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advantageconsumer.com
Consumer Protection Council, Rourkela |
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advantageconsumer.com
Consumer Protection Council, Rourkela |
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Honda Cars directed
to compensate for defective braking system
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI REVISION PETITION NO. 2453 OF 2012 (Against the Order dated 29/02/2012 in Appeal No. 710/2006 of the State Commission Kerala) M/S. HONDA SIEL CARS INDIA
LTD.
ORDERPlot No-1 Sector-40/41 Suraj Pur-Kasan Road Greater Noida Industrial Development Area Gautam Budh Nagar – 201306. UP ...........Petitioner(s) Versus M. UNNIKRISHNA MENON & ANR. Pranavam , Paliyam Road Thrissur. Kerala ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER Dated : 01 Oct 2019 MRS. M. SHREESHA, MEMBER
The present Revision Petitioner under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”) has been preferred by M/s Honda Siel Cars India Ltd. (for short “the Manufacturer”) against the order dated 29.02.2012 in First Appeal No. 710 of 2006 passed by the Kerala State Consumer Disputes Redressal Commission (for short “the State Commission”). By the impugned order, the State Commission, while allowing the Appeal of the Opposite Parties, has modified the order of the District Forum and directed the Opposite Parties to pay a sum of ₹1,00,000/- to the Complainant towards compensation along with interest @ 6% p.a. from 12.04.2004 till realization. ₹5000/- were awarded towards costs. 2. Briefly stated, the facts of the case are that the Complainant purchased a Honda City Gxi MT Car under invoice No. 351 dated 03.12.2004 from M/s Patel Cars Pvt. Ltd. (for short “the Dealer”) for a consideration of ₹ 7,29,633. On 03.02.2005, the said car met with an accident due to a defective break system. It happened as the car did not stop even after applying sudden break and dragged for 20 meters and collided with an auto-rickshaw which was coming from the opposite direction. It is asserted that the car was travelling at speed of 60 km/hr. and was not over speeding. Complainant issued a notice to the Dealer on 04.02.2005, but there was no reply. A copy of the said notice was also sent to the Manufacturer who responded vide letter dated 22.02.2005 and intimated the Complainant that they were taking steps to get the complete record from the Dealer and satisfy themselves about the brake system of the subject car. After the accident the car was handed over to the Manufacturer on 07.02.2005 and the same was re-delivered on 25.02.2005 after repairs. Even thereafter there was no improvement as the car could be stopped only after applying sudden break and that too after dragging for about 20 meters. It is pleaded that the said problem was a manufacturing defect and it was unsafe to use the car with such a dangerous breaking system. The technical staff of the Dealer informed the Complainant that the defect cannot be cured. The Complainant once again sent notice dated 26.02.2005 and demanded the Opposite Parties to take back the vehicle. However, the Manufacturer replied that the vehicle and its braking system was perfectly alright. Aggrieved the Complainant filed the Complaint before the District Forum seeking the following reliefs:- i. The Opposite Parties be directed to take back the car and pay back the amount of ₹ 7,29,633/- along with interest @ 12% from the date of purchase of the vehicle till realization. ii. ₹ 30,680/- be awarded towards compensation for mental agony and hiring of alternative vehicle. 3. Both the Manufacturer and the Dealer filed their separate Written Versions with common contentions. It was denied that the car could not be stopped after applying brakes while running at a speed of 60-70 km per hour. It was stated that there was no defect, much less a manufacturing defect in the brake system of the car. The Automotive Research Association of India, Pune has granted a certificate of compliance under Central Motor Vehicle Rules certifying that the vehicle complied with the requirement of the said Rules and that the Manufacturer and the Dealer are not liable to compensate the Complainant, if he had chosen to hire another vehicle. The Complainant is not entitled for any relief from them as there is no deficiency in service on their part. 4. District Forum allowed the Complaint and directed Opposite Parties to rectify the defects free of cost and in case the defects cannot be rectified, then to replace the vehicle with a new one along with costs of ₹2,000/- within a period of two months from the date of receipt of copy of the said order. 5. Aggrieved, the Manufacturer preferred an Appeal before the State Commission which, as detailed above, modified the order of the District Forum. 6. We have heard Learned Counsel for the parties and perused the record. 7. Learned Counsel appearing for the Manufacturer vehemently contended that the State Commission has erred in solely relying on the observations made by the Expert Commissioner in Expert Report completely overruling the contents of the Chief Examination tendered by the Expert Commissioner wherein the Expert Commissioner made statements contradicting the contents of his own Expert Report; that the Complainant had complained only about the brakes and that too only after the accident which is an after-thought to create a defence in his favour in the criminal case. He further submitted that even when the subject vehicle was brought to the workshop of the Dealer on various dates, the Complainants had no complaints with the brake system nor did he report any problem regarding the same. 8. It is also the case of the Manufacturer that the Complainant had driven the vehicle in a reckless manner and the same is evidenced in the FIR and, therefore, to state that the subject vehicle suffered from manufacturing defect with respect to the braking system is a wrong conclusion given by the State Commission. Perusal of the material on record shows that the main Complaint of the Complainant with respect to the subject car is that the car was skidding on application of the brake system, and that it was only because of the faulty brake system that the accident had occurred and despite repeated complaints given to the Manufacturer, the same was not properly rectified. For better understanding of the case the Expert Report dated 20.06.2006 is reproduced as hereunder:-
Regarding the test results, no standard data or information is available about the dragging of vehicle under abrupt braking conditions, for the new generation vehicles, under similar test conditions. Test result shows braking system works but drags under abrupt braking conditions. "I have received a work memo from Peninsular Honda Cochin, to which, I submit the following report. My inspection report has detailed all particulars and details of the inspection and there for queries contained in the work memo are answered briefly. Q1) The efficiency of the brake system. A The brake works; but on abrupt braking it drags. Q2) Stopping distance of the vehicle at a normal speed and over a speed of 70 Km/hr, if not normal stopping distance of a vehicle driven over 70 Km/hr. A Answer to the question clearly given in the inspection report. Q3) Any mechanical defect in the brake system. A Since on abrupt braking, the vehicle drags, it is clear that brake when applies, it works. Q4) A visit of the spot where the actual accident occurred. A The opposite party did not insist, actual spot inspection. Q5) As to whether the alleged accident was on account of the defective brake system. A Accident occurred due to dragging of the vehicle. Dragging is possible as explained in the complaint, even at an average speed of 65 KM/hr. Q6) As to whether the complainant has reported about the alleged defect in the brake system either before or any time after the alleged accident when the vehicle brought to the workshop for the periodic service and otherwise. A The information is not within my reach. Q7) What is the present odometer reading of the vehicle. A As given in the report above. Q.8) Would it be possible to drive the vehicle for long, if the brake system was defective? A. Possible to drive the vehicle with this braking system; but unsafe. Q.9) Whether the defect in the brake, if any, can be termed as manufacturing defect or same is due to reasons attributable to power maintenance, rough driving conditions etc. A. To my opinion the dragging of the vehicle to this much distance, on abrupt braking, mentioned in the report, at a moderate speed of 65 Kr/hr, can be due to design fault of the vehicle coupled with braking system. Poor maintenance, rough driving conditions etc. may accelerate the reasons for dragging, but will not absolve, from the design fault of the vehicle and its braking system.” Q10) Present condition of tyres. A. I have given in the report.” 9. Learned Counsel drew our attention to the deposition of the Service Manager of Honda which is dated 07.06.2006 in which he has stated as follows:- “Name : Jovet C. Jose Father’s/husband’s name : C.V. Jose Age : 31 years Occupation : Service manager Full address : Peninsular Honda, Prop. Patel Cars Ltd., NH 47 – Vythila Aaror Bypass, Madradu-Cochin Chief Proof Affidavit filed. The copy of the FIR provided by the complainant was shown. B2 marked. Cross for complainant I know how the accident occurred on 3.2.2005. Have received A2. OP2 was informed by the complainant through A2 that when the brake was applied the vehicle dragged and the accident happened. Page 2 It is also mentioned in A4. The complainant informed OP1. I had gone at the time of the Commission inspection. A tester named Saji had driven the vehicle. I drove the vehicle on February 25th. In 2005, this vehicle has a drag like all other vehicles. This vehicle stopped on abrupt braking. What is the reason for not mentioning in the version the fact that if you abruptly brake, the vehicle will drag (Ques). It is because abrupt braking is not recommended (Ans). Page 3 In an emergency situation, one will brake abruptly. In case of abrupt braking, if the vehicle is not in normal speed, it will drag. In NH47, the normal speed is 50 to 70 if there is no obstruction. I drove the vehicle and applied the brakes to test. In case of abrupt braking there is a drag. The complainant was given a vehicle with a defective brake system (Ques). That is not correct (Ans.). Even after repairing the vehicle many time, the complaint mentioned in A2 and A4 persists even now in the vehicle (Ques). Page 4 It is satisfactory in our examination (Ans). Re-examination After A2 and A4, the vehicle was brought for service. After A2 and A4, the complainant did not complain about the brakes. If sudden brake is applied in a vehicle with drag, when the wheels lock, the vehicle stops because of the friction between the road and the tyre. If all 4 brakes have holding lock in the same manner, the vehicle would drag straight. If there is a problem with one brake, the vehicle will go sideways. Page 5 When this vehicle was tested, no problem was found.” 10. The submission of the Manufacturer that only because the Complainant had chosen to brake abruptly, the vehicle, even in normal speed, will drag is not acceptable in the light of the report of the Expert wherein he mentioned that the vehicle was dragging even at an average speed of 68 Km./hr. 11. Based on the Expert Commissioner’s Report the District Forum has directed for rectification of the defects together with a meagre compensation of ₹2,000/-, failing which the vehicle had to be replaced. The State Commission while concurring with the findings of the District Forum has modified the order setting aside the alternate relief of replacement of the vehicle and since the cause of action was of the year 2005 and 8 years has lapsed, taking into consideration the time lapse, the State Commission has modified the order by awarding a lump sum compensation of ₹1,00,000/-. Learned Counsel for the Manufacturer drew our attention to the Governing Regulations of Motor Vehicle Rules relevant portion of which is reproduced as hereunder:- “It is stated that in India, the governing regulations is Motor Vehicle Rules which have been notified. Rule 126 of the Motor Vehicles Rules 1989 provides that on and from the date of commencement of the Motor Vehicles (Management) Rules 1992, every manufacturer of the motor vehicles shall submit a prototype of the vehicles to be manufactured by him for test by the Vehicle Research and Development Establishment of the Ministry of Defence of the Govt. of India, or the Automotive Research Association of India, Pune, or the Central Machinery Testing and Training Institute, Bundi (MP), or the Indian Institute of Petroleum, Dehradun, for grant of a certificate as to the Compliance of the Act and the Rules. In regard to these a Notification has also been issued by the Ministry of Surface Transport, Govt. of India, specifying relevant standards which every manufacturer has to comply to manufacture vehicles and in regard to passenger cars, it has been provided that the requirement shall be as per IS11852: 2001-brake requirements.” 12. It is observed from the record that as per the Expert Report the vehicle was dragging up to 21.75 meters while travelling at a normal speed of 65 km per hour. Questions 8 & 9 of the deposition is of significance in this matter. The same is reproduced as hereunder:- “Q.8) Would it be possible to drive the vehicle for long, if the brake system was defective? A. It is possible to drive the vehicle with this braking system; but unsafe. Q.9) Whether the defect in the brake, if any, can be termed as manufacturing defect or same is due to reasons attributable to power maintenance, rough driving conditions etc. A. To my opinion the dragging of the vehicle to this much distance, on abrupt braking, mentioned in the report, at a moderate speed of 65 Kr/hr, can be due to design fault of the vehicle coupled with braking system. Poor maintenance, rough driving conditions etc. may accelerate the reasons for dragging, but will not absolve, from the design fault of the vehicle and its braking system.” (Emphasis supplied). 13. Keeping in view the report of the Expert Commissioner, we do not see any illegality or infirmity in the concurrent finding of both the Fora below regarding defect in the car with respect to braking system. In the light of the specific findings given by the Expert, the rules relied upon by the Counsel for the Manufacturer solely cannot be taken into consideration to ascertain whether there was a defect or not. There is also an observation by the Fora below that the Complainant had written a letter to the Manufacturer with respect to the Complaint regarding the braking system. Keeping in view all the afore-noted reasons and expert opinion we do not find any illegality or infirmity in the concurrent findings of both the Fora below regarding the defect as defined under Section 2(1) (f) of the Act. The compensation of ₹ 1,00,000/- awarded by the State Commission is not only reasonable but is totally justified taking into the facts of the case. In the result, the Revision Petition is dismissed with no order as to costs. 14. Needless to add, that the amount deposited by the Revision Petitioner, before the District Forum, in compliance of the Order dated 12.10.2012, along with accrued interest shall stand released to the Complainant and the same will be adjusted in the decretal amount. TOP |
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