State Consumer Disputes Redressal Commission
Pawan Kumar Goel Prop. Of M/S Chemical ... vs Bmw India Pvt. Ltd. on 27 September, 2024
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 321 of 2023 Date of Institution : 21.11.2023 Date of Decision : 27.09.2024 Pawan Kumar Goel, Proprietor of M/s Chemical Resources, Plot No.3A, Industrial Area Phase-II, Panchkula, Haryana. ......Appellant/Complainant V e r s u s BMW India Pvt. Ltd., Registered Office at: 2nd Floor, Oberoi Centre, Building No.11, DLF Cyber City, Phase-II, Gurugram, Haryana-122002. Proprietor/Director of Krishna Automobiles, office at: Plot No.125, Industrial Area, Phase-1, Chandigarh-160002. Ms.Vidya, CRM Manager (After Sales) Krishna Automobiles, Office at: Plot No.125, Industrial Area, Phase-1, Chandigarh-160002. .....Respondents/opposite parties Present:- Sh. Angad Singh, Advocate for the appellant. Sh. Shobit Phutela, Advocate for the respondent no.1. Sh.Jagvir Sharma, Advocate for respondents no.2 & 3. =============================================================== Appeal No. : 256 of 2023 Date of Institution : 25.09.2023 Date of Decision : 27.09.2024 M/s Krishna Automobiles, through its Partner Sachit Passi, Plot No.125, Industrial Area, Phase-1, Chandigarh-160002. Ms.Vidya, CRM Manager (After Sales) Krishna Automobiles, Plot No.125, Industrial Area, Phase-1, Chandigarh. ......Appellants/ opposite parties no.2 and 3 V e r s u s Pawan Kumar Goel, Proprietor of M/s Chemical Resources, Plot No.3A, Industrial Area Phase-II, Panchkula, Haryana. ....Respondent no.1/complainant BMW India Pvt. Ltd., Registered Office at: 2nd Floor, Oberoi Centre, Building No.11, DLF Cyber City, Phase-II, Gurugram, Haryana-122002. .....Respondent No.2/opposite party no.1 Present:- Sh. Jagvir Sharma, Advocate for the appellants. Ms.Sanya Kapoor, Advocate proxy for Sh. Shobit Phutela, 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.913 of 2023 and M.A. No.804 of 2023 (condonation of delay):-
Alongwith these appeals, respective applications have been filed by the applicants in Appeals bearing no.321 of 2023 and 256 of 2023 for condonation of delay of 47 days (as per the office 48 days) in Appeal bearing no.321 of 2023 and 7 days in Appeal bearing no. 256 of 2023, in filing the same. Arguments of the parties on these applications were heard.
2. For the reasons stated in these applications, we are of the considered view that the respective applicants have been able to satisfy that there had been a sufficient cause for not preferring the appeals within the stipulated period. In this view of the matter, these applications stand allowed and the delay of 47 days (as per the office 48 days) in Appeal bearing no.321 of 2023 and 7 days in Appeal bearing no. 256 of 2023, in filing these respective appeals is condoned. Accordingly, these applications stand dispose off.
Appeals bearing no.321 of 2023 and 256 of 2023:-
Appeal bearing no.321 of 2023 titled as Pawan Kumar Goel Versus BMW India Pvt. Ltd. and others has been filed by the complainant-Pawan Kumar Goel, for enhancement/modification of the relief awarded by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short the District Commission), vide order dated 02.08.2023, whereby the consumer complaint bearing no.216 of 2020 filed by him was partly allowed and the opposite parties no.2 and 3/respondents no.2 and 3 (Krishna Automobiles) were directed as under:-
"...In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OP No.2 & 3 are directed as under:-
to carry out the necessary repairs and replace/change the defective parts, if any, strictly as per terms and conditions of the valid extended warranty package.
to pay an amount of Rs.25,000/- to the complainant as compensation for causing mental agony and harassment to him;
to pay Rs.10,000/- to the complainant as costs of litigation.
Since no deficiency in service or unfair trade practice has been proved against OP No.1, therefore, the consumer complaint qua it stands dismissed with no order as to costs.
This order be complied with by the OP No.2 & 3 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...."
At the same time, cross appeal bearing no.256 of 2023 titled as M/s Krishna Automobiles and another Versus Pawan Kumar Goel and another has been filed by opposite parties no.2 and 3 (complaint against opposite party no.1 was dismissed) for setting aside the order impugned dated 02.08.2023 passed by the District Commission.
Before the District Commission, it was the case of the complainant that he purchased a BMW 730 LD car from the authorized dealer, opposite party no. 2. He stated that he had been using the vehicle for eight years, during which it covered approximately 60,000 kilometers. For the past four years, the complainant was facing significant maintenance issues. On July 6, 2016, opposite party no. 2 sent the complainant an extended warranty package via email, described as the BSI Plus & Extended Warranty Package (Annexure C-1). Convinced by the offer, the complainant paid Rs.3,74,379/- for the warranty extension (Annexure C-2). On May 16, 2020, the complainant reported a rear suspension issue. Following this, the vehicle was inspected at opposite party no.2's service center, where it was determined that the problem was with the air suspension caused by a malfunctioning air supply pump. The complainant believed that this issue was covered under the warranty policy. However, on the same day, opposite party no. 2 sent an email with an estimate of Rs.4,67,375.26 for the repairs, which shocked the complainant. He argued that the opposite parties' claims were unfounded, as he should not have to pay for repairs to parts covered under the warranty package. The complainant immediately raised his concerns, sending an email to opposite party no. 1 detailing the vehicle's maintenance issues (Annexures C-3 & C-4). He repeatedly requested the opposite parties to rectify or replace the defective parts in accordance with the warranty terms. Despite his efforts, the opposite parties' representatives informed him that the parts in question were not covered under the warranty and would incur additional charges (Annexure C-5). Frustrated by this response, the complainant sent a legal notice to the opposite parties (Annexure C-6), but received no resolution to his issues. Hence consumer complaint was filed by the complainant before the District Commission.
Opposite party no.1 contested the consumer complaint and submitted a written reply outlining its position. In this response, opposite party no. 1 stated that the extended warranty policy was purchased by the complainant on August 5, 2016. This was the fifth year of ownership for the vehicle, which had been purchased on September 8, 2011. Consequently, the repair-inclusive warranty expired in the sixth year of the vehicle's ownership, specifically on September 7, 2017. Opposite party no.1 stated that the complainant raised the issue regarding the vehicle's suspension on May 16, 2020. Since this complaint was made well after the expiration of the extended warranty policy, opposite party no. 1 stated that the complainant was not entitled to any benefits under an expired policy. They further clarified that the extended warranty packages offered are valid only up to the sixth year of vehicle ownership, commencing from the warranty start date. Additionally, opposite party no. 1 explained that it solely sells vehicles to opposite party no. 2, which then sells them to end customers, including the complainant. The vehicle in question was purchased by the complainant from opposite party no. 2, and the estimates for the necessary repairs dated May 16, 2020, and May 19, 2020, were also provided by opposite party no. 2 to the complainant. Opposite party no. 1 contended that implicating opposite party no. 2 in this matter, without a direct contractual relationship between the complainant and opposite party no. 1, is both illegal and extraneous to the legal framework governing this complaint. It maintained that any claims raised by the complainant against opposite party no.1 should not be considered, as there was no privity of contract between the complainant and opposite party no. 1.
Opposite parties No. 2 and 3 contested the consumer complaint and submitted a joint written reply. In their response, they clarified that the vehicle in question was purchased in the name of the firm, M/s Chemical Resources, which operates as a commercial entity. The invoice and registration for the car were issued in the firm's name, emphasizing that the transaction pertains to commercial activities. The warranty period concluded on September 7, 2016. They asserted that the complainant failed to disclose these critical facts, the reasons for which remain unclear. The opposite parties no.2 and 3 maintained that the estimate provided was accurate, as the requested repairs were not covered under the extended warranty, which had already expired. They referenced Annexure C-1, noting that it is neither a complete document nor relevant to the current complaint. Furthermore, the complainant had previously reviewed Annexure R-1 and had requested additional clarification regarding the service invoice, which is included as Annexure R-4. Opposite parties no.2 and 3 also pointed out that the details of the service package cited by the complainant were incomplete and were included solely to support the adjudication of the complaint. They emphasized the need for clarity and accuracy in the information presented in the complaint to ensure a fair resolution.
Rejoinder was filed by the complainant, wherein, all the averments made in the consumer complaint were reiterated.
The contesting parties led evidence by way of affidavits and documents before the District Commission.
The District Commission after hearing the contesting parties and on going through the material available on record, partly allowed the consumer complaint, as stated above, out of which these appeals have arisen.
We have heard the contesting parties and gone through the material available on the record, including the written arguments.
During pendency of appeal bearing no.321 of 2023, the complainant moved application bearing no.914 of 2023 for placing on record the bills of repairs, Annexure A to D, as additional evidence, showing that he has paid an amount of Rs.5,42,019/- to opposite parties no.2 and 3, qua the vehicle in question. Arguments on this application as well as on the main appeals were heard. The said bills are taken on record and as such, the said application stands disposed of, accordingly.
Following questions arise for consideration in these appeals:-
Whether the extended warranty purchased by the complainant from opposite parties No.2 and 3 on making payment of Rs.3,74,379/- was to start from the date of purchase of the vehicle in question or from the date of expiry of the original warranty given alongwith the new vehicle?
Whether, the complainant is entitled for refund of any amount paid by him towards repair of the vehicle in question/replacing of defective parts, during warranty/ extended warranty period or not?
Whether the complainant is entitled for enhancement of compensation already awarded by the District Commission and award of litigation expenses?
The primary question at hand is whether the extended warranty purchased by the complainant from opposite parties No. 2 and 3 commenced from the date of vehicle purchase or from the expiration of the original warranty. It is undisputed that the complainant acquired the extended warranty on August 5, 2016, just before the original five-year warranty was set to expire on September 7, 2016, following the vehicle's purchase on September 8, 2011. Opposite parties No. 2 and 3 have not provided any document or terms and conditions that demonstrate an agreement for the extended warranty to operate retrospectively from the vehicle's purchase date. In examining the email correspondence included as Annexure C-1, it is clear that the description simply refers to the " BSI Plus & Extended Warranty Package=10 Year/100000 km plus & RI 6 yr/200000 extended warranty". The significant sum of Rs.3,74,379/- paid by the complainant raises questions about the rationale behind such an expenditure if the extended warranty was to only cover a mere one-year period, particularly when the original warranty would have effectively reduced its value. Common sense dictates that a prudent consumer would not willingly pay such a substantial amount of Rs.3,74,379/- for an extended warranty if they were made aware that the benefits would only be applicable for one year following the original warranty's expiration. The very term "extended" suggests that this warranty is designed to provide additional coverage beyond the existing warranty period, commencing only once that period has concluded. It ensures there's no gap in protection, so if a product fails shortly after the original warranty expires, the extended warranty will cover the repair or replacement. If the intention of opposite parties No. 2 and 3 was indeed for the extended warranty to begin at the time of the original purchase of the vehicle in question, it would have been prudent for them to explicitly state this condition in their documentation, specifying that the warranty term would effectively amount to only one year of coverage following the original warranty. Unless and unless, no such condition is found mentioned in any of the document placed on record, it cannot be presumed that the extended warranty will start from the date of purchase of vehicle as well as original warranty. Moreover, if the extended warranty were to start from the date of purchase, the necessity and utility of the original factory warranty offered by opposite parties would be rendered questionable. Given that the necessary maintenance/defect rectification of the vehicle in question required on May 16, 2020 or before that, falls squarely within the bounds of this extended warranty, the failure of opposite parties No. 2 and 3 to provide the requisite repairs/replacement of defective parts, free of cost, constitutes both unfair trade practices and a deficiency in service. Based on the evidence presented and the absence of clear documentation indicating otherwise, this Commission also finds that the extended warranty purchased by the complainant commenced upon the expiration of the original warranty. The District Commission's conclusion in this matter was, therefore, justified and appropriate. The claim of opposite parties no.2 and 3 that the extended warranty commenced from the date of purchase of vehicle is unsubstantiated and, therefore, dismissed.
The next question that falls for consideration is, as to whether, the complainant is entitled for refund of any amount paid by him during warranty/extended warranty period or not? It may be stated here that admittedly the complainant had got repaired the vehicle in question during the warranty/extended period i.e. on 16.05.2020, on which date various parts of the vehicle including air supply system, sir suppl., air susp. were replaced by opposite parties no.2 and 3, as is evident from the job card, Annexure C-3 authenticity of which has not been doubted by the opposite parties no.2 and 3. Furthermore, as stated above, as per Invoice dated 28.02.2020 to 12.02.2021, Annexure A to D, it is coming out that the complainant had paid total amount of Rs.5,42,019/- to opposite parties no.2 and 3 for repair and replacement of defective parties of the vehicle in question. At the same time, we have gone through the exclusion clause contained in the extended warranty terms and conditions and found that only the parts like tyres, wheel balancing, alignment, vehicle washing, accidental damages and hydrostatic locks were excluded therefrom and that too if the vehicle has been taken to opposite parties no.2 and 3 for the said purpose only. As far as reliance placed by counsel for opposite parties no.2 and 3 on the exclusion clause, contained in Annexure C-1 that-replacement of any part under warranty would be discretion of BMW India and Dealer, it may be stated here that this condition is not applicable to the complainant, because opposite parties no.2 and 3 have already replaced the parts, as mentioned in the job cards, Annexure C-3/Annexures A to D and the dispute if any is qua payment thereof, being the vehicle under extended warranty on 16.05.2020, which issue already stood adjudicated by the District Commission and by this Commission in favour of the complainant. Even otherwise, it is not the case of opposite parties no.2 and 3 that the vehicle in question was brought by the complainant only for replacing of tyres, wheel balancing, alignment, washing, accidental damages and hydrostatic locks. Under these circumstances, we are of the considered view that if we order refund of the amount received by opposite parties no.2 and 3 towards repair/replacement of parts of the vehicle in question, during the period of warranty/extended warranty, that will meet the ends of justice.
As far as plea taken by Counsel for the complainant regarding enhancement of compensation and also litigation cost awarded by the District Commission is concerned, it may be stated here that we are of the considered view that the amount of compensation to the tune of Rs.25,000/- for mental agony and harassment and also cost of litigation to the tune of Rs.10,000/- awarded by the District Commission is on the lower side, keeping in view the facts of this case. Under these circumstances, if compensation to the tune of Rs.35,000/- is awarded to the complainant for the mental agony and harassment suffered by him and also litigation expenses to the tune of Rs.20,000/- is awarded, that will meet the ends of justice.
In view of the above discussion, it is held that the impugned order passed by the District Commission, needs modification. Resultantly, appeal bearing no.321 of 2023 titled as Pawan Kumar Goel Versus BMW India Pvt. Ltd. and others stands partly allowed. The order dated 02.08.2023 passed by the District Commission is modified and the respondents/opposite parties no.2 and 3 (Krishna Automobiles) are jointly and severally directed as under:-
To refund to the complainant-Pawan Kumar Goel, the entire amount received i.e. Rs.5,42,019/- for repairs/replacement of defective parts of the vehicle in question, being the same under warranty/extended warranty, alongwith interest @9% p.a. from the date of receipt of the same, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter, they shall be liable to pay the said amount alongwith penal interest @12% p.a. from the date of default till realization.
To pay compensation to the tune of Rs.35,000/- for causing mental agony and harassment to the appellant/complainant and also 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, thereafter, they shall be liable to pay the said amounts alongwith interest @9% p.a. from the date of default till realization.
Consequently, appeal bearing no.256 of 2023 titled as M/s Krishna Automobiles and another Versus Pawan Kumar Goel and another is dismissed with no order as to cost.
All pending applications in these cases stand disposed of, accordingly.
Certified copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected case file, forthwith.
The concerned files be consigned to Record Room, after completion and the record of the District Commission, after annexing the additional documents, if any, submitted before this Commission in this appeal, be sent back immediately.
Pronounced 27.09.2024 [JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT (RAJESH K. ARYA) MEMBER Rg