2. Joshi Automotive Pvt. Ltd., Plot No.67, Industrial Area Phase-II, Chandigarh, through its Managing Director.

….Respondent no.2/opposite party no.2

Sh. Rajvir Singh Sihag, Advocate for the appellant.

PRESENT:-

Sh. Updip Singh, Advocate for respondent no.1. Sh.Rajesh Verma, Advocate for respondent no.2. ===============================================================

BEFORE:- JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

MR.RAJESH K. ARYA, MEMBER.

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

M.A. No.291 of 2022, 323 of 2022& 346 of 2022 (condonation of delay):-

Alongwith these appeals, separate applications have been filed by the respective appellants for condonation of delay of 18 days (M.A. No. 291 of 2022) in FA No.36 of 2022 (Honda Cars India Limited Vs. Manish Kumar and anr.); delay of 12 days (M.A. No. 323 of 2022) in FA No.44 of 2022 (M/s Joshi Automotive Pvt. Ltd. Vs. Manish Kumar and anr.) and delay of 35 days (M.A. No. 346 of 2022) in FA No.49 of 2022 (Manish Kumar Vs. Honda Cars India Limited and anr.)

2. Arguments on these applications were heard. For the reasons stated in the respective applications, delay of 18 days (M.A. No. 291 of 2022) in FA No.36 of 2022 (Honda Cars India Limited Vs. Manish Kumar and anr.); delay of 12 days (M.A. No. 323 of 2022) in FA No.44 of 2022 (M/s Joshi Automotive Pvt. Ltd. Vs. Manish Kumar and anr.) and delay of 35 days (M.A. No. 346 of 2022) in FA No.49 of 2022 (Manish Kumar Vs. Honda Cars India Limited and anr.) is condoned and the said applications are disposed of accordingly.

Appeals no.36 of 2022, 44 of 2022 and 49 of 2022:-

The above captioned appeals have arisen out of the common order dated 13.01.2022 passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh, whereby consumer complaint bearing no.445 of 2018 stood partly allowed by it, as under:-

"……14. In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OPs are directed as under:-

i. to refund sale price of the vehicle in question i.e. Rs.11,44,018/- to the complainant upon return of the vehicle by him. However, no interest is being awarded on this amount as the vehicle is in the custody and control of the complainant and he used it at least for 1 year 9 months prior to the date of institution of the present consumer complaint.

ii. to pay an amount of Rs.35,000/- to the complainant as compensation for causing mental agony and

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harassment to him;

iii. to pay Rs.20,000/- to the complainant as costs of litigation.

15. This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.

16. Certified copies of this order be sent to the parties free of charge. The file be consigned..…."

2. Appeal bearing no.36 of 2022 titled as Honda Cars India Limited Versus Manish Kumar and anr. and 44 of 2022 titled as M/s Joshi Automotive Private Limited Versus Manish Kumar and anr., have been filed by opposite parties no.1 and 2 respectively, for setting aside the order impugned passed by the District Commission. Whereas, on the other hand, Appeal bearing no.49 of 2022 titled as Manish Kumar Versus Honda Cars India Limited and another has been filed by the complainant- Manish Kumar for modification of the order impugned, by granting the amount of Rs.36,809/- paid by him to the opposite parties during warranty period, for repair of his vehicle and also Rs.22000/- paid by him to the PEC for inspection of the said vehicle.

3. The facts in brief are that the complainant had purchased a car make "Honda City 1.5VMT(i- DTEC)" from the opposite parties on 30.12.2016 on making payment of Rs.11,44,018/-, vide invoice and sale certificate Annexure C-1. Apart from the cost of the car, he spent substantial amount of around Rs.21,500/- on the insurance and registration. In the month of August, 2017 the car started giving give problem of non-ignition/non-start and there was also a strange noise coming from the engine with excessive emission of smoke. Thereafter, the complainant approached opposite party no.2 from time to time to know the exact nature of the defect and the time required for removal of the same but it failed to give a clear response. On the other hand, at the time of delivery of the car, opposite party no.2 raised an invoice of Rs.36,809/- despite it being covered under warranty terms which provide that within 24 months of the purchase or 40,000/- kilometers. The complainant used the car and regularly got it checked from opposite party no.2, as it was giving problem in the engine time and again but the opposite parties failed to rectify the defective engine. Hence, consumer complaint was filed before the District Commission.

4. Opposite party no.1 filed its written reply and, inter alia, raised preliminary objection that the complaint pertains to opposite party no.2-Dealer who failed to repair the car of the complainant. The complainant has mishandled his car and drove it in water logging areas because of which the engine of the car got damaged. The complainant brought the car to the opposite party no.2 (dealer) for multiple repair work. During thorough inspection of the car, the engine of the car was found damaged and had water in it. Opposite party no.2 explained to the complainant that such repairs are not covered under warranty and that the complainant has to pay for such repairs as the same contributed to the accidental damages and not a manufacturing defect.

5. Opposite parties no.2 filed written reply, wherein, it was stated that there was no manufacturing defect in the vehicle as such the terms of warranty if any are not applicable to the facts of the present complaint. As per the records maintained by opposite party No.2, the vehicle of the complainant has been attended to most efficiently whenever it has been reported to the workshop of opposite party No.2 and has been repaired under the conditions of warranty wherever applicable. The car of the complainant was reported on 04.02.2017 at 1425Kms for first free service, 18.03.2017 at 5798Kms for second free service and for third service which was paid service at 10102 Kms, 16.08.2017 for general repairs at 15056Kms. Perusal of these visits would show that complainant has nowhere reported the problem of non-ignition, non-start, strange noise at any point of time. However, perusal of these visits again would show that the vehicle was attended to most efficiently and effectively to the most satisfaction of the complainant. The vehicle in question was sold subject to conditions to replace the defective parts when the opposite parties acknowledge any faulty workmanship. The warranty shall be applicable at the option of the opposite parties and be limited to either repair of goods supplied or the replacement of parts which the opposite party no.2 recognized as defective.

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Even the complainant has reported for workshop for periodic maintenance service on 25.02.2019 at 44664 Kms and it was a paid service. Perusal of the record would show that the problem of the engine noise has been rectified and the complainant has miserably failed to prove any deficiency in service or unfair trade practice on the part of opposite party No.2.

6. The contesting parties led evidence in support of their case.

7. The District Commission after considering the rival contentions of the contesting parties and on going through the material available on record, partly allowed the consumer complaint, in the manner stated above.

8. Hence these appeals.

9. Counsel for the appellants/opposite parties no.1 and 2 in Appeals bearing no.36 of 2022 and 44 of 2022 argued with vehemence that since not even an iota of evidence has been placed on record by the complainant to prove that the vehicle in question suffered from any manufacturing defect. They further submitted that even in the report dated 14.02.2020 given by PEC Chandigarh, the experts Dr.Sushant Samir, Professor, Professor Ankit Yadav, Assistant Professor and Sh.Gopal Dass, W.I. of Mechanical Engineering Department of Punjab Engineering College after inspection and test drive had opined that during inspection and test drive it has been observed that there was no problem in starting of the vehicle and no strange noise from engine was heard but after driving around 8 Kms emission of black colour was coming out from the exhaust of the vehicle which is not desirable. They further submitted that even the expert committee has also clearly opined that since the engine of the vehicle has been overhauled the manufacturing defects cannot be ascertained and as such, under these circumstances, it was not desirable for the District Commission to order refund of the amount paid in respect of the vehicle in question and in this view of the matter, the order impugned needs to be set aside.

10. On the other hand, counsel for the appellant-complainant in Appeal bearing no.49 of 2022 submitted that the order passed by the District Commission ordering refund of the amount paid in respect of the vehicle in question is perfectly alright and that the said order needs modification only to the extent that the complainant be granted the amount of Rs.36,809/- paid by him to the opposite parties during warranty period, for repair of his vehicle and also Rs.22000/- paid by him to the PEC for inspection of the said vehicle.

11. Under above circumstances, the moot question which falls for consideration is, as to whether, the District Commission was right in ordering refund of the amount paid in respect of the vehicle in question or not? It may be stated here that perusal of record reveals that the main grouse of the complainant is that in the month of August 2017 he noticed a strange noise coming from the engine with excessive emission of smoke from its exhaust, as a result of which the vehicle was taken to the workshop of the opposite parties for repairs, being under warranty. The complainant has further mentioned in his complaint that even after repairs, it was again found in the month of February 2018 that the problem of noise in the engine and excessive emission of smoke still persisted in the vehicle in question and that the opposite parties despite making efforts failed to rectify the said defect. Thus, it is clearly coming out from the record and also the version of the complainant himself that defect, if any, was in the engine of the vehicle in question, resulting into emission of black smoke from its exhaust. It is pertinent to mention here that even in the expert report dated 14.02.2020 given by PEC Chandigarh, it has been opined by the experts that after inspection and test drive it was observed that there was no problem in starting of the vehicle and no strange noise from engine, yet, after driving around 8 Kms emission of black colour was coming out from the exhaust of the vehicle which is not desirable. At the same time, it has also been opined by the said experts that the since the engine of the vehicle has been overhauled the manufacturing defects cannot be ascertained.

12. At this stage, it is significant to mention here that it is coming out from the record that the vehicle in question was for the first time taken to the workshop of the opposite parties on 20.08.2017, with a defect in its engine and as such, vide job card dated 20.08.2017, Annexure C-4, the entire engine was opened; number of parts were replaced and fitting was done with lathe work. Defect qua missing problem and water inside engine was also found, which was removed and the vehicle was handed over to the complainant thereafter. It is further coming out from the record that the vehicle in question was again taken to the workshop of the opposite parties with the engine problem and also missing problem, whereafter, number of engine parts were again replaced vide job card dated

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23.02.2018, Annexure C-5. Again on 28.03.2018, 11.04.2018 and 24.04.2018 vide job card Annexure C-6 colly., the vehicle was reported to the workshop of the opposite parties with the defect of engine noise. Thereafter, number of engine parts were again replaced on 19.07.2018 and vehicle was delivered to the complainant on receipt of labour charges of Rs.20000/-, as is evident from job card dated 19.07.2018 (at page 30 of the paper book of District Commission). Thereafter also, the vehicle was taken to the workshop on 02.08.2018 and 17.08.2018 with the defect of engine noise. Thus, the sequence of events narrated above, clearly goes to prove that it was on account of defective engine that the vehicle had been taken to the workshop of the opposite parties, a number of times, yet, despite replacing number of parts therein, the black smoke was still found by the experts of PEC Chandigarh on 14.02.2020, while inspection and test drive, which was not desirable, as opined by the said experts. However, since it was found by the said experts that the engine of the vehicle has been overhauled by the opposite parties, as such, they showed their inability to give any opinion qua manufacturing defect therein. Though opposite party no.1 has tried to wriggle out of the situation by contending that it was on account of water logging, as a result of which, cylinders and pistons were broken and the engine was overhauled, yet, in our considered opinion this contention is not supported by any documentary evidence and as such cannot be taken into consideration.

13. Be that as it may, it has been proved on record, as per the job cards/documents, referred to in preceding para of this order, that number of parts of the engine of vehicle in question were replaced for more than three times, even then the problem in the engine persisted and also black colour smoke was still found to be emitting therefrom. As such, this fact leaves no doubt with this Commission to hold that only the engine of the vehicle in question was suffering from defects, which are beyond repairs. However, when counsel for the opposite parties were confronted with the situation, they tried to wriggle out of the situation by placing reliance on the judgment-Maruti Udyog Limited Vs Susheel Kumar Gabgotra, 2006 (4) SCC 644 and stated that the only liability of opposite party no.1 is to replace or repair the defective engine of the vehicle in question and in no manner, refund of the amount paid can be fastened upon the opposite parties.

In our considered opinion, in the present case also, since the complainant has failed to place on record any evidence to prove that any other parts of the vehicle in question were also found defective, apart from the engine thereof, as such, in our considered view, in these circumstances, the District Commission was required of, to give directions to the opposite parties to replace the defective engine with a new one, free of cost,as the defect arose during the warranty period only, keeping in mind the law laid down by the Hon'ble Supreme Court in Maruti Udyog Limited's case (supra) but it fell into an error, in holding to the contrary. The order of the District Commission ordering refund of the amount paid in respect of the vehicle in question, thus, needs to be set aside.

14. Now coming to Appeal bearing no.49 of 2022 titled as Manish Kumar Versus Honda Cars India Limited and another, filed by the complainant-Manish Kumar for modification of the order impugned, by granting the amount of Rs.36,809/- paid by him to the opposite parties during warranty period, for repair of his vehicle and also Rs.22000/- paid by him to the PEC for inspection of the said vehicle, it may be stated here that though it has been held above that the complainant is not entitled to get refund of the amount paid in respect of the vehicle in question and on the other hand, only the engine of the vehicle needs to be replaced, free of cost, being under warranty period, yet, this Commission also cannot lost sight of the fact that the complainant had to take his new vehicle for repairs, number of times, to the workshop of the opposite parties, as referred to above. Consumer Protection Act is a benevolent social legislation and is aimed to provide better protection of the interests of the consumers as defined in the preamble to the Act itself. Whenever a brand new vehicle is sold to a consumer, there is an implied contract that the vehicle being sold does not suffer from and will not suffer from, any kind of fault or imperfection or shortcoming in the quality, potency and standard which is required to be maintained. Whenever a consumer goes for purchase of a brand new goods like vehicle in this case, his expectation is that he would not encounter or face any inconvenience or hardships from the very beginning. If he has to take the vehicle time and again to the workshop for removing defects, he suffers immensely in terms of loss of time, business, physical discomfort and emotional suffering, having not reaped the fruits of paying hard earned money for purchase of a new vehicle. One can

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imagine the plight of the complainant, who purchased a costly brand new vehicle for his comfort but on the other hand, it became a headache for him, as defects occurred in its engine, within a few months of its purchase. Under these circumstances, the complainant is definitely entitled to get compensation for mental agony and harassment, which in our considered opinion if awarded to the tune of Rs.50,000/-, shall be fair, adequate and meet the ends of justice.

15. Keeping in view the above discussion, we are of the considered view that the impugned order passed by the District Commission, ordering the opposite parties, to refund to the complainant, the amount paid in respect of the vehicle in question, being not based on the correct appreciation of evidence and law on the point, suffers from illegality and perversity, needs interference of this Commission and is accordingly set aside. Consequently all these appeals are disposed of, in the following manner:-

1. Opposite parties no.1 and 2 (Honda Cars India Limited and M/s Joshi Automotive Pvt. Ltd.) are directed to replace the defective engine of the vehicle in question, with a brand new one of the same specification, free of cost, as the defects arose in the engine of the vehicle within warranty period and make the vehicle defect free, within a period of 15 days, from the date of receipt of vehicle from the complainant-Manish Kumar, failing which they shall be liable to pay penalty @ Rs.200/- per day, till realization.

2. Opposite parties no.1 and 2 jointly and severally shall pay compensation to the tune of Rs.50,000/- to the complainant-Manish Kumar for causing him mental agony and harassment and also deficiency in providing service and also to pay cost of litigation to the tune of Rs.20,000/- within a period of 30 days from the date of receipt of a certified copy of this order, failing which the said amounts shall carry penal interest @9% p.a. from the date of passing of this order till realization.

16. Certified Copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected files.

17. The file be consigned to Record Room, after completion. Pronounced.

25.04.2023

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

Sd/-

(RAJESH K. ARYA)

MEMBER

Rg.

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