State Consumer Disputes Redressal Commission
Alok Gupta vs Bmw India Pvt. Ltd. on 14 March, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 14.03.2013 Case No. C-358/10 SHRI ALOK GUPTA - COMPLAINANT Proprietor of M/s Tirupati Balaji Overseas At S-382, 2nd Floor, Greater Kailash-I New Delhi. Versus 1. M/S BMW INDIA PVT. LTD. - OPPOSITE PARTY-1 Shivam House, 14F, Connaught Place, New Delhi. Also at: Building No. 8, Tower-B, 7th Floor, DLF Cyber City, Phase-II, Gurgoan 122001, Haryana. Through its Director 2. M/S DEUTSCHE MOTOREN PVT. LTD. - OPPOSITE PARTY-2 27-B, Shivaji Marg, Moti Nagar, New Delhi-15 Through its Director CORAM : S.A. SIDDIQUI - Presiding Member S.C. JAIN - Member 1. Whether reporters of local newspapers be allowed to see the judgment? 2. To be referred to the Reporter or not? S.A. SIDDIQUI (ORAL) JUDGEMENT
1. This complaint has been filed for the following reliefs:
(i) Refund of money of Rs. 25,20,470/- together with interest @ 18% p.a. from the date of purchase of the car till the date of actual payment.
(ii) Compensation to the tune of Rs. 1 Lac.
(iii) Compensation of Rs. 55,000/- for pain, suffering and money spent during the period on the car.
(iv) Rs. 55,000/- towards litigation expenses
(v) Rs. 5,000/- per day spent for hiring another car and driver from 6.10.2010 till the date of making the claim.
2. It has been alleged by the complainant, Sh. Alok Gupta, Prop. Of M/s Tirupati Balaji Overseas that he purchased BMW CKD 320D LCI(CE) bearing Chassis No. PN37 WBAPN37040vk61641, Engine No. 81617277A, Registration No. DL3CBM 5228 manufactured by M/s BMW India Pvt. Ltd, OP-1 sold through M/s Deutsche Motoren Pvt. Ltd.-Dealer, OP-2 on 15.2.2010 through invoice No. VSIP73325. The car was purchased for a sum of Rs. 25,20,470/-. At the time of purchase of car, complainant paid a sum of Rs. 5,30,096 to OP-2, which included Insurance and Road Tax. The complainant also secured a loan for Rs. 20,00,000/- from HDFC Bank, Chawri Bazar, Delhi with interest @ 12% p.a. The loan is being repaid through installments.
3. Hardly a week after taking the delivery of the car, it started giving numerous trouble. The trouble was reported to OP-2, M/s Deutsche Motoren Pvt. Ltd. The complainant was made to run after OPs almost quite regularly for getting the car worthy of using/trouble free but of no use. Right from April 2010, when the complainant again called by the OP-2 for complete checkup as the vehicle was started giving lot of trouble. Its engine had not been set right. There was no comfortable drive and even the body started giving lot of noise and rattling from the date of purchase till Sept. 2010. The complainant has not been able to enjoy a smooth and trouble free ride of the vehicle. During this whole period, the car had barely run about 1500 Kms.
The complainant had even felt embarrassment in front of others at several occasions as this costly car could not perform as promised. Ultimately on 16.10.10, complainant again went to OP-2 for repairs and rectifications of the defects. After about a week, complainant was informed by OP-2 that the car in question was having basic manufacturing defects and they will replace the car with a new one of the same model. Complainant agreed to this proposal as there was no choice left.
However, after few days, OP-2 retracted from his earlier stand on the ground that the Company had refused to replace the car and that they will repair the same by dismantling the engine.
They sought to dismantle the engine for which payment of Rs. 2-3 Lac was demanded. The complainant flatly refused to oblige as the repaired car will always carry stigma of being repaired besides reducing its cost considerably.
The OPs are demanding aforesaid money for dismantling and repair of the engine though the car was within the warranty period of 3 years. This car had manufacturing defects as it is started giving trouble since the time of its purchase.
Under these circumstances, the complainant had no choice but to leave the vehicle with the OP-2 with the hope that needful will be done. The car is still lying in the workshop of the OP-2 and nothing has been done so far.
Therefore, the complainant sent a notice dated 30.10.2010 to OPs which was served. OP-2 has failed to respond, however, OP-1 has sent a vague reply dated 12.11.2010 without any proper explanation. They want further time to inspect the car. The complainant sent another notice dated 29.11.2010 but the OPs have neither settled the claim as demanded in the notice nor doing anything which tantamount to deficiency in service. The cause of action arose firstly when the car was purchased on 15.2.2010 and thereafter on every time when the complainant requested refund of the amount together with interest and other charges and this Commission has jurisdiction to try the complaint.
3. The complaint was filed on 3.2.2010. The complaint was admitted and the OPs were issued notices for filing the reply.
4. OP-1 & 2 have filed their respective written statements raising a preliminary objection.
5. OP-1 maintained that complainant is not a consumer within the definition of Consumer under Section 2(1)(d) of the Consumer Protection Act, 1986 as the car in question was purchased by the complainant for commercial purposes. The car was purchased by and is registered in the name of M/s Tirupati Balaji Overseas for being used in its business operation. It was further stated in the written statement that the complainant has not come up before this Commission with clean hands. The car in question was brought to the workshop only twice, one for the replacement of tail light on 4.9.2010 and another for the hydrostatic lock on 6.10.2010. It was further alleged that the car was driven through waterlogged area. The water entered inside the engine and consequently the car suffered from hydrostatic lock, which cannot be repaired under the warranty. OP-1 has clearly informed the complainant in this regard. The complainant also did not file any Job card. The car does not suffer from any manufacturing defect. Whatever problems have occurred, it was on account of negligence of the complainant ignoring the prescribed instruction in the Owners Manual. Despite clear instruction to the contrary the car was driven in more than 30 cm deep water and therefore no cause of action was available to the complainant to file this complaint which deserves to be dismissed under Section 26 of the Consumer Protection Act with exemplary cost. It was also submitted that BMW India manufactures luxury and high-end cars after a lot of research and engineering innovations. The cars of this segment are sophisticated in nature and have to be handled with at least a minimum care and cautious, clearly given in the Owners Manual. BMW India are globally known for their quality and performance. After manufacture, it is put to stringent technical and quality check up and testing. When it is found perfectly in order, it is sold to customers.
6. BMW India sells cars to its authorized dealers under a dealership agreement on principal to principal basis and provides a manufacturers warranty. Once the cars are sold by BMW India to its authorized Dealers, in this case Deutsche Motoren Pvt. Ltd. (OP-2), its contractual obligations are limited to the reimbursement of parts and labour under warranty. In case of any problem/trouble, customers can approach the respective dealers for any service or warranty requirement. All BMW cars are sold with a two years unlimited mileage warranty, which covers the repair or exchange of defective components. Warranty is not extendable to cover the negligent handling of the car by its owner, as has been the case in the present complaint. The Complainants claim for warranty is baseless in the absence of any report or documents to prove any manufacturing defect in the car.
The following extracts of warranty conditions are very important and relevant:
This warranty does not apply to... Damage which results from negligence, improper operation of the vehicle, improper repair, lack of or improper maintenance, environmental influences, flood, accident or fire damage or use of improper or contaminated fuel. (Emphasis supplied)
7. In the present matter, the car has been handled negligently and improperly by the complainant/owner which are apparent from the following facts:
(a) The car was towed to the workshop of the OP-2 on 6.10.2010 with the complaint of noise from engine. The car was thoroughly checked up and the engineers of the OP-2 found that the engine of the car suffered mechanical damage from hydraulic locking due to ingestion of water through the intake system and there was no manufacturing defect.
The complainant was accordingly informed by OP-2 through e-mail dated 7.10.2010. Copies of the Job Card and the Check List of the car are Annexure B (Colly). Complainant was categorically informed by the OP-2 that the car had passed through waterlogged area and water entered inside the engine and therefore, the damage could be inspected only after the engine was dismantled completely. A copy of the said e-mail dated 7.10.2010 is Annexure C.
(b) It is significant to note that this fact was not being denied by the complainant.
(c ) The complainant has not given his consent/approval for carryi8ng out repair work in the car so far, and therefore, the car continues to be in possession of the OP-2.
8. The defect of hydrostatic lock occurs when driving is undertaken in waterlogged area and conditions where the water is above the level of the air intake system or the cars speed is excessive, creating a tall bow wave. While driving in waterlogged area, the speed of the car has got to be slowed and it has to be driven slowly and cautiously. Owners Manual prescribes the car to be driven in not more than 30 cm deep water, BMW cars have the air intake at the height of 68.00 cm (2.23 feet) creating a buffer of 37.52 cm (1.23 feet) for covering water movement on the road due to oncoming or other traffic. Since the water entered inside the engine of the car through the air intake system, certainly in breach of the instructions in the Owners manual, the Complainant drove the car through more than 30 cm deep water. Thus, it is user related damage and not a manufacturing defect and the OPs are not liable for any deficiency in service.
9. Denying the allegations made in the complaint, OP-1 alleged that reply to Notice dated 12.11.2011 was vague or misleading rather it was abundantly clear as all the allegations made in the Notice dated 30.10.2010 were duly replied. Copy of the reply dated 30.11.2010 is Annexure E. It was further denied that the complainant is bearing a loss of Rs. 5000/- per day in hiring other vehicle and driver. The complainant himself has not given consent for the repair of the vehicle in question and never came forward to take back the delivery of the vehicle. The vehicle is damaged due to complainants own negligence and OPs cannot be made liable for the same. The complainant is thus not entitled for any relief and the complaint is liable to be dismissed.
10. OP-2 also filed written statement which was broadly like OP-1. He also raised certain preliminary objections. Firstly, it was stated that the complaint is devoid of merit and it does not disclose any deficiency in service or consumer dispute, which is pre-requisite condition for approaching this Commission. Secondly, the complainant does not come within the definition of Consumer as denied under the Act. It was stated that OP-1 is a leading manufacturer of automobiles and of pre-eminent position in Automobile Industry. Before making the vehicle, it is to be under strict tests scrutiny and once it has passed the necessary quality control tests, the vehicle is sent for marketing. Even OP-2 on its level conducts PRE-DELIVERY INSPECTION before sale. When the vehicle is found road-worthy, it is offered for sale.
11. The vehicle in question was for the first time brought in the workshop of the OP-2 on 6.10.2010 with the complaint of noise from engine. Job Card was prepared and the vehicle was thoroughly checked up.
During the course of checking by the engineers of OP-2, it was found that the engine was damaged due to Hydrostatic Lock. The complainant was accordingly informed through e-mail dated 7.10.2010 at 4.15 p.m. (Annexure A). Through e-mail dated 7.10.10, complainant was informed by OP-2 that vehicle had passed through waterlogged area and water entered inside the engine. Through engine, it has damaged the engine, however, complete inspection, thorough check up can only be made after dismantling the engine and thereafter final estimate for repair can be prepared. Copy of the e-mail dated 7.10.2010 is Annexure B. The vehicle was driven against the instructions given in the Manual Book. The complainant was negligent and the damage was self-infected. There was no deficiency of any kind committed on the part of the OP-2.
12. Denying all allegations made in the complaint, the OP-2 maintained that the complainant is not entitled for any relief/compensation from the OP-2. OP-2 is only an authorized dealer or the service provider for sale of the vehicles in the market. All the guarantee/warranty or assurances were offered by the OP-1 only as per their terms and conditions, being a manufacturer of the vehicle. It was denied that no reply to the Notice dated 30.10.2010 was given by the OP-2. As a matter of fact, OP-2 replied the notice on 17.1.2011. The delay in reply was caused by the complainant himself. He was all the time forcing OP-2 to repair the vehicle in question under the warrantee and ignored the legal notice.
As stated earlier, it was found that engine was damaged due to hydrostatic lock as it was driven in a waterlogged area more than one ft. depth and the matter was duly brought to the notice of the complainant. Even then he filed the frivolous complaint after twisting the facts, therefore, the complaint is liable to be dismissed with cost under Section 26 of the Consumer Protection Act, 1986.
13. The parties led evidence in support of their case. Complainant filed affidavit by way of evidence. OPs also filed their evidence along with some documents.
Parties also filed their written arguments, which are filed on record.
14. We have heard Sh., Ashish Kapoor, Ld. Counsel for the Complainant, Sh. Rajesh Roshan & Ms. Rakshika Kaul, Advocates for OP-1 and Sh. Vikas Arora & Mohit, Advocates for the OP-2.
15. It was argued on behalf of the complainant that a BMW CKD 320D LCI(CE) car was purchased from the OP-2 on 15.2.2010 for a sum of Rs. 25,20,470/- for exclusive use of Proprietor of the Firm M/s Tirupati Balaji Overseas, Sh. Alok Gupta. At the time of purchase, the complainant was assured that it was of excellent quality and was free from all defects as before marketing this car undergoes thorough and stringent tests of quality and road worthiness. But these assurances proved to be hollow and false. Hardly a week after delivery, it started given numerous troubles. The matter was immediately reported to OP-2, Dealer of the Car, who kept on making adjustments. The complainant was made to run to the workshop of the Respondent-2 time and again for getting the car roadworthy and trouble free but the OP-2 kept on rectifying and adjusting on the ground that a new car needs adjustment. But the rectifications and adjustments were not noted in any Job Card. The taillight and hydraulic lock were found defective though car was never driven in deep water. Sh. Alok Gupta, the owner of the car is a non-alcoholic and strict non-vegetarian. He is used to keeping luxury cars since last 30 years. He is also habitual of self-drive.
However, in order to escape from the liabilities, OPs cleverly devise escape routes and put the blame on the complainant making false allegations that the vehicle was driven in deep water against the instructions given in the Owners Manual and advise given to the complainant at the time of purchase.
16. It was vehemently argued that from Feb., 2010 to September 2010, the complainant has not enjoyed smooth and trouble free ride of the car. It is note worthy that during this period car barely ran for about 1500 Kms. So much so that the complainant became fed up with the frequent troubles and occasional embarrassments. He, therefore, ultimately sent back the car to OP-2 on 6.10.10. After thorough examination, OP-2 informed the complainant that the car was shaving manufacturing defects and that they will replace the same with a new one of the same model. Having no other option, complainant agreed to this offer. However, after few days, OP-2 retracted with his earlier stand and said that Company has refused to replace the car. Demand of Rs. 2-3 Lacs were demanded for dismantling and repair.
The complainant flatly refused to give his concurrence as the car was within the warranty of 3 years. The delivery of defective car to the complainant and refusal towards the problem during the warranty period by itself proves deficiency of service on the part of the OPs. The demand of Rs. 2-3 Lacs for dismantling and repair reveals unfair trade practice adopted by the OPs in their trade.
The car is, therefore, still lying in the workshop of the OP-2.
17. It was further argued that the car purchased was not for any commercial use but was need for the personal use of the complainant, for attending high Social Parties and going to Clubs. The car was not purchased for carrying goods or for being used commercially.
18. Ld. Counsel also argued that the car in question suffered from imperfection or short coming in the quality, quantity, potency, purity or standard as defined under Section 2(1)(f) of the Consumer Protection Act 1986. Under the circumstances, two noticed dated 30.10.10 and 29.11.2010 were sent to the OPs, which were duly served (Ex.-CW-1/1(Colly) and Ex-CW-1/5). Reply by OP-2 is Ex-CW-1/2. Despite of this, OPs neither settled the claim nor are ready to refund the price of the car with interest as demanded. Thus, the conduct of the OPs tantamount to deficiency of service.
19. It was argued that the complainant who owns another concern M/s Lakshminarayan Overseas & Trading was compelled to purchase another high quality car of Mercedes CGI Elegance for his personal use. Documents of purchase of new car for a sum of Rs. 26 Lacs are Ex-CW-1/4. The OPs are, therefore, liable to refund Rs. 25,20,470/- price of the BMW car with interest @ 18% p.a. together with adequate compensation and litigation expenses.
20. Arguments advanced on behalf of the OP-1 & 2 were identical. However, there were differences with respect to their liabilities under the Law. It was argued by the OPs that a BMW CKD 320D car was purchased by the complainant from the OP-2 on 15.2.2010. This car was deported to the workshop of the OP-2 for the first time on Sept 4, 2010 for replacement of the tail light, approximately after six months from the date of purchase. There was no complaint during the period from 15.2.2010 to 3.9.2010. The car was again towed to workshop of Respondent-2 on 6.10.10 with the complaint of noise from the engine. The car was then examined by the engineers of the OP-2. It was found that the engine of the car suffered mechanical defect from hydrostatic locking due to ingestion of water through the engine air intake system. No manufacturing defect was found in the car. Copies of the Job Card, check list and certain photographs of the engine taken at the time of checkup have been filed supported by an affidavit by way of evidence as Ex-R-1/1 and Ex-R-1/2. Immediately on 7.10.2010, complainant was informed by e-mail about the findings that the vehicle had passed through waterlogged are and water entered inside the engine. OP-2 also sent photographs of the engine taken by the time of check up to the complainant with the aforesaid e-mail. Through this e-mail, OP-2 sought approval of the complainant to dismantle the engine to repair the same. Copy of the e-mail dated 7.10.2010 is Ex-R-1/3. The complainant neither turned up to take back the car nor gave his consent for dismantling the engine. The car, therefore, still parked at the workshop of OP-2. It was also argued that the BMW cars are globally known for its high quality product and performance. These cars are sold worldwide through authorized dealers under a dealership agreement on principal to principal basis. The manufacturer provides warranty for certain period. Once the cars are sold by the BMW India to its authorized dealers, in this case Deutsche Motoren Pvt. Ltd. (OP-2), its contractual obligations are limited to supplying part under warranty.
Customers can approach the respective dealer in case of any complaint. It was emphasized that the warranty provided with the car is given only for rectification of the manufacturing defects, if any, in the car and not for replacement of the car. The instant case is USER RELATED DAMAGE and not a manufacturing defect, which is not covered under the terms and conditions of the warranty. The allegation of manufacturing defect in this case is baseless as the car was brought to the workshop only once for the replacement of the taillight on 4.9.2010 and another for the problem of hydrostatic lock on 6.10.2010. As maintained earlier, there was not any complaint from 15.2.2010 to 3.9.2010.
21. Since the water entered into the engine of the car, it got damaged and suffered hydrostatic lock because water entered inside the engine through the air intake system. Photographs (EX-R-1/2) show water inside the air cleaner of the car. This proves that the car had been through deep waterlogged area. The height of stagnant water level or the bow wave of water crossed the level of the Air inlet Duct causing the sucking of water inside the engine through air cleaner.
The problem of hydrostatic lock occurs when the car is driven through water logged conditions, either when the water is above the level of the air intake system or the cars speed is excessive creating a tall bow wave due to this reason when the car approached a pool of water, it is required to be slowed down and move cautiously. The Owners Manual which is given to every purchaser at the time of delivery of the car to guide them regarding operation of the car.
Precautions are to be taken while driving the car in water. It prescribes the car to be driven in water not more than 30 cm deep water and at a speed not more than 5-7 Km/hr i.e., the walking speed. The instructions given in the owners manual are to be strictly followed while driving the car failing which BMW India is not liable for any consequential damage and the warrantee will not apply in such cases. This car was certainly driven in breach of the instructions in the owners manual, therefore, the engine of the car suffered damage. The exact damage caused to the vehicle and its exact cost of repair can only be ascertained after dismantling the car. Since this is not covered under the terms of warranty, therefore, there is no question of replacement of the car or even repair and removing the defect of the car free of cost under the warrantee. It was also argued on behalf of OP-2 that allegations of adjustment by the complainant are misleading and false. It is mandatory requirement by OP-1 that no problem or defect in the car of any nature will be attended without for opening the Job Card and knowing the problem therein. It was also argued that the complainants allegation against OP-2 that he informed him about the manufacturing defect in the car was absolutely false. It was also false to allege that after few days of promising the replacement, OP-2 retracted informing the complainant that OP-1 has refused to replace the disputed car with a new one. As again this, OP-2 after thorough checked up on 7.10.2010 categorically informed the complainant that the car had passed through water logged are and the water entered inside the engine. Thus, there was neither manufacturing defect nor any deficiency of service on the part of the OPs nor they undertook any unfair trade practice. Ld. Counsel for the OPs emphasized that the allegations of manufacturing defect cannot be decided in the absence of expert opinion (automobile engineer). Section 13(C) of the Consumer protection Act, mandates proper analysis from a technically competent institution/organisation as was held in the following cases:
(i) Swaraj Mazda Ltd.
Vs. P.K. Chakkappore & Anr.
(Para 5) II (2005) CPJ 72 (NC)
(ii) Ajitha Chit Funds (P) Ltd. Vs. Tata Engineering & Locomotive Co. Ltd. & Anr. (Para 3) I (2007) CPJ 204 (NC)
(iii) Sushila Automobiles Pvt. Ltd. Vs. Dr. Birendra Narain Prasad & Ors (Para 6)
22. The burden of proof lies on the person who would benefit from taking the pleas of deficiency in service as was held in:
(i) Shri Vithalbhai Valajibhai & Anr Vs. Patil Nanjibhai Khodabhai Kayad (Para 5 & 11) (1993) 1 CTJ 599 (SCDRC)
(ii) Ishwar Rawat Vs. Haryana Urban Development Authority & Ors.
(Para 5 & 11) III (2008) CPJ 351 (NC)
23. Since the complainant has failed to file any expert opinion or adduced any other evidence to prove manufacturing defect, the complaint was liable to be dismissed.
24. OPs also relied upon the rulings:
(i) Sukhvinder Singh Vs. Classic Automobile & Anr. I(2013) CPJ 47 (NC)
(ii) C.N. Anantharam Vs. Fiat India Ltd. & Ors. Special Leave Petition (C) Nos. 21178-21180 of 2009 decided on 24.11.2010.
25. Apart from hearing arguments of the respective counsels, we have carefully gone through the record, the written arguments and the case laws referred. It is not disputed that the complainant purchased BMW CKD 320D car from OP-2 on 15.2.2010 for a sum of Rs. 25,20,470/-.
The OP-1 was its manufacturer. It is the case of the OPs that BMW is a high quality/high performance luxury car, which undergoes stringent tests and checkups before they are marketed throughout the world by appointed dealers under agreement. When the vehicle is received by the dealer for sale from the manufacturer, it is again thoroughly checked up and inspected, which is termed as PRE-DELIVERY INSPECTION. Once the vehicle is found road-worthy, only then it is offered for sale. This car was purchased by the complainant on 15.2.2010.
Since then till 4.9.2010, no problem of any kind was reported by the complainant. The vehicle was for the first time brought to the workshop of OP-2 on 4.9.2010 for replace of taillight. Thereafter, it was again brought to the workshop of the OP-2 on 6.10.2010 with a complaint of noise in the engine, which is also entered in the Job Card.
It is also entered in the Job Card that the car in question was towed to the workshop of the OP-2. The car according to the OPs was thoroughly checked and the complainant was duly informed through e-mail about the correct status of the vehicle. It was made clear to the complainant that the vehicle in question has been driven through heavily water logged area and that the water had entered inside the engine of the vehicle. Certain photographs of the engine were taken, which clearly show the presence of water, which created the hydrostatic lock problem in the vehicle causing damage to the engine. It was made clear that the vehicle had been driven against the instructions contained in the Manual Book and also the instructions and advice given to the buyer at the time of purchase. It was also made clear that this vehicle shall be driven through water only to maximum depth of 30 cm. (Aprrox. 1 foot) and not faster than the walking speed, otherwise the engines electrical system and gear box may be damaged. In this case, the damage caused to the engine was a user related damage, it is not covered under the warranty. It was not the case of manufacturing defect and therefore it was not covered under the terms of warranty. Under the circumstances, there was no question of any replacement of the car.
Also it was a case of repairing or rectifying the defects free of cost. As against this, the complainants allegations were that hardly a week after the purchase of the car, numerous problems occurred in the car. The dealer was immediately informed about the problems only made adjustments on the ground that it was a new car, which needs adjustments. No entry was made in the Job Card. According to the complainant between 15.2.2010 to 6.10.2010, he was fed up with the numerous problems occurring one after another in the car to the extent of embarrassment before friends and acquaintances. That complainant though spent a handsome amount of Rs. 25,20,470/- on this luxury car, he was not able to enjoy trouble free ride during this period of about six months. During this period, the car hardly run about 1500 Kms, which by itself goes to show that the car was not road-worthy and trouble free, otherwise it could have been driven more than 10,000 Kms., during this period. It was denied that the car was driven through deep water during rainy season or was taken to deep stagnant water causing damage to engine. It was asserted that Sh. Alok Gupta was a person of high status and was used to use luxury cars since last 30 years.
The car was driven with all precautions keeping in view the instructions contained in Owners Manual. The complainants contention was that in order to avoid liability, the OPs cleverly manufactured reasons/defects outside the warranty condition. It was also argued that the OP-2 after thorough checkup of the car has told the complainant that there were certain manufacturing defects in the car and he will try to replace it. Later on, he regretted on the ground that the car did not suffer from manufacturing defects and that the damage to the engine of the car was user-related damage.
Apart from hydrostatic lock, taillight defect, there were numerous other defects.
26. At this juncture, it is important to note that the bone of contention between the complainant and the OPs was whether the BMW car in question had any manufacturing defect or not. The complainant maintained that due to manufacturing defect, the purchaser of the luxury car could not enjoy the smooth and trouble free ride of the car during the period from 15.2.2010 to 6.10.2010 (Approx. six months). He also maintained that since the numerous problems were reported to the dealer who after thorough check up and testing admitted that the car suffered from manufacturing defects and need to be replaced but later on he changed his position and informed the complainant that manufacturer has refused to give any replacement of the car. He further informed through e-mail that due to user related damage, as discussed earlier, the engine of the car suffered damage. The vehicle was used against the instructions given in owners manual. Since the user related damage was not covered under the warranty, therefore, even cost free repair was not possible what to speak for replacement of the car.
27. It is a fact that the complainant has not filed any expert opinion to prove the manufacturing defect. In a recent case of Sukhvinder Singh Vs. Classic Automobile & Anr. I (2013) CPJ 47 (NC), Honble National Commission has held that report of expert was essential or some other evidence showing manufacturing defect should have been adduced.
Mere fact that vehicle was taken to service station for one or two times does not ipso facto prove manufacturing defect. And onus was on the complainant to prove his case by an expert opinion or some kind of reliable evidence, mere allegation is not enough. The claim of the complainant that the dealer admitted manufacturing defect and promised to replace the car by a new one has been totally denied by the dealer (OP-2). But the facts remained that on 6.10.2010, the car was brought to the workshop of OP-2 in a towed condition. Before this, this car was brought to the workshop of the OP-2 for rectification or the replacement of taillight. The complainant/owner has forcefully alleged that during the approx. period of six months (15.2.2010 to 6.10.2010), the complainant had not been able to use costly car free from troubles. Its road-worthy-ness was highly doubtful because of the numerous problems that ware faced by the complainant. Sometimes complainant had to suffer embarrassment because of the fact that the car was unmercantlable. During this period of six months, this defective car could be used only for about 1500 kms, which by itself tells the true story. The circumstances do not lie. Had it been free from defects and roadworthy, it must have covered much much high mileage.
28. It is also undisputed that the car was within the warranty period. It was a costly luxury car and the complainant had spent approx. 26 Lacs of rupees, out of which 20 Lacs were bought from HDFC Bank as loan and its premium were being paid. Under the circumstances, if the car was towed to the workshop of the dealer, it was his duty to attend the problem free of cost and to make it road-worthy. The demand of a sum of Rs. 2-3 Lacs for its dismantling and repair was unjustified and amounted to deficiency of service on the part of OPs. It also amounted to adopting unfair trade practice by the OPs. We are, therefore, broadly in agreement that there was lack of expert opinion or any other reliable evidence to convincingly prove the manufacturing defect in the vehicle. Nevertheless we are of the opinion that by demanding a sum of Rs. 2-3 Lacs for dismantling and refusing to repair the car free of cost amounts to deficiency of service. It also proved that the OPs were adopting unfair trade practice. OP-1 was the manufacturer and the OP-2, its dealer.
Therefore, OP-2 was legal agent of OP-1.
Under the circumstances, both OP-1 & OP-2 were jointly and severely responsible. At this juncture, it has also to be remembered that Consumer Courts are not expected to go in technicality of civil or criminal jurisprudence. Evidence Act or Civil Procedure Code are not applicable to proceedings before Consumer Courts. Disputes are to be decided on the yardstick of reasonableness and probability. Principles of Natural Justice do apply in full force.
29. In view of these facts, circumstances and legal position, we hold that the complainant had not been able to prove any manufacturing defect, all the same, the dealer and the manufacturer are directed to remove the defects in the engine of the vehicle free of cost and in case it was not possible to remove the defects, the engine of the vehicle may be replaced by new one of the same make and model and thereafter deliver the vehicle to the complainant in the presence of an Independent Technical Expert mutually agreed upon by the complainant and the OPs. The expert shall certify that the engine was free from all defects, which shall be final for all purposes. In case, there was no agreement between the parties for Independent Technical Expert, any of the party may apply for appointment of Independent Technical Expert.
This should be done within a period of six months from the date of receipt of the copy of the judgment. OPs shall provide warranty of one year from the date of delivery.
ORDER The complaint is decided accordingly.
30. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
( S.A. SIDDIQUI) PRESIDING MEMBER (S.C. JAIN) MEMBER rn 14-03-2013 C-358/10 Present: Sh. Ashish Kapoor, Counsel for the Complainant.
Sh. Rajesh Roshan & Ms. Rakshika Kaul, Advocates for OP-1.
Sh. Puneet Popli, Counsel for the OP-2.
Sh. Vikas Arora & Mohit, Advocates for the OP-3.
Arguments heard. Order Reserved.
(S.A. SIDDIQUI) MEMBER (JUDICIAL) (S.C. JAIN) MEMBER rn