DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH Complaint Case No.: 1495 of 2009 Date of Inst:14.12.2009 Date of Decision:.11.06.2010 Mr.Balkar Singh, Plot No.682, Industrial Area, Phase-II, Chandigarh. ---Complainant V E R S U S 1. BMW India Pvt. Ltd., DLF Cyber City, Phase-II, Building No.8, Tower-B, 7th Floor, Gurgaon-122002, Haryana India. 2. M/s Krishna Automobile, BMV Dealer, Plot No.125, Industrial Area, Phase-I, Chandigarh-160002. 3. M/s Future General India Insurance Co. Ltd., SCO No.78-79, Sector 17-C, Chandigarh. ---Opposite Parties QUORUM SHRI LAKSHMAN SHARMA PRESIDENT SMT.MADHU MUTNEJA MEMBER PRESENT: Sh.Hitesh Sood, Adv. for complainant Sh.Jagvir Sharma, Adv. for OPs No.1 & 2. Sh.Rajesh Verma, Advocate for oP-3. --- PER LAKSHMAN SHARMA, PRESIDENT Sh.Balkar Singh has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OPs be directed to :- i) Replace the tyres/rim of the car as estimated by OP-2 without any charges or to pay respective compensation thereof. ii) Pay a sum of Rs.50,000/- as compensation for mental agony and harassment. iii) Pay a sum of Rs.20,000/- as litigation costs. 2. In brief, the case of the complainant is that on 01.03.2009, he purchased a car (Make BMW SBOD) from OP-2 and got it insured from OP-3 under cover note No.B0053913. According to the complainant, in the month of August, 2009, he was coming back to Chandigarh from Delhi along with his family. Suddenly he felt that the car was not running smoothly. So he checked the same and found that the tyres were bulging. He was advised by the mechanic to drive the car slowly. Thus, the complainant drove the car at a very moderate speed. On reaching Chandigarh, he took the car to the workshop of OP-2 and got it checked. OP-2 found that two front tyres of the car were bulging out and front rim was bent. The rim and the said two tyres needed replacement. OP-2 gave an estimate of Rs.85,488/- (Annexure c-2). The case of the complainant is that he had purchased the car about 5 months back and it had covered a distance of 4058 kms only. So the rim should not have bent and tyres should not have damaged to that extent. Therefore, there was some manufacturing defect in the rim and the tyres. So he requested the OP-2 to repair the car free of charge as the car was still under warranty. However, OP-2 refused to do so and advised the complainant to approach OP-3. Accordingly, the complainant lodged the claim with OP-2 which was rejected by it on the ground that the loss to the vehicle was due to wear and tear and was not covered under the terms and conditions of the insurance policy. Thereafter, the complainant again approached OP-2 to replace the rim and tyres free of costs but to no effect. The complainant served the OPs with a legal notice but to no effect. In these circumstances, the present complaint has been filed seeking the reliefs mentioned above. . 3. In the reply filed by the OPs No.1 and 2, it has been pleaded that there is no manufacturing defect in the tyres/rims. The case of the OPs is that at the time of inspection in the workshop of OP-2, it was observed that the car had two tyres and one rim damaged due to external impact during the course of its use. The extent of damage was such that the wheel rims too had rubber impressions from the tyre on it and such damages occur due to heavy external impact on the wheels and were purely user related damages. According to OPs, such damages are not covered under the terms of warranty and the complainant is required to get the same replaced on payment basis. In these circumstances, according to OPs, there is no deficiency in service on their part and the complaint deserves dismissal. 4. In its separate written statement, OP-3 pleaded that the dispute is between the complainant and OPs No.1 and 2 and it has no role to play. It has further been pleaded that loss to the tyres and rim is not the result of any accident. It is due to wear and tear which does not fall within the ambit of the terms and conditions of the insurance policy. Therefore, the claim of the complainant was rightly declined vide letter 23.09.2009. In these circumstances, according to OP-3, there is no deficiency in service on its part and the complaint is liable to be dismissed against them. 5. We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc. placed on record. 6. OPs No.1 and 2 are relying upon the exclusion clause of terms and conditions with regard to warranty which reads as under:- “It is the user’s responsibility to operate the vehicle in a careful manner on all types of road surface, BMW warranty does not cover user induced damages such as damaged tyres (punctures, cuts, carcass, damage and bulges) bent wheel rims and bent suspension components for such repairs, the BMW dealer shall provide the user with a retail cost estimate”. 7. It was vehemently argued by the learned counsel for the OPs No.1 and 2 that the damage in question to the car is user related and the same was caused due to wrong driving of the car by the complainant. The external impact on the tyres and alloy rims is due to driving of the car over an angular object, kerb, potholes or speed humps at a very high and excessive speed. It is pertinent to mention here that there is no direct evidence on record to prove that the damages are purely user related. In the estimate-cum-wheel and tyre condition report, it has been mentioned that the damages were due to external impact. The external impact may be caused due to damaged road or some other reasons which may not be strictly related to bad driving. In any case, such an assertion by the OPs have not been conclusively proved by the material on record. 8. On the other hand, the complainant has filed his affidavit deposing that the car never met with an accident nor had he driven the car rashly and negligently. In these circumstances, the clause reproduced above is not applicable to the present case. 9. The car was purchased about five months prior to the said damage and it had covered a distance of 4058 kms only. The rim and tyres got damaged while the car was being driven on national highway under normal circumstances. If such parts got damaged by normal and routine driving, it must be on account of some manufacturing defect in those parts. Therefore, OPs No.1 and 2 cannot escape their liability to replace the damaged parts and to repair the car without any charges. Thus, refusal on the part of OPs No.1 and 2 to replace/repair the car parts free of cost amounts to deficiency in service and unfair trade practice. 10. As the damages to the car were not the result of any accident so the OP-3 cannot be made liable to compensate the complainant in any respect. Hence, the complaint qua OP-3 stands dismissed. 11. In view of the above findings, this complaint is allowed against OPs No.1 and 2 with a direction to them to replace the damaged parts of the car and to repair the car to the entire satisfaction of the complainant free of cost. OPs No.1 and 2 are further directed to pay to the complainant a sum of Rs.30,000/- as compensation for mental agony and harassment and Rs.5000/- as costs of litigation. 12. This order be complied with jointly and severally by the OPs No.1 and 2 within 45 days from the date of receipt of its certified copy, failing which they shall be liable to refund the estimated value of Rs.85,488/- and Rs.30,000/- (i.e. Rs.1,15,488/-) along with penal interest @ 18% p.a. from the date of filing of the complaint i.e. 14.12.2009 till the date of its realization besides cost of litigation. 13. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 11.06.2010 Sd/- (LAKSHMAN SHARMA) PRESIDENT cm sd/- (MADHU MUTNEJA) MEMBER
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | , | | 
