State Consumer Disputes Redressal Commission
Ajay Kr. vs Honda Motorcycle & Scooter India Pvt Ltd ... on 5 November, 2024
FA/120/2022 D.O.D.: 05.11.2024
MR. AJAY KUMAR VS. HONDA MOTORCYCLE & SCOOTER INDIA PVT. LTD. & ANR.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 25.07.2022
Date of hearing: 13.09.2024
Date of Decision: 05.11.2024
FIRST APPEAL NO.- 120/2022
IN THE MATTER OF
MR. AJAY KUMAR,
S/o SH. JAGDISH KUMAR VARSHNEY,
R/o CH. 563, WESTERN WING,
TIS HAZARI COURT, DELHI-110054.
ALSO AT:
B-12, GALI NO. 4, BHAJANPURA,
DELHI-110053.
(Through: Mr. Sandeep Garausa, Advocate)
...Appellant
VERSUS
1. HONDA MOTORCYCLE & SCOOTER INDIA PVT. LTD.,
THROUGH ITS DIRECTOR/CEO/CONCERNED OFFICER,
COMMERCIAL COMPLEX-II,
SECTOR-49-50,
GOLF COURSE EXTENSION ROAD,
GURUGRAM, HARYANA-122018.
2. RAJINDER HONDA,
THROUGH ITS PROP. /MANAGER/OWNER,
E-9, CHAND BAGH,
OPP. BHAJANPURA PETROL PUMP,
DELHI-110053.
(Through: Mr. Love Sharma, Advocate)
...Respondents
DISMISSED PAGE 1 OF 9
FA/120/2022 D.O.D.: 05.11.2024
MR. AJAY KUMAR VS. HONDA MOTORCYCLE & SCOOTER INDIA PVT. LTD. & ANR.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Appellant in person.
Mr. Love Sharma along with Ms. Kiran Sharma & Mr. Sweta
Singh counsel for the Respondent no. 1 & 2.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
PRESIDENT
JUDGMENT
1. The Appellant has filed the present Appeal under section 41 of the Consumer Protection Act, 2019, against the impugned order dated 08.06.2022, wherein the District Consumer Disputes Redressal Commission (North), Delhi, dismissed the Consumer Complaint No.153/2022 filed by the Appellant on the stage of admission in the following terms:
"We have heard the arguments of Complainant in person, who is an Advocate by profession, on the last date of hearing and reserved the orders on admissibility. Today, before we could pass the order, the Complainant has placed on record the job sheet of the first service of the vehicle in question and also the judgment of Hon'ble National Commission in the matter of Tata Motors vs Rajesh Tyagi [NCDRC RP No. 1030 of 2008, decided on 03.12.2013]. We have incorporated this new document and the judgment so referred to by the Complainant in this order as well.
Briefly stated, Complainant herein is the owner of a "Honda Activa 6G STD" Scooter bearing registration no. DL 5S CT 8549 (hereinafter "the said scooter"), which is manufactured by M/s Honda Motorcycle & Scooters Pvt. Ltd. (OP-1) and was purchased by the Complainant through OP-1's dealer M/s Rajinder Honda (OP-2) on 08/02/2022. It is the case of the Complainant that the said scooter he observed that initially, the said scooter was making a whistling sound when the speed of the said scooter reaches 45KMPH, which goes on increasing with the speed of the vehicle. He also alleges that at 70 KMPH, the said scooter makes a humming sound. It is also alleged that the maximum speed even with the maximum DISMISSED PAGE 2 OF 9 FA/120/2022 D.O.D.: 05.11.2024 MR. AJAY KUMAR VS. HONDA MOTORCYCLE & SCOOTER INDIA PVT. LTD. & ANR.
throttle, that the said scooter achieves is 85 KMPH. The Complainant argues that above defects in the vehicle are manufacturing defects and the OPs should be held liable for the same. He has prayed, inter alia, for a direction to the OPs to replace the said scooter.
We have heard the arguments and perused the record. The Complainant alleges manufacturing defect in the said scooter, but he has not filed any document to indicate the exact nature of manufacturing defect. He has only stated in the complaint that he has talked to several mechanics, who have confirmed that the said scooter has manufacturing defect, but there is report furnished by an independent engineer indicating the nature and extent of manufacturing defect in the said scooter. We suggested to the Complainant that let the vehicle be sent for independent technical expert examination at the Government Industrial Training Institute, Pusa, Delhi and the let the Ld. Principal, ITI, Pusa file its report before further consideration of this complaint, but the Complainant refused for such technical examination of the vehicle in question. He insisted that this Commission must issue notice to the OPs who shall first give evidence that the vehicle is not having any manufacturing defect.
For issuing any notice, the Complainant has to prima facie establish his case. The argument that OPs should deny allegations of the complainant and the Commission should issue notice on merely allegation of manufacturing defect, is not the legally correct approach. While filing complaint, the documents so attached and pleading of the complaint should prima facie establish existence of consumer dispute. In the case in hand, the documents and pleading only makes allegations and there is nothing on record to even hint towards existence of manufacturing defect in the said scooter At this stage, we would like to refer to the judgment of Honble Suprene Court in the matter of Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra [(2006) 4 SCC 644] in which Hon'ble Supreme Court has held that when the defects is not in various parts in the car, the replacement of entire vehicle cannot be justified. Further, in the same case, Hon'ble Supreme Court has also opined that when the Complainant refuses to get the vehicle inspected for ascertaining the defect, then the manufacturing defect in the vehicle cannot be assumed. This DISMISSED PAGE 3 OF 9 FA/120/2022 D.O.D.: 05.11.2024 MR. AJAY KUMAR VS. HONDA MOTORCYCLE & SCOOTER INDIA PVT. LTD. & ANR.
judgment has been relied upon by Hon'ble National Commission in the matter of Sushila Automobiles Pvt. Ltd. vs Dr. Birendra Narain Prasad [II (2010) CPJ 130 (NC)], has held that to establish the claim for the total replacement by a new vehicle, the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/ mechanical engineer that the vehicle suffered from inherent manufacturing defect. Opinion of an expert body in such cases would be an essential input, Hon'ble National Commission has opined.
In another matter namely, C. N. Anantharam vs M/s Fiat India Ltd. [(2011) 1 SCC 460], Hon'ble Supreme Court was dealing with a similar problem as faced by the Complainant herein and has opined that complaint relating to noise from the engine and the gear box, was no other major defect which made the vehicle incapable of operation, independent technical expert should give its opinion that there are inherent manufacturing defects in the vehicle. If there is no manufacturing defect in the vehicle, the manufacturer of the vehicle is under no obligation to replace the vehicle or refund the value of the vehicle so purchased by the Complainant.
In the case in hand, the Complainant has merely made certain allegations and have not filed any report of the independent technical expert to prima facie establish that there is any manufacturing defect in the said scooter He has also refused to get the vehicle inspected by an independent technical expert as suggested by the Commission.
Before we could pass this order, the Complainant has filed the copy of the job sheet of the first service of the said scooter and has also placed on the record the order passed by Hon'ble National Commission in the matter of Tata Motors vs Rajesh Tyagi [NCDRC RP No. 1030 of 2008, decided on 03.12.2013]. Complainant states that in view of the order passed by the Hon'ble National Commission in Tata Motors case (supra), this Commission cannot insist on prior filing of report of the independent technical expert to prima facie establish any manufacturing defect in the said scooter. The facts of the case do not apply to the case on hand. In the case of Tata Motors case (supra), the defects OCcurred within a few days of taking the delivery of the car, when the complainant noticed presence of water inside the car on the floor area under DISMISSED PAGE 4 OF 9 FA/120/2022 D.O.D.: 05.11.2024 MR. AJAY KUMAR VS. HONDA MOTORCYCLE & SCOOTER INDIA PVT. LTD. & ANR.
the front passenger seat. This could not be rectified by the OPs. However in the case in hand, the Complainant has made certain allegations of relating to noise from the engine and the gear box, which has not been substantiated by any document or any expert opinion. Hon 'ble National Commission in the matter of Baljeet Kaur vs Divine Motors [III (2017) CPJ 599 (NC)] held as under:
"When a manufacturing defect is alleged, the onus of proof has to be on the complainant. Admittedly, the petitioner/complainant had produced, in support of her allegation of manufacturing defect, her own affidavit along with affidavit of 7-8 more witnesses. The District Forum correcty held and the state commission concurred- that these affidavits are no substitute for an expert opinion, to hold that the vehicle was indeed suffering from some manufacturing defect(s)".
In the case in hand, the Complainant has not placed any document to substantiate his claim that the said scooter is having any manufacturing defect. The job sheet, which has been filed today, also indicates that the Complainant complained about some whistling noise and vibration at high speed of the said scooter. But there is no document to suggest that such sound and vibration is because of some manufacturing defect in the said scooter.
In the matter of Md. Hassan Khalid Haidar Vs. General Motors [NCDRC, RP No. 525/2018, Decided on 08/06/2018], Hon'ble National Commission was dealing with a case alleging manufacturing defect in the car and has held that in absence of any evidence to prove that the vehicle had a manufacturing defect either by producing the evidence of an expert or taking opportunity of submitting an application before the District Forum for appointment of an expert to examine the vehicle for an expert opinion, the Complaint is liable to be dismissed.
Hence, in absence of any opinion of independent technical expert, or any inclination of the Complainant to get the said scooter examined by an independent technical expert, as suggested by this Commission, while relying on the judgment referred above, we are not inclined to entertain this complaint. Hence this complaint is dismissed at admission stage itself."
DISMISSED PAGE 5 OF 9 FA/120/2022 D.O.D.: 05.11.2024
MR. AJAY KUMAR VS. HONDA MOTORCYCLE & SCOOTER INDIA PVT. LTD. & ANR.
2. Aggrieved by the aforesaid order of the District Commission, the Appellant/Complainant has preferred the present appeal contending that the District Commission has erred in dismissing the complaint case of the Appellant without even issuing notice to the Respondents. The Appellant further submitted that the District Commission itself assumed there was no defect in the vehicle, despite the absence of any comments from the Respondents in this regard. Pressing the aforesaid, the Appellant prayed for setting aside the order of the District Commission.
3. The Respondents, on the other hand has filed the reply to the present case and submitted that there is no error in the impugned order as the District Commission has rightly considered the mere submission of the Appellant regarding the defects in the vehicle and observed that the Appellant has failed to show any cogent, credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer which is required to show prima facie case against the Respondents. Further, the Respondents have also relied upon the following judgments in support of their case:
A) Classic Automobile Vs. Lila Nand Mishra & Anr. [I (2020) CPJ 235 (NC)] B) Suresh Chand Jain Vs. Service Engineer and Sales Supervisor, MRF Ltd. & Anr., decided on 16.12.2010 in RP Nos. 3845 & 3846 of 2006 [I (2011) CPJ 63 (NC)] C) Negi Sign System and Supplies Co. Vs. Rijulize Jacob decided on 07.01.2016 in RP No. 2677 of 2015 [II (2016) CPJ 19 (NC)] D) Baljeet Kaur Vs. Divine Motors [III (2017) CPJ 599 (NC)] E) Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra [2006 4 SCC 644] F) Sushila Automobile Pvt. Ltd. Vs. Dr. Birendra Narain Prasad [III (2010) CPJ 130 (NC)] G) C. N. Anantharam Vs. M/s Flat India Ltd. [(2011) 1 SCC 460] DISMISSED PAGE 6 OF 9 FA/120/2022 D.O.D.: 05.11.2024 MR. AJAY KUMAR VS. HONDA MOTORCYCLE & SCOOTER INDIA PVT. LTD. & ANR.
H) Tata Motors Vs. Rajesh Tyagi decided on 03.12.2013; I) Md. Hassan Khalid Haider Vs. General Motors [NCDRC, RP No. 525/2018 decided on 08.06.2018]
4. The parties were directed to file their respective written submissions, the written synopsis have been filed by the Appellant wherein he reiterated the facts mentioned in the present Appeal. The written synopsis has been filed by the Respondent no. 1 & 2 wherein they relied upon the abovementioned judgments and reiterated the facts mentioned in the reply to the present Appeal.
5. We have perused the material available on record and considered the arguments made by the parties at length.
6. The main question for consideration before us is whether the District Commission has erred in dismissed the complaint case no. 153/2022 on the stage of admissibility.
7. On perusal of record, we find that the District Commission has considered the case of the Appellant/Complainant upon the admissibility and dismissed the same on the ground that the Appellant has failed to establish his case or failed to show any defect in the said vehicle by any expert evidence.
8. Further, the record reflects that the Appellant had purchased a Honda Activa 6G STD Scooter bearing registration no. DL 5S CT 8549 from Respondent no. 2 (dealer) on 08.02.2022 which was manufactured by the Respondent no. 1. The Appellant observed that the vehicle was making a whistling sound when the speed of the said vehicle reaches 45KMPH, which goes on increasing with the speed of the vehicle. He also found that at 70 KMPH, the said vehicle makes a humming sound. Therefore, the Appellant approached the District Commission, North Delhi alleging manufacturing defects in the vehicle.
9. It is the case of Appellant that the District Commission has erred in dismissing the complaint case on the stage of admissibility.
DISMISSED PAGE 7 OF 9 FA/120/2022 D.O.D.: 05.11.2024
MR. AJAY KUMAR VS. HONDA MOTORCYCLE & SCOOTER INDIA PVT. LTD. & ANR.
10. To resolve this issue, we deem it appropriate to refer to catena of judgments namely "EID Parry Vs. Baby Benjamin-I [1992] CPJ 279, Tata Motors Vs. Sunil Bhasin - III [2008] CPJ 111, Chandreshwar Vs. Telco- I [2007] CPJ 2, Diamond Cement Vs. Rai Prexim India Pvt. Ltd. I [2003] CPJ 1 and Lovely Vs. Harmesh Lal - I [2007] CPJ 312" on similar issues, the Hon'ble National Commission has held that expert opinion is a condition precedent for establishing manufacturing defect.
11. In view of the aforesaid findings of the Hon'ble National Commission, it is clear that firstly, the onus of proof is upon the Appellant/purchaser to prove that the purchased vehicle suffered from manufacturing defect. However, in the present case, no expert opinion or evidence has been filed by the Appellant to prove that the vehicle in question suffered from any manufacturing defect.
12. Further, in "Ajita Chit Fund Pvt. Ltd. Vs Teleco I (2007) CPJ 204 and Swaraj Mazade Vs. P.K. Chak Kapoor" reported as "II (2005) CPJ 72"
wherein the Hon'ble National Commission has held as under:
"In the case in hand, the Complainant had not filed report or affidavit of any expert to say that there was any manufacturing defect. Extensive use of car also destroy the case of the complainant that car had any manufacturing defect"
13. Moreover, we find that the Appellant has visited twice to the service center of the Respondent no. 2, once for the denting & panting work and secondly for the 1st due service of vehicle. Therefore, devoid of any expert opinion, the prima facie case of the Appellant shows no manufacturing defect.
14. Keeping in view the law settled by the Hon'ble National Commission and the facts of the present case, we are of the view that the Appellant in the present case has failed to prove his case in regard to any inherent manufacturing defect in the subject car.
DISMISSED PAGE 8 OF 9 FA/120/2022 D.O.D.: 05.11.2024
MR. AJAY KUMAR VS. HONDA MOTORCYCLE & SCOOTER INDIA PVT. LTD. & ANR.
15. Consequently, we are in the agreement with the reasons given by the District Commission and fail to find any cause or reason to reverse the findings of the District Commission. In these circumstances, we uphold the order dated 08.06.2022 passed by the District Consumer Disputes Redressal Commission-I, (North District), Tis Hazari, Delhi-110054.
16. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
17. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
18. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
05.11.2024 LR-AJ DISMISSED PAGE 9 OF 9