KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No.50/2013

JUDGEMENT DATED: 13.12.2023

PRESENT:

COMPLAINANT:

(Party in person)

Vs.

OPPOSITE PARTIES:

(by Adv. R. Suja Madhav)

(by Advs. A. Abdul Kharim & R. Narayan)

JUDGEMENT

SRI. AJITH KUMAR  D.  :  JUDICIAL MEMBER

          This is a complaint filed by one Shafeer B.A. against the Managing Director, BMW India Pvt. Ltd. and Managing Director, Platino Classic Motors (India) Pvt. Ltd., alleging deficiency in service and unfair trade practice.  The averments contained in the complaint in brief are as follows:-

          2.       The complainant had purchased a new BMW 7 series 730 Ld car on 06.03.2012 after paying a sum of Rs.85,95,325/-(Rupees Eighty Five Lakhs Ninety Five Thousand Three Hundred and Twenty Five only) from the 2^nd opposite party.  One of the Sales Executive of the 2^nd opposite party had contacted the complainant and explained the specialities of the motor car with respect to its automatic tail gate operation, voice control system, lane change warning, forward alert system, night vision with person recognition.  Another speciality projected was that the tyres were anti puncture system which will ensure up to 500km hassle free driving even when the tyres become punctured.  The Sales Executive had also explained about the BMW Secure scheme which provides replacement warranty against any kind of manufacturing defect as well as loss caused against the assurances provided with regard to the performance of the vehicle.  On 31.03.2012 the complainant had joined the scheme by paying an amount of Rs.3,86,602/-(Rupees Three Lakhs Eighty Six Thousand Six Hundred and Two only) by way of a cheque which was encashed on 04.04.2012.  Soon after the purchase, automatic tail gate operation, voice control system, lane change warning, forward alert system, night vision with person recognition system were not functioning. When the complainant contacted the 2^nd opposite party through phone and by registering a complaint, it was promised that the defects will be rectified.  But the defects were not rectified, though the opposite party had collected payment for all those systems at the time of purchase.  Within three months from the date of purchase two tyres of the car broke and a disc was also damaged.  The tyres were brought from Ernakulam and replaced.  When the complainant brought his car to the service centre of the 2^nd opposite party, an amount of Rs.32,000/-(Rupees Thirty Two Thousand only) was collected towards charges.  Again, after covering 7,000km the tyre broke and the disc was also damaged.  Since the opposite party did not supply a stepney spare tyre the complainant was not able to change the tyre as done in normal occasions.  So he was constrained to bring the car to his house in another vehicle.  When the complainant contacted the customer care centre of the opposite party, they took the vehicle and returned the same after seven days after repairs. A sum of Rs.18,000/-(Rupees Eighteen Thousand only) was collected for this. The remaining tyre also broke on 21.03.2013 at Kasaragod while driving and the car was taken to Mangalore Service Centre.  The complainant and his family were held up and constrained to stay in a lodge at Kozhikode for seven days expecting the return of the car after rectifying the defects.  But the service centre at Mangalore did not rectify the defects by stating that the secure scheme of the car had expired and they deserted the car without effecting any repairs.  As the tyre and the disc were not replaced as per the scheme, the complainant was constrained to bring the car to a lodge at Kozhikode and thereafter to Trivandrum in a lorry.  The complainant had suffered much hardships on account of manufacturing defects of the car.  He had to spend a sum of Rs.4,54,000/-(Rupees Four Lakhs Fifty Four Thousand only) towards the expenses incurred towards food, accommodation and rent.  He also incurred a loss of Rs.18,00,000/-(Rupees Eighteen Lakhs only) in his business due to the menace caused on account of the defective vehicle.  The opposite parties did not replace the tyre with a new one and disc as per the scheme.  They did not supply a stepney spare tyre like other manufacturers.  The complainant would seek for a direction to the opposite parties to supply a defect free car within a time frame or in the alternative to realise Rs.85,95,325/-(Rupees Eighty Five Lakhs Ninety Five Thousand Three Hundred and Twenty Five only) being the amount spent for the purchase of the car.  He would also seek for realisation of compensation to the tune of Rs.8,00,000/-(Rupees Eight Lakhs only ) from the opposite parties.

          3.       On admitting the complaint, notices were issued to the opposite parties.  They entered appearance and filed separate versions with the following contentions:

          The complaint is frivolous, baseless and it bears exaggerated versions.  The complainant never disclosed the true state of affairs and he has wilfully distorted the true facts in the complaint and the complainant is liable to be dismissed under Section 26 of the Consumer Protection Act, 1986.  The tyres and rims of the vehicle got damaged due to the external impact and improper handling which were replaced on two occasions i.e. on September 12, 2012 and January 28, 2013 under BMW Secure Advanced Scheme.  On the third occasion, i.e. on March 22, 2013, the scheme got elapsed.  So the Mangalore service centre was not in a position to replace the tyre and the rim.  When the complainant took the vehicle to the service centre at Calicut, as a gesture of goodwill, the complainant was provided with a spare tyre for an interim period which was not returned to 2^nd opposite party.  Even if there is any cause of action it does not lie against BMW.  There is no deficiency in service or manufacturing defects which warrants replacement of the car or payment of the entire purchase price.  The relationship between the 1^st and 2^nd opposite parties is on a principal to principal and not that of a principal and agent.  The tyres are excluded from the purview of warranty terms as they are habitually subjected to external wear and tear.  BMW cars are provided with Run Flat Tyres (RFT) and not anti puncture systems.  RFTs are self supporting tyres which have reinforced sidewalls, additional reinforcing strips and rubber mixture which remains stable at high temperature.  So it allows the vehicle to continue driving at a maximum speed of 80km/hr up to a distance of 80km to 150km with a deflated/punctured tyre.  BMW vehicles have a tyre failure indication system to the effect that if a tyre loses pressure, it alters the speed of rotation which gives a warning by way of optical and audible signal.  This device helps the driver to reduce the speed of the vehicle.  In such an event all electronic safety monitoring systems remain fully functional.  Handling of a BMW vehicle in the event of deflation of tyres is contemplated in the owner’s manual.  The vehicle of the complainant bears all the features as specified in the invoice.  BMW conducts its business in a transparent manner.

          4.       BMW Secure Advance is a unique product offered to the customers who had purchased the motor insurance products through BMW India.  It provides for replacement of tyres in case of puncture/cuts/bulge/burst.  Validity of the scheme was for one year from the date of its purchase with an option to be renewed every year.  This benefit could be availed when the insurance policy is valid for the time.  This scheme was introduced to the customers who had purchased the BMW cars after 01.04.2011.

          5.       As per the service record of the vehicle, incidents of tyre damage were reported to the 2^nd opposite party on 12.09.2012 when the vehicle had crossed 12,473km and not 4,000km as stated in the complaint.  The vehicle was put to wheel and tyre condition and a report was made on the same day which shows that the front left hand tyre of the vehicle had a bulge due to rash and negligent driving and the rim was bent from inside.  The inspection report shows that rear left hand tyre of the car was punctured by an iron nail which had pierced the tyres.  Secondly, the rim was also found bent from inside.

          6.       The subsequent visit of the complainant to the workshop was on 28.01.2013 after crossing 23,783km.  At that point of time, rear left hand tyre was burst and the rim got damaged.  The above damage was also caused due to external impact as the vehicle was overdriven beyond the permitted distance with deflated tyres.  The complainant never followed the instructions in the owner’s manual and he had driven the car with deflated tyres for more than the permitted distance.  On two occasions the tyres and the rims were replaced and a small amount alone was collected towards the depreciation which was not covered under the BMW Secure Advance.  The allegations in the complaint that two tyres broke at 4,000km and 7000km are incorrect.  Those concocted versions are raised with a view to prejudice the State Commission.

          7.       On the third occasion i.e. on 22.03.2013 the car was brought to the service centre at Mangalore with the damaged tyre.  The vehicle insurance had expired on 05.03.2013.  So the dealer could not replace the tyre as the complainant was reluctant to pay for the new tyres.  So the complainant took the vehicle to the service centre at Calicut and as a gesture of good will, a spare tyre was provided for interim period which was not returned by the complainant.  The first opposite party had denied the entire allegations incorporated in the complaint and would seek for dismissal of the complaint.

          8.       The 2^nd opposite party had also filed version with identical contentions as raised by the 1^st opposite party.  So those pleadings are not reiterated so as to avoid repetition.  According to them on 26.03.2013 the complainant came to the workshop for engine oil service.  He created a scene by threatening the employees of the service centre.  To avoid an unpleasant situation, the 2^nd opposite party gave one tyre and alloy wheel free of cost.  The complainant had suppressed these facts in the complaint.  There was no deficiency in service on the part of the 2^nd opposite party.  Hence, they would seek for dismissal of the complaint.

          9.       The complainant was examined as PW1.  Exhibits A1 to A4 were marked.  The complainant had filed I.A.No.784/2014 and got  an expert commissioner appointed to inspect the vehicle.  Exhibit C1 is the report filed by the Expert Commissioner.  The Deputy Manager of the 1^st opposite party was examined as DW1.  Exhibits B1 to B7 were marked on the side of the 1^st opposite party.  The Manager (Administration) of the 2^nd opposite party was examined as DW2.  Exhibits B8 to B13 were also marked.  Initially, a lawyer had appeared on behalf of the complainant, but later, the lawyer of the complainant filed a memo by relinquishing the vakalath.  Thereafter, the complainant appeared in person.

          10.     Heard the complainant.  Counsel for the 1^st opposite party had filed written notes of argument.  Perused the case records.  Now the points that arise for determination are:

1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties? 
2. Whether the complainant is entitled to get any relief as sought for?
3. Reliefs and costs?

Points 1 & 2

          11.     These points are considered together as the facts are interlinked.

The complainant had sworn before the Court in support of the averments contained in the complaint.  Exhibit A1 is a lawyer’s notice issued to the opposite parties with a demand for compensation to the tune of Rs.30,00,000/-(Rupees Thirty Lakhs only).  Exhibits A2 and A3 are the reply notices issued to the complainant for and behalf of the 2^nd opposite parties.  Exhibit A4 is the key data issued by the opposite parties regarding the service effected from the 2^nd opposite party.  The complainant had incorporated a version that the opposite parties had given an assurance that the car was fixed with anti-puncture tyres.  But according to PW1, the owner’s manual supplied to him does not show that anti puncture tyres were fixed on the vehicle.  As per BMW Secure plan tyres and the wheels would be covered for a period of one year.  After elapsing the above plan, the complainant has to proceed against the tyre manufactures with respect to the damage pertaining to the tyres.  The complainant would also place reliance upon Exhibits C1 to substantiate his contention.  The Expert appointed by the State Commission had inspected the vehicle and he reported that at the time of inspection the tyres fitted on the vehicle were not in good condition.  But on checking the service history of the vehicle, the Commissioner had noticed that the R.C. owner had replaced the tyre on four occasions which according to the Commissioner is an indication that the tyres supplied by the manufacturer were not able to withstand the load of the vehicle.  According to him, the tyre broke on account of two reasons.  It may be due to sub-standard or poor quality of the tyres provided or on account of inactive suspension unit of the vehicle.  On a perusal of the service records, the Commissioner came to a conclusion that the bursting of the tyre was caused due to the inactive suspension unit of the vehicle which according to him is a manufacturing defect of the vehicle. He also reported that at the time of inspection the tail gate operation was fully in a jammed condition and not closing properly.  He also added that the lane change warning system was fully deactivated and voice command system was not functioning.  He also added that water was entering the rear floor area which caused rusting of the floors and damage to the interior.  So he reached at a conclusion that the vehicle had serious defects.

          12.     The opposite parties had filed certain serious objections against the report filed by the Expert Commissioner:

          The Commissioner is not an automobile expert by profession.  The Commissioner issued no notice to the opposite parties.  The failure on the part of the Commissioner to give notice to the 1^st opposite party at the time of inspection has deprived the opposite parties from seeking an opportunity to ask the Commissioner to report the aspects required for the adjudication.  As per the version of the complainant, the vehicle was kept idle from 21.03.2013 onwards and the inspection was carried out on 06.12.2014.  So the vehicle was kept idle for more than twenty months prior to the inspection done by the Expert.  The Commissioner did not consider the fact that the vehicle was kept idle for more than twenty months prior to his inspection.  The Commissioner did not apply his mind while reaching his conclusion.  He was relying upon the service record for reaching the conclusions.  He never made any observations regarding the bursting of the tyres as shown in the service records.  He made an observation in the report that on enquiry with some of the insurers, it was learned that similar cases were reported that the tyres of this manufacturer showed poor stability of the vehicle due to its patent manufacturing defect.  Though such observations were made in the report, the Commissioner did not furnish the details of the persons with whom consultation was made and opinion was sought for.  The reason offered by the Commissioner was based upon extraneous considerations which cannot be taken into account.  The Commissioner had exceeded the limits in making observations that water was entering into the rear floor area which caused rusting of the floor.  These observations are beyond the scope of the Commission and those are not even alleged in the complaint.  So the opposite parties requested the State Commission to discard the report filed by the Expert Commissioner. 

          13.     The 1^st opposite party has caused production of Exhibit B1, the gate pass issued to the complainant on 12.02.2013.  During the cross examination of the complainant, Exhibit B1 was confronted and the complainant admitted that it bears his signature.  Exhibit B2 is the new vehicle warranty terms and conditions.  Exhibit B3 is the owner’s hand book pertaining to BMW 7 series.  Exhibit B4 is the catalogue pertaining to BMW Run Flat Tyres.  Exhibit B5 is the invoice pertaining to the purchase of the motor car by the complainant on 06.03.2012.  Exhibit B6 is the job card dated 12.09.2012 issued by the 2^nd opposite party in respect of the vehicle.  Exhibit B7 is the check list prepared by the 2^nd opposite party on 28.01.2013 when the motor car was brought to the garage with a complaint regarding the bursting of the rear left tyre.  Exhibit B8 is the BMW Secure Advance registration information pertaining to the vehicle purchased by the complainant.  As per Exhibit B8, the BMW Secure Advance coverage commences from 06.06.2012 to 05.06.2013.  Exhibit B9 is the terms and conditions with respect to the BMW Secure Advance.  It was a voluntary option by the purchaser so as to avail additional benefits by payment of additional cost subject to the terms and conditions.  Exhibit B10 is the service history of the vehicle in question.  Exhibit B11 is the true copy of the Run Flat Tyre catalogue.  Exhibit B12 is the reply notice sent to the complainant for and behalf of the 2^nd opposite party.  Exhibit B13 is the service history of the vehicle from 06.09.2012 to 11.09.2017.

          14.     At the time of hearing the major grievance projected by the complainant was that on the third occasion the opposite parties had collected charges with respect to the replacement of the tyres when he brought the vehicle at the Mangalore service centre of the opposite party on 21.03.2012.  According to the complainant, the BMW Secure Advance scheme had actually commenced from the date of payment of the requisite amount.  According to him, the payment was made on 04.04.2012.  So he is entitled to get the benefits for a period of one year from 04.04.2012.  But the coverage of the said scheme is incorporated in Exhibit B8.  Though a concession was given by the 1^st opposite party to the complainant to make the payment within a period of thirty days from the commencement of the coverage, it cannot be stated that the coverage could be postponed beyond the period as contemplated in Exhibit B8.  The period of coverage is specifically shown as 06.03.2012 to 05.03.2013.  The terms and conditions of the BMW Secure Advance Scheme is marked as Exhibit B9.  The scope of coverage under the BMW Secure Scheme is shown in Exhibit B9 as item number three.  The validity is for a maximum period of one year.  So the stand taken by the complainant that the coverage BMW Secure Advance Scheme continued up to 04.04.2014.  i.e. one year from the date of payment of the premium is against the stipulations in the policy document exhibited as Exhibit B8.

15.     So it can be seen that the opposite parties were fully justified in charging the amount pertaining to the replacement of the tyres as the policy had expired prior to that incident.  So the grievance projected by the complainant with respect to the payments made on 21.03.2012 when the vehicle was brought to the Mangalore service centre of the opposite party cannot be construed as deficiency in service or unfair trade practice on the side of the opposite parties.

          16.     On going through the report filed by the expert, it could be seen that the expert did not apply his mind to find out the actual cause of the bursting of the tyres.  The opposite party has got a specific contention that the bursting of the tyres occurred on account of the rash and negligent driving of the vehicle and also due to the contact of the tyres with the external objects.  According to the opposite parties, on one occasion, the tyre got damaged as a nail got inside the tyres.  The Expert Commissioner did not consider the road conditions prevailing in our State.  He was relying upon the information collected with some of the insurers that several cases of tyre busting were reported with respect to this vehicle and he reached a conclusion that such bursting occurred due to poor stability of the vehicle and the manufacturing defects.  When the Expert places reliance upon certain information he gathered from outside, he has to furnish the source of information so that the correctness of the same can be checked by the adjudicating authority or the litigating parties.  Mere perusal of the service records and reaching a conclusion on the basis of assumptions is not the job of an Expert.  On a careful perusal of the report filed by the Expert Commissioner, we find sufficient merit in the objections raised by the opposite parties that the Expert was not actually competent to assess the real state of affairs and to reach a proper conclusion.

17.     There is also substance in the objections raised by the 1^st opposite party that the Expert Commissioner was totally biased in reaching a conclusion on the basis of certain assumptions.  The Expert Commissioner was expected to consider the fact that the vehicle was kept idle for a period of twenty months prior to his inspection.  On consideration of the objections raised by the 1^st opposite party and Exhibit C1 we are of the considered view that Exhibit C1 cannot be taken into account as a reliable document to reach a conclusion that the vehicle was having any manufacturing defect.  In fact, the complainant had incorporated untrue versions regarding the complaints pertaining to the tyres.  The service history of the vehicle would reveal that the bursting of the tyre at the first instance had taken place when the vehicle had crossed 12,473km but in the complaint it is alleged that the busting took place when the vehicle had run only 4000km.

          18.     The second bursting of tyre took place on 28.01.2013 after crossing a distance of 23,783km.  But in the complaint it is noted that the second bursting took place when the vehicle had crossed 7000kms.  On a careful analysis of evidence on record, it could be seen that the complainant had incorporated exaggerated and untrue versions in the complaint with a view to attribute manufacturing defects of the vehicle supplied.  When the opposite parties were kind enough to provide a grace period in making the payment so as to enable the complainant to avail the benefit covered by Exhibit B8 the complainant wanted to extend the coverage of the scheme beyond the period stipulated in the document.  At the time of argument, the complainant fairly conceded that he has been using the vehicle even at this point of time.  If the vehicle was having any manufacturing defect, the complainant ought not have continued use of the vehicle for a period of more than eleven years.  When deficiency in service or unfair trade practice is alleged, the primary burden is upon the complainant to prove the same.  The evidence adduced by the complainant would never prove any act of deficiency in service or unfair trade practice on the side of the opposite party.  So the complainant is not entitled to get any relief as sought for.  Hence, points are found against the complainant and the complaint is only to be dismissed.  Accordingly, the complaint is hereby dismissed.  The parties shall bear their respective costs.

Dictated to my Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 13^th day of December, 2023.

SL

C.C.No.50/2013

APPENDIX

1. COMPLAINANT’S WITNESS

2. COMPLAINANT’S DOCUMENTS

3. OPPOSITE PARTY’S WITNESS

4. OPPOSITE PARTY’S DOCUMENTS

5. COURT EXHIBIT

JUDICIAL MEMBER