State Consumer Disputes Redressal Commission
Anil Katyal vs Lovely Autos, Nexa on 23 October, 2024
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.457 of 2019
Date of institution : 23.07.2019
Reserved on : 23.09.2024
Date of decision : 23.10.2024
Anil Katyal son of late Sh. Inderjit Katyal, resident of 223, Indra Park,
Mithapur Road, Jalandhar.
Appellant/Complainant
Versus
1. Lovely Autos, NEXA, Dr. Ambedkar Chowk, Jalandhar through its
Proprietor/Director/Authorized Representative.
2. JKM Motors Pvt. Ltd., A-25, Sector-9, Noida-201301.
3. Maruti Suzuki India Ltd., Nelson Mandela Road, Vasant Kunj, New
Delhi-110070.
.....Respondents/Opposite parties
First Appeal Under Section 15 of the
Consumer Protection Act, 1986 against the
order dated 24.04.2019 passed by District
Consumer Disputes Redressal Commission,
Jalandhar in CC/375/2017
Quorum:-
Mr. H.P.S. Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Argued by:-
For the appellant : Sh. N.K. Banka, Advocate
For respondent No.1 : Sh. S.R. Bansal, Advocate
For respondent No.2 : Ex-parte
For respondent No.3 : Sh. Sahil Abhi, Advocate
KIRAN SIBAL, MEMBER
The present appeal has been remanded back by the Hon'ble National Commission, vide order dated 03.01.2024, passed in Revision Petition No.351 of 2021, whereby the order dated 12.11.2020 2 FA No.457 of 2022 passed by this Commission regarding dismissal of this appeal as time barred, has been set aside and direction has been issued to decide the present appeal afresh on merits. Accordingly, the appeal was restored at its original number and opportunities were afforded to the parties to defend the case.
2. This appeal has been filed by the appellant/complainant against the impugned order dated 24.04.2019 passed by District Consumer Disputes Redressal Commission, Jalandhar (in short, "the District Commission"), whereby the complaint filed by complainant against opposite parties (in short 'OPs'), under the Consumer Protection Act, 1986, was dismissed.
3. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
4. Brief facts for the disposal of the appeal are that the complainant purchased a vehicle i.e. Baleno Delta Petrol, model 01/2017 bearing registration No. PB-08-DP-8923 for Rs.6,02,653/-, vide invoice No.VSL16000647 dated 31.01.2017 from OP No.1. The vehicle was under warranty for two years and further extended warranty upto 30th January, 2021 or upto 80000 KM was given by OPs No.1 and 3. It was also assured by them that in case of any defect arisen or found in the said vehicle, the same would be removed by any authorized service station of OP No.3, free of cost. The complainant alleged that in the month of September 2017, he had gone to meet his son at Noida (Delhi). On 22.09.2017, there was a rainy day in Noida and the vehicle was parked in the parking of the colony outside the house. On the next day, 3 FA No.457 of 2022 when the complainant tried to start the vehicle, the same was not starting and it gave a whistling sound. The complainant approached OP No.2, who sent its mechanic at the site, who checked the vehicle and told that rain water had entered in the engine of the vehicle. Accordingly, the vehicle was towed to the service station of OP No.2 by spending an amount of Rs.1800/-, where OP No.2, after checking the vehicle, told the complainant that the engine of the vehicle was totally damaged due to entering of rain water in it. OP No.2 raised a demand of Rs.70,000/- + GST for repair and replacement of the engine, but the complainant refused to pay the said high demand of OP No.2. The complainant alleged that OP No.2 neither put the vehicle in order nor repaired/replaced the engine free of cost as the same was under
warranty. The complainant also contacted OP No.1 telephonically, who told that the damage to the vehicle due to entering of rain water in the engine, is not covered under warranty and suggested him to approach the manufacturer i.e. OP No.3. Thereafter, the complainant lodged complaint to OP No.3, vide No.NX3188456842, but no response was given by it. The complainant sent many emails and reminders to OP No.3 for redressal of his grievance, but all in vain. Alleging deficiency in service and unfair trade practice on the part of the OPs, the complainant filed consumer complaint before the District Commission and sought directions against the OPs to pay Rs.9,71,345/-, which included cost of the vehicle along with other charges as well as compensation.
5. Upon notice OPs No.1 & 3 appeared through counsel and contested the complaint, whereas OP No.2 failed to appear to contest the 4 FA No.457 of 2022 complaint despite service. As such, OP No.2 was proceeded against exparte.
6. In reply to complaint, OPs No. 1 & 3 raised certain preliminary objections, which are not required to be reproduced here for the sake of brevity. On merits, they stated that the vehicle in question was inspected on 25.09.2017 and it was found that the connecting rod had been bent due to entry of water in the vehicle. Therefore, the damage to the engine was due to water entry in it, which caused Hydrostatic Lock. The repair of the same was not covered under the warranty as per clause 4(5) as enumerated in the Owner's Manual. The said damage was caused to the vehicle due to negligence of the complainant, as such, the repair could not be covered under the ambit of warranty and had to be carried out on paid basis, which was duly communicated to the complainant. The complainant gave approval for the repair to be carried out and the same was delivered to the complainant after its repair in perfect and roadworthy condition. Further, as per clause 3 of the warranty policy, the obligation of the manufacturer is specific to repair or replace at its sole discretion, any part shown to be defective, with a new part or equivalent at no cost to the owner for parts or labour, when the manufacturers acknowledges that such a defect is attributable to faulty material or workmanship at the time of its manufacturing. The owner is responsible for any repair or replacement, which are not covered under the warranty. After denying the other averments made in the complaint, the OPs No.1 & 3 prayed for dismissal of the complaint.
5FA No.457 of 2022
7. The appearing parties led their evidence in support of their respective contentions and the District Commission, after going through the records and hearing learned counsel for the appearing parties, dismissed the complaint, vide impugned order. Aggrieved with the same, the present appeal has been filed by the appellant/complainant for setting aside the same.
8. Notice of the appeal was sent to the respondents but respondent No.2 failed to appear to contest this appeal and was proceeded against exparte vide order dated 04.04.2024.
9. We have heard the learned counsel for the appearing parties and have also carefully gone through the record on the file and written submission filed by them.
10. The learned counsel for the appellant/complainant has vehemently contended that the District Commission has failed to consider the fact that the vehicle of the appellant was in warranty and respondents only to come out of the ambit of the warranty has concocted the facts. No abnormal action is pointed out on the part of the appellant, which led to the damaging of the car. The learned counsel further argued that the reliance on the said clause by the District Commission is not applicable in the present case as the parking of vehicle in the rain, if spoils the car, then no vehicle in the world will be eligible to move on the roads. The impugned order passed by the District Commission suffers from illegalities and irregularities and has been passed on conjecture and surmises. The learned counsel further argued on the similar lines as 6 FA No.457 of 2022 stated in the complaint and prayed for acceptance of the present appeal by setting aside the impugned order.
11. On the other hand, the learned counsel for respondent No.1/OP No.1 has argued that the District Commission has rightly dismissed the complaint after appreciating the evidence and pleadings raised by the parties. The learned counsel has further argued on the similar lines as stated in the written reply filed by it before the District Commission and prayed for dismissal of the present appeal.
12. The learned counsel for respondent No.3/OP No.3 has argued that after inspection of the vehicle it was found that the connecting rod has been bent due to entry of water into the engine and the same happens when the vehicle is driven in water or there is water entry into the vehicle causing 'Hydrostatic Lock'. The damage so caused to the engine was due to negligence of the appellant and the same does not come under the warranty policy, which was conveyed to him, vide email dated 26.10.2017. The learned counsel further argued on the similar lines as stated in the written reply and prayed for dismissal of the present appeal.
13. We have given thoughtful consideration to the contentions raised by the parties and have perused the record on the file.
14. Admittedly the appellant/complainant purchased a vehicle i.e. Baleno Delta Petrol, model 01/2017 bearing registration No. PB-08-DP- 8923 for Rs.6,02,653/-, vide invoice No.VSL16000647 dated 31.01.2017 (Ex.C-1) from OP No.1. The fact that the engine of the vehicle was got 7 FA No.457 of 2022 damaged under warranty, which was for two years and further extended warranty upto 30th January, 2021 or upto 80000 KM also remains undisputed. The appellant/complainant alleged that there was a rainy day in Noida and he parked his vehicle in the parking area of the colony outside his son's house. On the next day, when he tried to start the vehicle, it did not start and it gave a whistling sound. The engine of the vehicle was got damaged due to manufacturing defect in it but the OPs had charged money for repair and replacement of the engine, whereas the same was required to be repaired/replaced free of cost as the same was under warranty. Alleging deficiency in service and unfair trade practice on the part of the OPs, the appellant/complainant filed consumer complaint before the District Commission, which has been dismissed vide impugned order. Aggrieved with the same the present appeal has been filed by the appellant/complainant.
15. The main grievance of the appellant/complainant in the present appeal is that the District Commission has failed to consider the fact that the vehicle in question was under warranty and no abnormal action is pointed out on the part of the appellant, which led to damaging the engine of the vehicle. The appellant/complainant further submitted that there was manufacturing defect in the vehicle in question and the OPs only to come out of the ambit of the warranty, have concocted the facts. On the other hand, the case of respondents No.1 & 3/OPs No.1&3 is that after inspection of the vehicle, it was found that the connecting rod got bent due to entry of water into the engine, which caused 'Hydosatatic Lock'. The said damage was caused due to negligence of 8 FA No.457 of 2022 the appellant/complainant, as such, the same was not covered under warranty. To determine the said controversy, we have perused the pleadings, evidence placed on record by the parties as well as impugned order. It is not in dispute that the vehicle in question was under warranty at the time when damage was caused to its engine. However, the OPs have refused to repair the vehicle free of cost as per warranty clause 4(5) mentioned in the Owner's Manual being negligence on the part of the complainant. It has been stated by respondents No.1 & 3/OPs No. 1 & 3 in their written reply at para No.7 that, "The car had suffered from hydro locking and a job card was duly drawn up in which that diagnose was noted. The same happened on account of the driving of the car through deep water. If the car is driven through such a deep water, impurities along with water enter the engine thereby causing misfiring of the cylinders leading to the seizing of the engine itself. The conditions in which the car was to be run and the precautions to be taken are mentioned in the owner's manual. It also contained the driving conditions under which the car has to be driven and the same is to be driven as per those conditions. It is to be insured that engine be not started as water could get sucked into the engine through the exhaust. A specific warning is given therein not to make an attempt to start the engine if the car is flooded."
16. Now, the only point for adjudication before us is whether the damage caused to the engine of the vehicle, was due to negligence of the appellant/complainant or whether there was an inherent defect in the vehicle due to which the engine seized in mere rain water? From the 9 FA No.457 of 2022 perusal of the complaint, we find that it has been clearly stated by the complainant that his car was lying parked in the parking area outside his son's house in Noida and it had rained on 22.09.2017. However, on the next day, when he tried to start his vehicle, it did not start rather it gave a whistling sound. He contacted OP No.2, who sent its mechanic and upon inspection, the complainant was told by the mechanic that water had entered in the engine of the vehicle. Thereafter the vehicle was towed to the service station of OP No.2. In the back drop of these facts, we are unable to establish that the appellant/complainant had driven the said vehicle in a flood area or in such circumstances, where the vehicle had been driven through deep water or had gone through the water lodged area. It is simply stated that the car was lying parked and on the subsequent day, he tried to start his vehicle, which means that on the day, when it was raining, the car was not made to start. A presumption would also be drawn that the water level in the parking area would have decreased on the subsequent day of the rain. As such, the reasons stated by OPs No. 1 & 3 for denial of repair, free of cost due to causing of 'Hydrostatic Lock' on account of driving the vehicle through deep water, is not tenable, especially when it has been duly admitted by OPs No.1 & 3 that the vehicle was towed from the parking area of the colony. The OPs No. 1 & 3 have failed to prove on record by leading any cogent evidence in the form of any expert opinion or otherwise that the vehicle was being driven through deep water or was lying in the flooded area or it had cut through a waterlogged area. It is pertinent to mention here that in many cases it has been seen that a vehicle with a low-mounted air intake is more vulnerable to hydrostatic lock when driving through 10 FA No.457 of 2022 standing water or heavy rain. Although damage caused by water entry into the engine is often excluded from the warranty, but the burden to prove that the said defect has occurred due to driving of the vehicle in a flood like situation, lies on the OPs, to which, they have miserably failed. Accordingly, we are of the considered opinion that since the vehicle in question was under warranty and the OPs have failed to prove any negligence on the part of the appellant/complainant by leading any cogent evidence, the OPs were liable to repair the vehicle in question free of cost. As the appellant/complainant has already paid the repair charges to the authorized service centre of OP No.3, it is liable to refund the same to the complainant. The District Commission has failed to consider this aspect and wrongly dismissed the complaint. As such, the impugned order is liable to be set aside.
17. A sequel to our above discussion, the present appeal filed by the appellant/complainant is hereby partly allowed and the impugned order passed by the District Commission is hereby set aside. Resultantly, the complaint filed by the appellant/complainant is also partly allowed with the following directions to respondent No.3/OP-3-Manufacturer:-
a) to refund the amount of Rs.61,359/- (Ex. C-13) paid by the appellant/complainant on account of repair charges of his vehicle along with interest @6% p.a. from the date of payment made by the complainant till its realization;
b) to pay a composite amount of Rs.40,000/- as compensation on account of harassment and mental agony as well as litigation expenses.11
FA No.457 of 2022
18. Respondent No.3/OP No.3 is directed to comply with the order within 60 days from the date of receipt of certified copy of the order.
19. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(H.P.S. MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER October 23, 2024.
(Dv)