BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 27^TH DAY OF OCTOBER 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Order the Ops to refund the amount of Rs.31,00,000/- with interest at 18% p.a., from the date of payment.
2. Order the Ops to pay compensation of Rs.1,00,00,000/- for mental torture, mental strain, humiliation and harassment caused to the complainant.
3. Order Rs.1,00,000/- as costs,
4. Pass such other direction that this Hon’ble Commission deems fit to grant in the interest of justice and equity.

2. The case set up by the complainant in brief is as under:-

The complainant has purchased BMW car of model No.BMW XI 2.0D of black colour on 30.05.2011 for Rs.31,00,000/-, vide registration No.PY01 BJ 8102.  The complainant was regularly getting the service of the car done from the authorized dealer showroom of the OP1 i.e., OP2. He has maintained the car in good condition as he is first owner of the car.

3. It is the specific grievance of the complainant that on 28.11.2022 around 9 pm while he was driving the said car on the elevated electronic city flyover Bangalore along with his wife a passerby person told him that there is some smoke wafting from the car.  The complainant suddenly stopped the car and got down from the car and started running away from the car. After few minutes the front portion of the car caught hold of the fire and starting burning in flames. The entire car was burnt.
4. It is further grievance of the complainant that immediately on the next day he contacted the OP2 and they have asked for a written consent from the complainant to find out the root cause/defect in the car that caused the fire. This complainant has given written consent to the OP2 and the OP2 in turn intimated the complainant that they have shared the condition of the car and their findings with OP1 technical team on 09.08.2022. After multiple follow-ups this complainant has received email on 05.09.2022 by OP1 stating that the vehicle history exhibits poor maintenance record and as per the analysis the lead or cause of thermal incident cannot be determined and the same remains inconclusive.  
5. The complainant suffered utter shock after receiving such reply from OP1 as he was expecting to know the root cause of the incident.  It is also the contention taken by the complainant that he came to know about the report that in March 2022 the OP1 company has recalled more than a million cars in US citing an issue with its engine ventilation system that can cause it to catch fire.  According to US national highway traffic safety administration the cars are vulnerable to an electric short in their positive crankcase ventilation valve heater. That irregularity can over time lead to overheating and even cause a fire whether the car is parked or being driven.  The recall of the cars mostly included many 3 series, 5 series, 1 series, X1 series, X5 series, X3 series and Z4 vehicles produced between 2006 to 2013. Finally on 16.09.2022 the OP1 showed their incapacity to detect the defect and said that they cannot determine the root cause of the incident as the front portion of the car was fully burnt and no parts were able to identify.
6. It is further case of the complainant that the OP1 instead of detecting the defect in the engine has negligently stated that the root case of the incident cannot be determined. Hence there is deficiency of service on the part of the OP1 as they easily escape from their liability for which they are liable to replace with a new car or refund the amount of the car. The Ops have caused great loss and damage apart from mental tension, trauma and inconvenience and loss of value of money.  Hence complainant has sent legal notice to OP1 and the same was received by the OP1. They have issued a reply denying all the grievance of the complainant. Hence this complaint is filed.
7. In response to the notice, OPs appeared before this commission and files version. It is the case of the OP1 that the complaint is an abuse of process frivolous and vexatious as after using the vehicle for more than 11 years covering 268103 kms. The complainant has approached this commission for refund of the vehicle cost and compensation due to fire. There was no manufacturing defect in the vehicle. The actual reason which triggered fire could not be ascertain as the front portion engine, dash board, front suspension, under body, transmission, engine wiring harness, DDE, passenger compartment roof lining, front seat was completely burnt.  
8. It is the specific contention taken by the OP1 that the complainant has neglected the recommendation/guideline and not maintained properly.  The vehicle was last reported to BMW authorized service centre on 27.05.2019 at the mileage Rs.2,20,749/- for hydrostatic repair. However during the said visit the complainant did not allow the authorized dealer to carry out any of the recommended repairs and took back the vehicle without any repairs at all.  The engine damage due to hydrostatic damage(lock) has to be handled and repaired with care. These Ops are not aware as to how the said engine repairs were carried out on the vehicle.  Since the 27.05.2019 until the date of incident the vehicle has covered more than 47000 kms., without any service carried out on the vehicle at BMW authorized service centre.  This OP1 has impleaded only as an arm-twisting tactic and with a malafide intention to make wrongful gains.  
9. It is also the case of the OP1 that the complaint is not maintainable as there is no cause of action and there was no manufacturing defect in the vehicle nor there is any deficiency in service and unfair trade practice on the part of this OP1.
10. It is further case of the OP1 that the owners manual provided to the complainant at the time of purchase of the vehicle clearly mentioned that “if the vehicle is not maintained or improperly maintained this could result in serious damage to the vehicle.  It is also mentioned in the manual that engine oil that is not changed in timely fashion can cause increase engine wear and thus engine damage. There is a risk of damage to property. It is also recommended that the customer do not exceed the service intervals indicated in the vehicle.  Inspite of all these instructions and guidelines there were several engine oil lapses. By huge mileages on the part of the complainant and the complainant failed to properly maintain the vehicle.
11. The OP has also relied on the decisions of the Hon’ble NCDRC and Hon’ble Supreme Court. It is also the contention taken by the OP that the complainant vehicle did not have own damage coverage as on the date of incident.  This OP1 adopted fair business practices and there is no deficiency of service. The relief of refund of cost of the vehicle being made after the complainant used the vehicle for more than 11 years covering 268103 kms., and the relief of compensation of one crore claimed  by the complainant even after knowing fully well that he was improperly using the vehicle for the past 11 years is not entitled for the relief. Therefore OP1 prays for dismissal of the complaint.
12. The OP2 filed his version stating that the complaint is not maintainable and frivolous, baseless and liable to be rejected with exemplary cost. The complainant himself is solely responsible for the incident as he has not maintained the car as it was recovered and hence he cannot blame this OP for his negligence.  It is evident from the service history of the complainant there were several service lapses on the part of the complainant. He had not maintained his vehicle as per manufacturers guidelines and it is deliberately suppressed by the complainant.
13. It is further case of the OP2 that after the incident a request was made by the complainant to inspect the vehicle and to determine the cause of the incident.  On the basis of the details and the pictures shared by the complainant, this OP reviewed them and carried out their analysis.  The entire front portion was completely burnt. Hence they could not determine the cause for the fire incident and the same was duly informed to the complainant on 05.09.2022.  This OP has also informed the complainant that the said incident comes under the purview of insurance policy of the vehicle.  However the complainant’s vehicle did not have own damage coverage as on the date of incident.  In order to put a closure on the issue this OP had sent an email on 16.09.2022 explained the complainant in detail about the inspection carried out on the vehicle and the reason as to why it was not possible to determine the cause of the fire incident.  As per the recall report published in USA in March 2022 is concerned the same was covering BMW vehicles of a particular batch and series having petrol engines.  The said recall policy was not applicable to the complainant’s vehicle which had a diesel engine. The complainant has not made out any valid grounds for grant of compensation.  It is a clear case of abuse of court. Hence prayed for dismissal of the complaint.

14. The complainant has filed his affidavit evidence and relies on 13 documents.  Affidavit evidence of official of OP2 has been filed and OP relies on 03 documents. OP1 has filed his affidavit evidence and relies on 13 documents.

15. Heard the arguments of advocate for both the parties.   Perused the written arguments filed by both the parties.

16. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

17. Our answers to the above points are as under:

Point No.1:  In the Negative

Point No.2: In the Negative

Point No.3: As per final orders

REASONS

18. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence, written arguments and documents filed by both the parties.

19. It is undisputed fact that the complainant has purchased BMW XI 2.0D of black colour on 30.05.2011 for Rs.31,00,000/-, vide registration No.PY01 BJ 8102.  It is the grievance of the complainant that he was maintaining the vehicle in good condition. On 28.07.2022 at around 9 pm when he was driving the above car with his wife on the elevated electronic city flyover, fire incident took place in the vehicle.  The vehicle was completely burnt. On the very next day he contacted OP2 and as per the request made by the OP2 he has given written consent to find out the cause behind the incident. Thereafter the OP2 then examined the vehicle and shared all necessary and relevant details with the OP1.  After that the complainant has filed this complaint claiming for replacement of the car or refund of the amount and for compensation of one crore and cost of Rs.1,00,000/-.

20. In support of his contention the complainant has relied on 13 documents. Ex.P1 is the copy of the registration certificate, Ex.P2 is the photograph of the car showing fire incident, Ex.P3 to 5 are the copies of the newspaper articles downloaded from the internet wherein the BMW company cars have been recalled.  Ex.P6 is the copy of the legal notice, ExP7 is the copy of the legal notice received by OP1. Ex.P8 is the aadhar card of the complainant. The complainant has also produced the copy of the acknowledgement received from the parappana Agrahara police station for having lodged complaint before the police about the fire incident for the purpose of investigation. Ex.P10 to 12 are the fire mischief incident taken place all over India and other countries downloaded from internet.  

21. On the other hand, the contention taken by the OP1 is that the complainant even though he was provided with owners manual at the time of purchase of car itself he has not at all followed the guidelines and instructions during the entire tenure of the ownership of the vehicle. There were major engine oil service lapses on the part of the complainant. As the complainant on several occasions had ignored prior service notifications in the vehicle and reported the vehicle for services at overdue mileages.

22. In support of their contentions the Manager technical support was examined on behalf of OP1 and they have produced the copy of the entire vehicle service history as Ex.R1. it is clear from the Ex.R1 that the complainant has ignored regular services schedules:

i.                    September 21, 2011 @ 12495:overdue by 150 kms.

ii.            October 18,2012 @ 50703: over due by 370 kms

iii.           February 27, 2012 @ 65651: over due by 2100 kms

iv.           August 06, 2013 @ 80755: over due by 2100 kms

v.            October 28, 2014 @ 114165: over due by 7000 kms

vi.           February 2019 @ 186908: over due by 4700 kms

23. It is undisputed fact that the complainant used the vehicle for 11 years covering a total of Rs.2,68,103/- kms., without facing any major concerns in the vehicle.  

24. It is also clear from the Ex.R1 that the vehicle was last reported to the authorized BMW service centre on 27.05.2019 at the mileage of 220749 kms., it was reported for water ingression in engine (hydro static concern). The complainant did not allow the authorized dealer to carry out any repairs at all and took back the vehicle without any repairs.

25. It is the contention taken by the OP that engine damage due to water ingress has to be handled and repaired with care. The OP company is not aware how the said engine repairs were carried out on the vehicle.  Since the condition of the engine as well as the kind of the engine repairs carried out for water ingression are unknown. The engine operation and performance cannot be guaranteed either by the dealer or by the manufacturer. The poor maintenance of the engine/vehicle and poor repair workmanship at unauthorized workshop may lead to untoward incident at any point of time. From 27.05.2019 and until the date of the alleged incident the vehicle had covered more than 47000 kms., i.e., in a span of three years without any service being carried out on the vehicle at any BMW authorized service centre.  Either the complainant did not get the vehicle serviced or he took the vehicle to any local unauthorized workshops for service repairs. From these facts it is clear that the vehicle was not maintained as per manufacturers recommendation/guidelines and that the technical integrity of the vehicle was enormously compromised.  

26. In addition to it the Ops have taken the contention that the complainant has failed to establish the manufacturing defect in the vehicle. The Ops have relied on the decisions of the Hon’ble NCDRC.

27. It is clear from the decisions of the Hon’ble NCDRC that “the manufacturing defect is much more than an ordinary defect which can be cured by replacing the defective part. Manufacturing defect is fundamental basic defect which creeps while manufacturing a machinery. To prove such a defect opinion of an expert is necessary.

28. It is also clear from the decision of the Hon’ble NCDRC that if the vehicle is having any inherent manufacturing defect it would not have been possible for the vehicle to run for about 48689 kms., for over a period of more than 3 ½ years.

29. It is undisputed fact that the vehicle of the complainant had covered a total of 268103 kms., in a span of 11 years before the alleged fire incident took place which clearly discloses that there was no manufacturing defect in the vehicle.  The complainant during the entire tenure of the ownership has been negligent while using the vehicle.
30. The complainant is claiming an exorbitant relief for replacement of the vehicle or refund of Rs.31 lakhs with exorbitant amount of compensation of Rs. One crore and litigation cost of Rs.1,00,000/-.

31. It is also clear from the various decisions of the Hon’ble NCDRC, when a manufacturing defect is alleged the onus of proof has to be on the complainant. To establish the claim for total replacement by a new vehicle the complainant has to prove by cogent credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer that the vehicle suffered from inherent manufacturing defect. When the complainant had not been able to discharge its onus to prove the manufacturing defect is not entitle for relief.  None of the documents submitted by the complainant show that the fire incident took place because of the manufacturing defect in his vehicle, since the front engine and the entire engine portion of the vehicle was burnt the Ops have failed to assess the root cause for the incident. It is also clear from the very documents produced by the complainant and Ops that immediately after the incident the complainant has approached the OP2 and the OP2 has referred the same to OP1.  After obtaining the written consent from the complainant they have opened the engine and they have analyzed the vehicle remains. They are unable to trace the cause of thermal incident in the vehicle. Immediately they have communicated the same through email to the complainant on 05.09.2022. They have also suggested the complainant to get the damages from the insurance company. Since the complainant vehicle did not have own damage coverage as on the date of the incident. The complainant was unable to get any damages or compensation from the insurance company.  

32. When the complainant has failed to establish the mechanical defect of the vehicle and also the cause for the thermal incident the complainant is not entitle for the relief for replacement of the vehicle or refund of Rs.31 lakhs i.e., the cost of the vehicle. When the complainant has used the vehicle for more than 11 years covering 268103 kms., the complainant is not entitle for the relief claimed in this complaint for replacement of the car and for refund of the amount of Rs.31 lakhs.  

When the Ops have responded to the complainant immediately after the incident and they have given their report after inspection of the vehicle the question of deficiency of service or negligence on the part of the OP do not arise. When the complainant himself has not maintained the vehicle and it is also clear that the poor maintenance of engine/vehicle and also poor repair workmanship of unauthorized workshop may lead to the said thermal incident. The Ops are not at all responsible for the negligence attitude of the complainant in maintaining his own vehicle by leaving the vehicle for service with the authorized service station of OP1 company. It is also evident from Ex.R1 that the vehicle was not maintained as per manufacturer recommendations/guidelines and the technical integrity of the vehicle was enormously compromised. Under these circumstances the complainant has failed to establish the mechanical defect of the vehicle and deficiency of service on the part of the Ops. Hence the complainant is not entitled for any relief. Therefore we answer point No.1 and point No.2 in the Negative.

33. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is Dismissed. No costs.
2. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 27^TH day of OCTOBER, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party 2– R.W.1;

Documents produced by the representative of opposite party 1– R.W.1;