State Consumer Disputes Redressal Commission
Sai Service Station Ltd. & Maruti Udyog ... vs M/S.Kores (India) Ltd. & Ors. on 6 March, 2010
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI FIRST APPEAL NO. 938 OF 2009 Date of filing : 10/07/2009 IN CONSUMER COMPLAINT NO. 18 OF 2008 Date of order : 06/03/2010 DISTRICT CONSUMER FORUM : CENTRAL MUMBAI Sai Service Station Ltd. Phoenix Mill Compound, Gandhi Nagar, D.S. Marg, Lower Parel, Mumbai 400 013. Appellant/org. O.P.No.1. V/s. 1. M/s.Kores (India) Ltd. Kores House, Plot No.10, Off. Dr.E. Moses Road, Worli, Mumbai 400 018. Respondent/org. complainant 2. Maruti Udyog Ltd. 11th floor, Jeevan Prakash, 22, Kasturba Gandhi Marg, New Delhi 110 001. 3. The New India Assurance Co. Ltd. New India Assurance Bldg., 87, Mahatma Gandhi Road, Fort, Mumbai 400 001. Respondents/org. O.P.Nos.2&3 AND FIRST APPEAL NO. 956 OF 2009 Date of filing : 10/07/2009 IN CONSUMER COMPLAINT NO. 18 OF 2008 Date of order : 06/03/2010 DISTRICT CONSUMER FORUM : CENTRAL MUMBAI Maruti Udyog Ltd. 11th floor, Jeevan Prakash, 22, Kasturba Gandhi Marg, New Delhi 110 001. Appellant/org. O.P.No.2. V/s. 1. M/s.Kores (India) Ltd. Kores House, Plot No.10, Off. Dr.E. Moses Road, Worli, Mumbai 400 018. Respondent/org. complainant 2. Sai Service Station Ltd. Phoenix Mill Compound, Gandhi Nagar, D.S. Marg, Lower Parel, Mumbai 400 013. 3. The New India Assurance Co. Ltd. New India Assurance Bldg., 87, Mahatma Gandhi Road, Fort, Mumbai 400 001. Respondents/org. O.P.Nos.1&3 Quorum : Shri P.N. Kashalkar, Honble Presiding Judicial Member
Mrs.S.P. Lale, Honble Member Appearance : Mrs.Savita Suryawanshi, Advocate for appellant in A-938/2009.
Mr.P.P. Tipnis, Advocate for appellant in A-956/2009.
Mr.Mohan Kumar, Advocate for respondent No.1 in both appeals.
-: ORAL ORDER :-
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member Being aggrieved by the judgement and award passed by District Consumer Forum Central Mumbai in consumer complaint No.18/2008 decided on 27/02/2009 whereby the Forum below allowed the complaint of Mrs.Kores (India) Ltd. and directed O.P.Nos.1&2 Sai Service Station Ltd. and Maruti Udyog Ltd. respectively to pay to the complainant jointly and severally Rs.1,14,317/- with interest thereon @ 9% p.a. from 28/02/2006 and also directed to pay to the complainant Rs.5,000/- towards mental expenses and Rs.5,000/- towards cost and was pleased to dismiss the complaint as against Insurance Company, the org. O.P.No.1/Sai Service Station Ltd. has filed Appeal No.938/2009 and org. O.P.No.2/Maruti Udyog Ltd. has filed Appeal No.956/2009 challenging said award.
The facts to the extent material may be stated as under :-
M/s.Kores (India) Ltd. is a public limited Company manufacturing carbon papers, stationery, etc. It had purchased Maruti Car Esteem from O.P.No.1/Dealer which was manufactured by O.P.No.2/Maruti Udyog Ltd. Complainant/Company had purchased said car for Rs.4,88,829/- and had also paid one time RTO Tax of Rs.61,484/- levied by Govt. of Maharashtra and it was given delivery of the car on 15/10/2004. According to the complainant/Company said car was given at the disposal of its official Shri Dutt for using it for official purpose. On 28/02/2006 Shri Dutt returning home from office and parked said vehicle at about 10.30 p.m. at the usual parking place and within 20 minutes car caught fire. There was continuous noise of horn coming from the car. Therefore, complainants officer went at the spot and before he could do anything, car was totally burnt in fire and only engine block and petrol tank could be saved with the help of fire brigade personnel and fire was extinguished. The Fire brigade gave report of the fire. According to the complainant till date of incident, car had run 17800 Kms. and its servicing was all the while done through O.P.No.1. Police were also called. They recorded panchanama. This incident allegedly occurred due to short-circuit as per Police and Fire Brigade investigation. On the very next day, matter was reported to the Insurance Company by complainant/Company. Insurance claim was preferred with Insurance Company/org. O.P.No.3. After receipt of Survey Report, Insurance Company allowed the claim of Rs.2,99,500/- taking into account the salvage amount of Rs.70,000/-. Thus, according to the complainant, it got amount of Rs.3,69,500/- towards fire claim from the Insurance Company, but complainant pleaded that it had purchased car for Rs.4,88,829/- and had also paid one time RTO tax of Rs.61,484/- (to the Govt. of Maharashtra) and therefore, complainant/Company sustained loss of Rs.1,80,313/- for which complainant sent registered notice to all the O.Ps. At the time of incident, vehicle was under warranty and it is the case of the complainant/Company that there was defective electric supply in the Maruti Car and that is why there was short-circuit and in the short-circuit fire was caught and car was totally burnt. Complainant/Company also pleaded that O.P.No.1 collected from the complainant Rs.9,590/- towards extended warranty for the vehicle. Even that amount was not refunded to the complainant/Company and therefore, complainant filed consumer complaint and claimed amount of Rs.1,80,313/- towards refund of actual purchase price and Rs.50,000/- as compensation for mental distress and mental agony and Rs.20,000/- by way of cost of the proceeding.
O.P.No.1 filed written statement and pleaded that complainant/Company was in the manufacturing activity and therefore, it is commercial activity. They had purchased car in connection with their business. Therefore, complainant/Company cannot be said to be a consumer within meaning of Section 2(1)(d) of Consumer Protection Act, 1986. On this ground O.P.No.1 pleaded that complaint should be dismissed with cost. O.P.No.1 also pleaded that it was not guilty of deficiency in service. All the while car was brought for servicing and it had carried out servicing. The last servicing given to the complainants car was on 20/10/2005. Thereafter, for four months, car was run properly without any defects and all of a sudden on the date of incident, car caught fire and therefore, it pleaded that it was not guilty of deficiency in service and as such complaint should be dismissed with costs. O.P.No.1 also pleaded that in the said car Auto cap and central locking system was installed by the complainant through somebody else and that probably had interfered with electrical installation made by manufacturing company and because of intervention of third person while installing auto cap and central locking system, electrical circuit was disturbed and because of short-circuit car got burnt in fire. Therefore, it pleaded that complainant has committed breach of warranty and therefore, warranty stood cancelled. It also pleaded that there was no manufacturing defect because in the 16 months period car covered distance of 17800 Kms. It also pleaded that Insurance Company has already given insurance claim and it itself is not liable to refund RTO Tax which was collected by RTO on behalf of Govt. of Maharashtra. So, for refund of tax, it was not responsible. It therefore pleaded that complaint should be dismissed with costs.
O.P.No.2 also filed written statement and pleaded that complainant is a Company and it had purchased car for its commercial activities and therefore, complainant/Company cannot be said to be a consumer within meaning of Section 2(1)(d) of Consumer Protection Act, 1986. Maruti Udyog Ltd. further pleaded that since auto cap and central locking system was installed by the complainant through somebody else, car had some problem and ultimately, because of short-circuit car got burnt in fire. Maruti Udyog Ltd. pleaded that they were not guilty of deficiency in service. Moreover, they pleaded that O.P.No.1 purchased car from O.P.No.2 and O.P.No.1 sells car on principal to principal basis since there was dealership agreement between O.P.Nos.1&2 and therefore, they are not liable for any deficiency in service on the part of O.P.No.1. O.P.No.2 further pleaded that when car was taken in possession at the time of purchase of car, complainant/Company had inspected the car. O.P.No.1 also inspected the car and found it was road worthy and thereafter, it was sold to the complainant/Company. Complainant had also taken test drive to see whether car was in order. The Company pleaded that car had not caught fire because of short-circuit as alleged by the complainant/Company since complainant/Company had installed MG auto cap and central locking system from somebody else and not through their Authorised Dealer or Service Centre. The cars original electrical circuit was disturbed and therefore, there occurred short circuit and because of short-circuit, car got burnt totally in fire. There was no manufacturing defect of any kind in the car and as such manufacturing Company is not responsible for ultimate loss suffered by the complainant. Moreover Company pleaded that after purchase of car, car had covered distance of 17800 Kms. which clearly showed that car was not having any manufacturing defect.
O.P.No.3/Insurance Company also filed written statement in the complaint and pleaded that on total loss basis, claim of the complainant was allowed for Rs.2,99,500/- and complainant/Company also received Rs.70,000/- by way of salvage amount. Thus, complainant/Company was given Rs.3,69,500/- by way of full and final settlement of claim on total loss basis. They therefore pleaded that complaint should be dismissed as against the Insurance Company.
Upon hearing Advocate Mr.Mohan Kumar for the complainant, Ms.Savita Suryawanshi, Advocate for Sai Service Station Ltd./O.P.No.1 and Mr.Uttamchand, Advocate for Maruti Udyog Ltd./O.P.No.2 and after considering written statement filed by the parties, Forum below held that complainant/Company was consumer within meaning of Section 2(1)(d) of Consumer Protection Act, 1986 and consumer complaint as filed by it can be entertained. The Forum below also stated that according to the complainant in the electrical circuit of the car, there was manufacturing defect and therefore, car caught fire and was burnt totally in said fire. Insurance Companys Surveyor had inspected the car and Surveyor reported that incident took place because of short-circuit and on the basis of Survey report itself, Forum below held that because electric circuit was defective, short circuit took place and car got burnt in the fire. Learned District Consumer Forum also held that since there was extended warranty given by the O.P.No.1 to the complainant/Company by accepting Rs.9,590/- extra, O.P.Nos.1&2 were jointly and severally responsible in view of extended warranty. Forum below turned down the contention of O.P.Nos.1&2 that complainant/Company had committed breach of terms and conditions of warranty and therefore, they are not liable to pay damages to the complainant/Company. In totality of the circumstances, Forum below held that car was worth Rs.4,88,829/- and complainant had paid RTO Tax Rs.61,484/-. So, total amount of Rs.5,50,313/- was paid by the complainant/Company and because of accident, car was destroyed in fire and from O.P.No.3 complainant/Company received amount of Rs.3,69,500/- towards insurance claim. So, remaining amount of Rs.1,14,317/- was payable by O.P.Nos.1&2. O.P.Nos.1&2 were directed to pay amount of Rs.1,14,317/- plus interest @ 9% p.a. plus Rs.5,000/- towards mental agony and amount of Rs.5,000/- towards cost. But the complaint was dismissed as against O.P.No.3/Insurance Company. Aggrieved by the award, O.P.No.1/Sai Service Station Ltd. filed Appeal No.938/2009 and O.P.No.2/Maruti Udyog Ltd. filed Appeal No.956/2009.
We heard Mrs.Savita Suryawanshi, Advocate for appellant in A-938/2009, Mr.P.P. Tipnis, Advocate for appellant in A-956/2009 and Mr.Mohan Kumar, Advocate for respondent No.1 in both appeals.
We have already condoned the delay by passing separate order.
Upon hearing Learned Counsels for the parties, we are finding that there is substance of both appeals preferred by O.P.Nos.1&2 firstly because of complaint as filed by M/s.Kores India Pvt. Ltd. in the Forum below was not tenable in law for the simple reason that the car was not purchased by Mr.Dutt, but it was purchased by M/s.Kores India Ltd. A Company who is in manufacturing activities of various products for giving comforts to its officers. The complainant/Company had purchased car and it was placed for disposal of Mr.Dutt, its official. Basically, Company has purchased the car for commercial purpose and therefore, consumer complaint as filed by the complainant/Company was not tenable in law since complainant/Company is engaged in manufacturing or commercial activities and it is not falling in the ambit of Section 2(1)(d) of Consumer Protection Act, 1986 and on this ground alone these two appeals will have to be allowed.
Secondly, we are finding that the car in question was no doubt burnt in fire. There was accidental fire because of short-circuit as is the finding recorded by the Police Authority as well as by Surveyor of the Insurance Company. Fire Brigade was called and Fire Brigade officer has also given report to the effect that because of short-circuit, car might have caught fire. The insurance claim was preferred and the Insurance Company had appointed Surveyor. Surveyor inspected the car and Surveyor found that car was totally burnt and on the basis of total loss basis, Surveyor recommended payment of amount of Rs.2,99,500/- plus salvage amount of Rs.70,000/- to the complainant/Company. The complainant/Company itself received amount of Rs.3,69,500/-. When this is so, the Forum below rightly held that complaint as filed against the Insurance Company is liable to be dismissed and it accordingly dismissed the complaint as against the Insurance Company. But, question is when the insurance claim of the car in question was already allowed on total loss basis by the Insurance Company, where is the question of giving anything to the complainant/Company alleging deficiency in service on the part of O.P.No.1/Sai Service Station or on the part of O.P.No.2/Maruti Udyog Ltd., manufacturer of the car. Complainant cannot be permitted to make profit out of incident of car burnt in short-circuit (assuming that it had so burnt). Complainant/Company was reimbursed by the Insurance Company since the complainant/Company has taken insurance cover for the car from O.P.No.3/Insurance Company. Insurance claim was allowed to the maximum possible extent in favour of complainant/Company. If this is so, there was no question of giving further amount in terms of order passed by the District Consumer Forum. Forum below clearly erred in law in allowing rest of the claim particularly when there was no manufacturing defect. Car was purchased by the complainant/Company on 15/10/2004. Complainant car had run for about 16 months covering 17800 Kms.. If this is so, surely there was no manufacturing defect.
The complainant who allege manufacturing defect has to prove that there was manufacturing defect in the car supplied to him by O.P.No.1 and manufactured by O.P.No.2. There is virtually no evidence of expert adduced by the complainant/Company. It was duty of the respondent/complainant-Company to get the car inspected from expert from the field. So car should have been shown to some Automobile Engineer and his report should have been placed on record to prove that the car was having manufacturing defects on the date of incident. There is no evidence of any kind adduced in this behalf by respondent No.1/Company. The car had not stopped at any point of time during those 16 months when car was being used by Shri Dutt, official of the complainant/Company. The car was properly serviced by O.P.No.1/Sai Service Station Ltd. as per companys warranty manual. No defect of any kind was pointed out by the complainant that there was defective electric circuit in the car while taking car to Sai Service Station Ltd. for free servicing. When this is so, how could it be presumed that there was manufacturing defect in the car as alleged by the complainant/Company in its complaint filed in the Forum below. Making hue and cry about manufacturing defects is one thing but proving the same is very difficult job and complainant/Company failed to establish that there was manufacturing defect in the electrical installation of the car which ultimately was allegedly responsible for the car being burnt due to short-circuit. In fact, we know that sometimes because of rats entering into the car, they damage the electrical installation and ultimately, there can be short-circuit because of role played by such rats. In absence of any evidence adduced by complainant/respondent No.1/Company, Forum below should not have presumed that car was having manufacturing defect. Simply because after the incident, Fire Brigade or Police or Surveyor presumed that the car might have been caught fire because of short-circuit that would not prove that there was manufacturing defect in the car. Presumption of manufacturing defects is not available to any Consumer. It is for the consumer or complainant to establish the manufacturing defects in the vehicle. Said burden has not been discharged by the complainant/Company by adducing any evidence and therefore, on this ground also both these appeals will have to be allowed to quash and set aside the order passed by the District Consumer Forum granting compensation to the complainant/Company.
Thirdly, we are finding that the Forum below passed very strange order directing refund of Rs.61,484/- paid to R.T.O. towards road tax imposed by the Government. Amount of tax was collected by the Government and it has gone to the coffers of the Government and how can the Learned District Consumer Forum direct refund of tax amount by both these appellants. Road tax was collected as one time road tax covering period of 15 years by the Government of Maharashtra. If car has met with an accident of this nature and car has been burnt totally, it is for the complainant/Company to approach the Government of Maharashtra and to seek refund of road tax from the Government because of mishap suffered to the car of the complainant/Company. Instead of doing so, Forum below erroneously directed O.P.Nos.1&2 to refund road tax. In fact they had not collected or pocketed said tax. In totality of the circumstances, we are finding that the judgement and award passed by the District Consumer Forum is absolutely improper, unjust and Forum below committed grave error of law in allowing the complaint and directing refund of price to the complainant when in fact complainant had received full amount of compensation for the accidental burning of the car from the Insurance Company/O.P.No.3. In the circumstances, we are finding that the order passed by the District Consumer Forum is bad in law and by allowing these two appeals filed by Sai Service Station Ltd. and Maruti Udyog Ltd., the said judgement and award will have to be quashed and set aside. Hence, we pass the following order :-
-: ORDER :-1. Appeal No.938/2009
and Appeal No.956/2009 are allowed. The impugned judgement and award is quashed and set aside. The complaint stands dismissed.
2. However, we are directing Sai Service Station to refund amount of Rs.9,590/- to the complainant/Company which they have collected for extended warranty as extended warranty could not be given because during initial warranty the car has been burnt in fire.
3. Parties are directed to bear their own costs.
4. Copies of the order be furnished to the parties free of costs.
(S.P. Lale) (P.N. Kashalkar) Member Presiding Judicial Member