State Consumer Disputes Redressal Commission
Ashwani Kumar vs Ford India Pvt. Ltd. on 14 May, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1763 of 2009
Date of institution : 15.12.2009
Date of decision : 14.05.2013
Ashwani Kumar aged 39 years son of Shri Ram Arora, R/o 26, Pawitar
Enclave, Vikas Colony, Patiala.
.......Appellant- Complainant
Versus
1. Ford India Pvt. Ltd., Manufacturer of Ford Fiesta Car, Regd.
Office Force India, S.P. Kokila Post, Post Box No.1 Maraimalai
Nagar, District Chengalpattu, Tamil Nadu through its Managing
Director.
2. M/s A.B. Motors (P) Ltd., Opposite Excise Office, Bhupindera
Road, Patiala through its proprietor.
3. M/s Bhagat Ford, C-16-17, Focal Point, Rajpura Bye Pass,
Patiala through its proprietor.
4. M/s A.B. Motors (P) Ltd., 658, Industrial Area (A), Sherpur Bye
Pass, Ludhiana through its proprietor.
5. ICICI Lombard General Insurance Co. Ltd., Chotti Baradari,
SCO-11, First Floor Branch, Patiala through its Manager.
......Respondents- Complainants
First Appeal against the order dated
21.05.2009 of the District Consumer
Disputes Redressal Forum, Patiala.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Present:-
For the appellant : Shri Animesh Sharma, Advocate. For respondents No.1-3 : Ex parte. For respondent No.4 : None.
For respondent No.5 : Shri Sandeep Suri, Advocate.First Appeal No.1763 of 2009. 2
JUSTICE GURDEV SINGH, PRESIDENT :
Feeling aggrieved by the order dated 21.5.2009 passed by District Consumer Disputes Redressal Forum, Patiala (in short "District Forum"), vide which the complaint filed by the appellant/complainant, Ashwani Kumar, for issuance of a direction to the respondents/opposite parties either to replace the car with a new car free from all the defects with fresh warranty period or to pay Rs.7,64,132/-, being the total cost of the car, taxes and insurance premium, along with the interest and to pay a sum of Rs.1,00,000/- for business losses suffered by him and Rs.50,000/- for mental agony, harassment and costs, was dismissed, he has come up with the present appeal.
2. As per his averments, made in the complaint, he purchased a new car make Ford Fiesta, detailed in para no.2 of the complaint, from opposite party no.2, who was the authorized dealer of opposite party No.1, on 4.4.2006 for Rs.7,21,000/- and paid Rs.3500/- for the accessories and the taxes etc. and Rs.24,902/- as insurance premium and Rs.14,730/- as registration fee for registration No.PB-11-AD- 7046. At the time of sale, opposite party No.2 gave a warranty of 12 months of free service. He used the car as per the directions of that party as well as the instructions as given in the booklet/owner's manual. On 24.6.2006 when this car had already run about 1426 kilometers, he realized that it suffered from inherent problems comprising of starting trouble and the starting of the engine with First Appeal No.1763 of 2009. 3 unwanted noise giving intensive smoke from the exhaust. Immediately he gave information to opposite party No.2 and lodged a complaint. Opposite party No.3 deputed a mechanic, who checked the car and assured to come back with their engineers but thereafter no one came to him. In the evening he took the car to the workshop of opposite party No.2 by towing the same and told that party that there appears to be some major defect. On 26.6.2006 a casual checking was done by the Service Engineer and he was told that it would take some time to rectify the defect, which had developed in the car and the car was kept in the workshop. He was assured by the Manager that by the time he returns the car would be ready after rectification of the defects. On 26.6.2006 in the evening he went to take the delivery of the car and was stunned to see that the engine of the car had been opened and he protested regarding the opening of the engine without his consent. On his protest and in order to take the revenge, opposite party No.3 refused to rectify/remove the defect on the pretext that flood water had entered in the air filter and got mixed up with the engine oil and blamed him for running the car in flood water. He explained that there was no heavy rains during that year and he used the car as per the instructions and mostly in Patiala and there was no question of the flood water entering the engine as there was no flood in the area. When he approached the opposite parties No.1 to 4 personally for looking into the matter and solving his problem, they showed their inability and suggested him to file the claim with opposite party No.5 First Appeal No.1763 of 2009. 4 with whom the car had been insured. He was constrained to lodge the claim with opposite party No.5, who deputed the surveyor/engineer but refused to pay the claim, vide letter dated 24.8.2006 and obtained his signatures on some blank papers and forms. He requested opposite parties No.1 to 4 to replace the car but they failed to do so. This act on their part amounts to unfair trade practice and deficiency in service.
3. Opposite party No.1 filed the written reply. It averred therein that the warranty period of 12 months was subject to the terms and conditions as contained in the owner's manual. On 24.6.2006 information was received from the side of the complainant that his vehicle had broken down upon which a technician was sent to the site by opposite party No.2, who found that the car was struck in water, which was above the knee level and they had to push the car out of the water and towed the same to the workshop. It was found that the car had been driven through water and, therefore, could not start. Consequently, to assess the damage, the air filter and cylinder head cap were opened and it was found that there was water in the air filter and the engine compartment. 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 First Appeal No.1763 of 2009. 5 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 mentioned therein that the car be never driven through the water even at great risk and it is to be insured that engine be not stalled 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. The warranty is as per the terms and conditions of the owner's manual. In the present case, the loss had been occasioned due to mechanical failure caused on account of running of the car through water and there was not any manufacturing defect. As a manufacturer it is not liable as the complainant violated the instructions contained in the owner's manual. He himself was negligent by driving the car against the conditions mentioned in that owner's manual.
4. Opposite parties NO.2 to 4 filed a joint written reply in which they have taken up similar contentions as have been taken by opposite party No.1 in its reply. In fact the same is the copy of that reply itself.
5. In the written reply filed by opposite party No.5 it has been averred that at the time the claim was lodged by the complainant, it was clearly disclosed to him that the same was not payable as the loss to the car is consequential or manufacturing defect which was not covered under the policy. It has no liability to pay the claim and that fact was made very clear in the letter dated 24.8.2006 itself. None of its officials obtained the signatures of the complainant on blank forms. First Appeal No.1763 of 2009. 6 The complainant has concealed the true and material facts and has not come to the District Forum with clean hands. The complaint itself is not maintainable. There is no deficiency in service on its part.
6. The parties produced their evidence in support of their respective averments before the District Forum, which after going through the same and hearing the learned counsel on their behalf dismissed the complaint, as aforesaid.
7. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
8. It was submitted by the learned counsel for the complainant that the District Forum, in para no.16 of the order, recorded a specific finding that opposite party No.5 (Insurance Company) was not justified in repudiating the claim of the complainant and even then did not issue any direction against that opposite party by making an observation that no relief has been claimed against that party and that the relief has been claimed only against the other parties, who were not responsible for the damage caused to the engine of the car and the same was not a manufacturing defect. From the evidence produced by the complainant, it stands proved that there was a manufacturing defect in the car. The car was driven through deep water and had developed the defect and subsequently it was found that the same was manufacturing defect. There were no such instructions given by the manufacturer or the dealer that the car was not to be driven through water. What is the use of the car, if the same cannot be driven through First Appeal No.1763 of 2009. 7 water? By referring to the report of Chander Shekhar, Surveyor attached with the grounds of appeal as Annexure P-6, he argued that there was a mechanical defect in the car as the air suction through air cleaner had not been provided therein. It was wrongly concluded by the District Forum that there was no manufacturing defect in the car. The claim of the complainant was repudiated, vide repudiation letter dated 24.8.2006 on the ground that loss to the car was consequential loss which was not covered under the insurance policy and that the claim so submitted by him was inadmissible. When the engine of the car seized on account of driving of the same through the water, it cannot be said that it was only a consequential loss not covered under the policy. Comprehensive insurance policy was obtained and all the losses were covered by it. Therefore, the Insurance Company is liable to pay the sum assured and direction is to be issued to it accordingly.
9. On the other hand, it was submitted by learned counsel for opposite party No.5 (Insurance Company) that in the course of advancing the arguments the complainant has taken a somersault. It is not his case in the complaint that the car developed the defect on account of driving of the same through water. The case of the complainant, as pleaded in the complaint and as projected in the evidence produced by him, is that the car suffered from inherent manufacturing defect as there was starting trouble, engine was making unwanted sound and intensive smoke was coming out of the exhaust. He has also taken up specific plea that opposite party No.3 had refused First Appeal No.1763 of 2009. 8 to rectify the defect in the car on the ground that the flood water had entered the filter and mixed up with the engine oil as a result of running of the car through flood water and he explained that there was no heavy rain in that year and he never used the car in that manner. In view of that specific case in the complaint, he cannot aver that the car had developed the defect on account of the passing of the same through deep water. The District Forum did not commit any error by dismissing the complaint against opposite party No.5 on the ground that no relief was claimed against it. The complainant has based his claim on the ground that there was inherent manufacturing defect and had prayed for the replacement of the car by other opposite parties and in the alternative, had asked for the refund of the total amount, including the insurance premium. When he is asking for the refund of the insurance premium itself, how does it lie in his mouth to allege that the findings recorded by the District Forum dismissing the complaint against opposite party No.5 is not correct. There is no ground for upsetting that finding.
10. Whatever has been submitted before us by the learned counsel for the complainant runs counter to the averments made by the complainant in the complaint. It is very much clear from his complaint that he never came up with the plea that the car developed defect after it was passed through deep/flood water and rather he denied that fact by pleading that opposite party no.3 refused to rectify the defect on the false pretext that the flood water had entered the car. First Appeal No.1763 of 2009. 9 Faced with that situation, learned counsel for the complainant tried to argue that the water had entered the engine of the car on account of the manufacturing defect therein and in order to substantiate that argument he referred to the report of the surveyor; named, Chander Shekhar, whose affidavit and report were proved before the District Forum as Ex.C-4 and Ex.C-5. It is very much clear from the observations/findings recorded in the report that the vehicle was found damaged for its engine assembly due to hydrostatic locking, which was lying over there in a bad and unacceptable physical and functional condition. It is mentioned in his report that a wrong statement was made by the repairer because inundated rainy water intruded into the engine assembly not due to deep water level upto knee or two feet level but for about one foot, thus, which resulted the hydrostatic locking of the engine. When it is the case of the complainant himself that he had not driven the car through water and there is no evidence about the deepness of the water, then how can this surveyor mention in his report about the level of the water through which the car was driven resulting into the seizing of the car itself. No doubt, he mentioned in his report that in his opinion and technical notification the Ford Fiesta had been equipped with the air-suction through the air cleaner which had been prone to induct the outside water contents even during normal and unexpected circumstances of wet-road condition. But that observation was made by him generally about the Ford Fiesta cars and not about the car in question itself. This report of First Appeal No.1763 of 2009. 10 the surveyor itself demolishes the case of the complainant regarding the manufacturing defect in the car as he himself came up with the plea that the defects noticed by him were (1) starting trouble, (2) making of unwanted noise by the engine at the time of starting of the engine and (3) the emission of the intensive smoke through the exhaust. It is very much clear from the contents of the complaint that the engine had already developed a defect when the same was removed to the workshop of opposite party No.3 as it is mentioned therein that the car was taken to that workshop by towing. Whatever damage was caused to the car was caused by the complainant himself and on the basis of the evidence produced on the record, through which we have gone very minutely, it cannot be said that there was any manufacturing defect in the car.
11. The claim made by the complainant to opposite party No.5 was repudiated on the ground that the loss to the car was a consequential loss which was not covered under the policy. If the complainant relies upon the facts stated in the complaint, then opposite party No.5 cannot be made liable as, according to him, there was inherent manufacturing defects in the car, which resulted in the damage to the engine. In case the story developed by him during the course of arguments before us is to be taken into consideration, then opposite party No.5 cannot be made liable as it was the consequential loss and the claim was correctly repudiated on that ground. It was rightly submitted by the learned counsel for opposite party No.5, during the course of First Appeal No.1763 of 2009. 11 arguments, that no relief can be granted against opposite party No.5 as the complainant never asked for any direction against that opposite party in the complaint. We do agree with him. The main direction, which the complainant sought for, was to direct the opposite parties to replace the car with a new car free of defects with fresh warranty period. The same was not to be done by opposite party No.5 and that was a direction sought against the other opposite parties. In the alternative, he prayed for issuance of directions to pay a sum of Rs.7,64,132/-; being total cost of the car, taxes, insurance premium along with interest. If he had been asking for the repayment of the insurance premium, then it means that he wanted to repudiate the insurance contact itself, then how he can allege that he had been seeking direction against opposite party No.5 also? A correct finding to that effect was recorded by the District Forum and the same is hereby upheld. We do not find any merit in this appeal and the same is hereby dismissed. However, no order is made as to costs.
12. The arguments in this case were heard on 6.5.2013 and the order was reserved. Now, the order be communicated to the parties.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH)
PRESIDENT
May 14, 2013 (BALDEV SINGH SEKHON)
Bansal MEMBER
First Appeal No.1763 of 2009. 12