After hearing the Counsel for the Parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
7. Feeling aggrieved, First Appeal Nos.
15 of 2013, titled as M/s Honda Cars India Ltd. Vs. Manu K. Bhandari and Anr., and 22 of 2013 titled as M/s Harmony Honda, Joshi Automotives Pvt. Limited Vs. Manu K. Bhandari and Anr., were filed, by the appellants/Opposite Parties No.1 and 2, respectively, for setting aside the impugned order, being illegal.
8. First Appeal No. 29 of 2013, titled as Manu K. Bhandari Vs. Harmony Honda, Joshi Automotives Pvt. Limited and Anr., was filed by the appellant/complainant, for modification of the order impugned, by allowing the complaint, in terms of the prayer, made in the same (complaint).
9. We have heard the complainant/appellant in person, in First Appeal No.29 of 2013 and the Counsel for the appellants, in the cross appeals, aforesaid, and, have gone through the evidence and record of the case, carefully.
10. The Counsel for the appellants/Opposite Parties No.1 and 2 in First Appeal Nos. 15 of 2013, titled as M/s Honda Cars India Ltd. Vs. Manu K. Bhandari and Anr., and 22 of 2013 titled as M/s Harmony Honda, Joshi Automotives Pvt. Limited Vs. Manu K. Bhandari and Anr., submitted that, though a panel of experts, was appointed by the District Forum, vide order dated 10.8.2010, the car was produced before the said panel by the complainant, in April 2011, without any plausible reason. They further submitted that, even after the remand of the case, by this Commission, to the District Forum, the detailed objections filed by the Opposite Parties, were not duly taken into consideration, by it (District Forum). They further submitted that only inspection of the car, was conducted by the Professors and Workshop Instructor of the Punjab Engineering College, whereas, Section 13(1)(c) of the Act, provides that where the complainant alleges a defect in the goods which cannot be determined, without proper analysis of test, the District Forum is required to refer the goods to the appropriate laboratory. They further submitted that according to Section 2 (a) of the Act, the appropriate laboratory means a laboratory or organization recognized by the Central Government or the State Governments, or any such laboratory or organization, established by or under any law, for the time being in force. They further submitted that the Punjab Engineering College, in the instant case, the alleged experts whereof inspected the car, did not fall with the purview of the appropriate laboratory, referred to above. They further submitted that the experts appointed, were neither competent nor equipped to look into the sophisticated car of such a standard. They further submitted that the experts failed to pinpoint the defect, in the A.C., as to why, such foul smell was being emitted therefrom. They further submitted that, no technical aspect of the A.C. was evaluated to find fault in its Compressor, Cooling coil, Receiver dryer etc. They further submitted that, no empirical data, pertaining to the ineffectiveness of A.C. was submitted by the panel of experts. They further submitted that, no reason was assigned by the panel of experts, for arriving at a conclusion of emission of foul smell. They further submitted that even the panel of experts did not state, in the report, as to how, such a defect could be corrected. They further submitted that the gas used in the A.C., by Honda Siel Cars India Ltd.-Opposite Party No.2, is an odorless gas. They further submitted that, no problem relating to emission of foul smell had been technically found, by the panel of experts, when the AC system of the vehicle was functioning. They further submitted that the panel of experts of the Punjab Engineering College, did not have the requisite tools, with which the required tests could be performed, to find out the alleged defects aforesaid. They further submitted that the objections raised by the Opposite Parties, before the panel of experts, were never considered by them. They further submitted that, no diagnostic tool was used by the said experts, during the inspection, to find out the emission of foul smell in the AC Unit. They further submitted that, the report of the panel of experts did not reveal that any duct of the AC was opened to adjudge, as to whether, there was any manufacturing defect in the vehicle or not. They further submitted that the Opposite Parties had furnished a list of interrogatories, available at pages No.247/302 to 258/313 of the District Forum file, for the three experts of the panel and the replies, given by those experts, which are at pages No.259/314 to 264/319 of the District Forum file, clearly reveal that the same were vague and cryptic. They further submitted that, thus, the report of the panel of experts of the Punjab Engineering College, Sector 12, Chandigarh, could not be taken into consideration. They further submitted that, as such, the order of the District Forum, being illegal, is liable to be set aside.
11. On the other hand, the appellant/complainant in First Appeal No. 29 of 2013, titled as Manu K. Bhandari Vs. Harmony Honda, Joshi Automotives Pvt. Limited and Anr., submitted that the delay in producing the car, before the panel of experts of Punjab Engineering College, Sector 12, Chandigarh, was on account of the reason, that the fee of the Expert Committee was excessive. He further submitted that when a fresh application, for appointment of another expert for examining the defects, in the AC was made, on account of the excessive fee of the panel of experts, and the same was dismissed, the vehicle was produced before the said experts of Punjab Engineering College, Sector 12, Chandigarh. He further submitted that there is a full-fledged Mechanical Engineering Department, in Punjab Engineering College, Sector 12, Chandigarh, which is a deemed University. He further submitted that the report of the experts i.e. Dr.V.P.Singh, Dr.Sushant Sameer and Mr.Gopal Dass is categoric and the defects pointed out by the complainant, were found by them. He further stated that the order dated 10.08.2010, of appointing the panel of experts, by the District Forum was never challenged, by way of Revision Petition, by the Opposite Parties. He further submitted that the representative of the Opposite Parties, duly participated, at the time of examination of the vehicle, and did not raise any objection, at that time. He further submitted that the objections were filed only by Mr. Amit Sinha, who is a Legal Manager of Opposite Party No.2, and not a Mechanical Engineer. He further submitted that Mr. Jaswinder Singh did not make any endorsement that he had raised any objection to the report of the panel of experts. He further submitted that the objections, filed by the Opposite Parties, to the report of the panel of experts, being without any substance, were rightly rejected, by the District Forum. He further submitted that, as such, the District Forum, was required to grant reliefs, claimed in the complaint, i.e. replacement of vehicle, in question, with a new one, or in the alternative, refund the price thereof; compensation, in the sum of Rs.2 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.21,000/-, but on the other hand, it granted the lesser relief, and, as such, its order required modification.
12. From the perusal of the record, it is evident, that the complainant purchased one Honda City 1.5 S MT car, from Opposite Party No.1, on 24.11.2008, vide invoice dated 24.11.2008, copy whereof is Annexure C-1. Copy of the retail invoice/job card dated 01.06.2009 is Annexure C-2. According to Annexure C-2, the complainant made a complaint regarding ineffective cooling of the A.C. and that the smell was coming inside the car. It is evident, from Annexure C-2 that cooling check was conducted. However, on checking, it was found OK. However, this retail invoice dated 01.06.2009 was not signed by the complainant. It means that the complainant did not record any satisfaction note, with regard to the observation, made by the service advisor/mechanic of Joshi Automobiles Private Limited, after rectification of the defects, mentioned therein. There is another repair order dated 06.10.2009 at page No.67/108 of the District Forum file. The complaint made by the complainant, was to the effect, that the AC cooling was too low and the smell was coming inside the car. It is further evident, from this repair order that the customer requested for checking the clutch plates etc. There is another service check sheet dated 24.11.2008 of Harmony Honda, (Joshi Automotives Pvt. Ltd.)-Opposite Party No.1, at page No.69/110 of the District Forum file. The complaint made by the complainant was that the A.C. was cooling too low. He also demanded check with regard to clutch plates. Even the legal notice through registered post on 5.11.2009, at page Nos. 71/112 to 77/118 of the District Forum file, was sent by the complainant, to the Opposite Parties, with regard to ineffectiveness of the AC and foul smell coming from the same (A.C.). The complainant, in clear-cut terms, in the complaint, stated that foul smell was coming from the A.C. of the vehicle and the same (A.C.) was ineffective. He also stated in the complaint that Mr. Jaswinder Singh, Service Advisor, pointed out that probably there was a manufacturing defect, in the vehicle. It was further stated, by the complainant, in the complaint, that Mr. Rakesh, representative of the Opposite Parties, could not dispute the fact that the AC of the car was giving a foul smell and was ineffective on 23.10.2009, after keeping the vehicle for 10 days. No affidavit of Mr.Jaswinder Singh, was placed on the record, to rebut the averments, made, by the complainant, in the complaint. Even from the email messages at pages 80/121 to 83/124 and 85/126, sent by the complainant, to the Opposite Parties, it is evident, that the problems in the car, with regard to foul smell coming from the A.C. and low cooling of the same (A.C.), were still persisting and there was no improvement in the situation. Even the affidavit of Mr. Rakesh Kumar, aforesaid, was not filed by the Opposite Parties, to rebut the assertions made by the complainant, in the complaint. The car was purchased on 24.11.2008 i.e. during the winter season, and for the first time, problem with regard to foul smell coming from the A.C. and low cooling of the same (A.C.), was reported on 01.06.2009. It means that when, in the summer season, the complainant started using the A.C., the problem of emission of foul smell therefrom and ineffectiveness of the same (A.C.), came to his notice, upon which, he intimated the Opposite Parties. From the aforesaid documents, it was, thus, proved that right from the very beginning, there was a problem, with regard to emission of foul smell from the A.C. and low cooling of the same (A.C.) and the complainant had complained about the same, to the Opposite Parties, but the same were never rectified to his satisfaction. No satisfaction note of the complainant was produced by the Opposite Parties, to the effect, that after rectification of these defects, he (complainant) was satisfied. No cogent and convincing evidence was produced by the Opposite Parties, to prove that, actually, neither there was any foul smell coming from the A.C. nor there was low cooling of the same (A.C.). Under these circumstances, the complaints, referred to above, made by the complainant, with regard to the vehicle, in question, could be said to be correct. Once the defects aforesaid, in the vehicle, were not rectified, to the satisfaction of the complainant, certainly there was deficiency, in rendering service, on the part of the Opposite Parties.
13. Coming to the report of the panel of experts aforesaid, of Punjab Engineering College, Sector 12, Chandigarh, it may be stated here, that, as per the order dated 10.08.2010, passed by the District Forum, the vehicle was ordered to be sent to the Mechanical Laboratory of Punjab Engineering College, Sector 12, Chandigarh, which is a deemed University. It may further be stated here, that the report is correct, for the reasons to be stated hereinafter. The car was inspected by Dr.V.P.Singh, Head of the Mechanical Engineering Department, Punjab Engineering College, Dr.Sushant Sameer, Assistant Professor and Mr.Gopal Dass Workshop Instructor, in the Mechanical Engineering Department, Punjab Engineering College. Both Dr.V.P.Singh and Dr.Sushant Sameer are having professional qualifications of Ph.D in Engineering and Mr.Gopal Dass is an ITI Apprentice, in Motor Mechanic, having an experience of 23 years. The car was inspected, in the presence of Mr. Manu K. Bhandari, complainant and Mr. Jaswinder Singh, Service Manager, Harmony Honda of Joshi Automobile Pvt. Ltd. They were also present at the time of test drive. During the test drive, the experts found that a foul smell was coming out of the ducts of the air conditioning system of the car, which was not bearable, even during the drive, for a distance of 13 kms. Not only this, during the test drive, the vehicle was driven at different speeds and at different blower speeds of the air conditioning system, but the smell was continuing throughout. In our considered opinion, the Punjab Engineering College is covered under clause
(iii) of Section 2(1)(a) of the Act. Not only this, when the order dated 10.08.2010 was passed by the District Forum, for sending the vehicle to the Punjab Engineering College, Sector 12, Chandigarh, for test aforesaid, in the presence of the Counsel for the Opposite Parties, no objection was raised by them. If they felt aggrieved against the order dated 10.08.2010, then they could very well challenge the same, by way of filing a Revision Petition, but they did not do so. No doubt, interrogatories were furnished by the Opposite Parties, and reply was given by the panel of experts aforesaid, to the same. There was no necessity of any scientific test, for finding out the emission of foul smell from the duct of the A.C. During the test drive of the vehicle, the experts could very well come to know, as to whether, the foul smell was being emitted from the duct of the A.C. or not. No specific scientific test was required for finding out the emission of foul smell from the duct of the AC. Even a common man, could while driving the vehicle, smell the foul smell, if that was being emitted from any part of the same (vehicle). In case, the Opposite Parties were not satisfied with the report of the panel of experts, then they could produce the report of their Automobile Engineer but they did not do so. The District Forum was, thus, right in holding that the report of panel of experts, of Punjab Engineering College, Sector 12, Chandigarh, being based on the cogent data and material, could not be rejected, merely on the basis of the irrelevant objections raised by the Opposite Parties. The District Forum was, thus, right in holding that the A.C. unit of the car of the complainant had a manufacturing defect, resulting into emission of foul smell therefrom.
14. Had there been some other defect, in the car, which could not be found, on account of the test drive of the same, it would have been said that the report of the panel of experts was not upto the mark. In the instant case the major defect, which was pointed out, by the complainant was that, at the time of driving the car and use of AC, foul smell was being emitted, from the duct of the same. They were not to opine about the solution to the problem of emission of foul smell, from the duct of the AC. The scope of their investigation was only, as to whether, the complaint of the complainant, to the effect that at the time of driving the vehicle and using its AC, foul smell was being emitted from the duct of the same or not. The objections filed by the Opposite Parties, to the report of the panel of experts, therefore, were rightly held to be without substance, by the District Forum.
15. Coming to the First Appeal No.29 of 2013, titled as Manu K. Bhandari Vs. Harmony Honda, Joshi Automotives Pvt. Limited and Anr., filed by the appellant/complainant, claiming the entire relief, sought for by him, in the complaint, it may be stated here, that the same does not carry any substance, and deserves to be dismissed. The complainant claimed replacement of the car, or in the alternative refund of the price thereof; compensation, in the sum of Rs.2 lacs, for mental agony and physical harassment; and legal expenses to the tune of Rs.21,000/-. It was not that the entire vehicle, suffered from inherent manufacturing defects. Only foul smell was coming out of the duct of the AC, when in use. When there is a specific defect, shown in a particular part of the vehicle, then in our considered opinion, only that part could be ordered to be replaced, with a new one, so as to rectify the problem/defect.
Had the District Forum, come to the conclusion, that the entire vehicle was suffering from inherent manufacturing defect, the matter would have been different. The compensation, granted by the District Forum, to the tune of Rs.50,000/-, as also cost of litigation, to the tune of Rs.20,000/-, could be said to be reasonable, fair, adequate and commensurate, with the facts and circumstances of the case, The Consumer Foras are not meant to enrich the consumers, at the hands of the service providers. Under these circumstances, the complainant could not be said to be entitled to the reliefs, claimed by him, in toto, in the complaint. The submission of the complainant/appellant, in this regard, being devoid of merit, must fail and the same stands rejected.
16. No other point, was urged, by the complainant/appellant in First Appeal No.29 of 2013 and the Counsel for the appellants, in the cross appeals, filed by them, against the order impugned.
17. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
18. For the reasons recorded above, the aforesaid appeals, being devoid of merit, must fail, and the same are dismissed with no order as to costs. The order of the District Forum is upheld.
19. Certified copies of this order, be sent to the parties, free of charge.
20. The files be consigned to Record Room, after completion.
Pronounced.
18.03.2013 Sd/-
[JUSTICE SHAM SUNDER] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg