Date of Filing:18-02-2015
Date of Order: 24-4-2019
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.VIJENDER, B.Sc. L.L.B. PRESIDENT.
HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER
Wednesday, the 24th day of April, 2019
C.C.No.138 /2015
Between
Sri Ugamraj Nahar
S/o.Sri Late Bhawarlal Nahar,
Age:61 years, Occ: Business,
R/o.Plot No.477, road No.21,
Jubilee Hills, Hyderabad – 500033 …….. Complainant
And
- The Managing Director,
BMW India Pvt.Ltd.,
Building No.8, Tower –B,
7th floor, DLF Cyber City,
Ph-2, Gurgaon, Haryana 122001
- Mr.Goutam Reddy,
Managing Director,
Kun Motoren Pvt.Ltd.,
6-3-569, Kun Exclusive,
Opp: RTA, Somajiguda,
Hyderabad – 500082
- Mr.Krishna Bhushan,
General Manager – After Sales,
Kun Motoren Pvt.Ltd., 6-3-569, Kun Exclusive,
Opp: RTA, Somajiguda,
Hyderabad – 500082
- Mr.Azim Khan
Kun Motoren Pvt.Ltd., 6-3-569, Kun Exclusive,
Opp: RTA, Somajiguda,
Hyderabad – 500082 ….Opposite Parties
Counsel for the complainant : M/s.M.Papa Reddy
Counsel for the opposite Party No.1 : Mr.C.Sumon
opposite Party No.2 to 4: Mr.K.Vishweshwar Reddy
O R D E R
(By Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)
This complaint has been preferred under Section 12 of C.P. Act of 1986 alleging demand made by opposite parties No.2 to 4 by way of invoice for Rs.3,31,237/- towards cost of repairs and services done to the complainant’s vehicle as arbitrary and unfair trade practice and not releasing the vehicle caused inconvenience to the complainant hence a direction to the opposite parties to deliver the complainant’s vehicle on the deposit of Rs.40,000/- by the complainant towards cost of repairs and a further direction to pay damages at Rs.3,000/- per day from 20th September 2014 till 31-01-2015 and cost of this complaint at Rs.3,000/-.
- The complainant’s case in brief is that he purchased a BMW 520D car in August
2008 from the authorized dealer of opposite party No.1. He purchased the said car having lured with claim of its high performance and reputation of the opposite parties and its brand. Later he got registered the car as AP 09BQ 7575. On 4-09-2014 the complainant faced a miner problem as the car was not starting immediately after pressing the start button. Hence he contacted opposite party No.2 to 4 the authorized dealers of opposite party No.1 and on such contact their employee attended the grievance and took the car to workshop and two days later returned the car. But the problem persisted. The complainant was not informed by the opposite parties that there was a major problem for the car.
Since the problem of start button persisted the complainant informed to opposite party No.4 who pick up the car to workshop on the pretext that there was an issue with the coolant tank and at that time also no other problem was reported to him. Thereafter there was several telephonic conversations between the complainant and opposite party No.4 and at that time he was informed that there were different problems with the car and same have to be dealt with but to the enquiries of complainant they did not give a straight answers and kept avoiding him. Opposite party No.4 informed the complainant that a particular part is required to be changed and the cost of it would be Rs.30,000/- to Rs.40,000/-. Believing it the complainant gave oral consent to replace that particular part. No approval was taken from him by the opposite parties either in writing or telephone for attending major repairs. While the complainant was waiting for delivery of the car to him after attending repairs on 25-11-2014 opposite parties No.2 to 4 informed that the car was ready and final invoice for repairs was Rs.1,25,000/-. Immediately complainant spoke with opposite party No.4 who assured that after a test drive his grievance can be considered. Believing it complainant went to workshop and to his surprise found that his car in a dirty condition and it appeared the personal of the opposite parties have used it. Even at that time also he was not informed of any major problem to the car. He received a final invoice dated 3-12-2014 and the bill raised was for an amount of Rs.3,31,237/- and having seen it he was taken aback. The said invoice was followed by an email dated 5-12-2014 informing that as a special case the final invoice amount was reduced to Rs.1,25,000/- and no reason was mentioned for reducing the such a huge amount. This itself shows the malafides and inefficiency on the part of the opposite parties. A perusal of the invoice raised shows lot of unnecessary services were charged with an intension to enhance the bill amount. A part called RMFD Turbo was shown as replaced and same part was also replaced in November, 2012 at a cost of Rs.1,39,860/-.
On 14-12-2014 complainant sent an email to opposite parties 2 to 4 raising his grievance and protest against the services provided but there was no response. Later he tried to contact opposite party No.1 to sort out the problem but they lent a deaf ear. The delay in diagnosing the actual defect and attending the repairs was inordinate. It appears the opposite parties were not really in the knowledge of detecting the actual defect in the vehicle. The original assurance given for attending repairs and to change of parts worth of Rs.30,000/- to 40,000/- and subsequently raising a bill for Rs.1,25,000/- amounts to inefficiency. Before attending such repairs involving payment of exorbitant amount the opposite parties were expected to seek a prior approval from the complainant in writing. Raising bill for an amount of Rs.3,31,237/- and reducing it to Rs.1,25,000/- and failure to explain the delay caused in an apparent defect in service attributable to the opposite parties.
In the said circumstances the complainant got issued a legal notice on 12-01-2015 asking the opposite parties to deliver the car immediately as he was facing immense inconvenience and to re-evaluate the invoice raised to the extent of the amount approved by him. Opposite parties were also called upon to pay compensation at the rate of Rs.3,000/- per day from 20th September, 2014 for the delay in delivery of the vehicle till delivery is affected. In response to it opposite party No.1 gave a casual reply on 28-01-2015 abandoning any responsibility in the controversy. Opposite party No.2 to 4 are the authorized dealers and representatives of opposite party No.1 as such is accountable for the conduct and deficiency of service on the part of the opposite parties 2 to 4. The opposite party No.1 cannot casually absolve itself from its responsibilities by issuing an indifferent and a causal reply.
Opposite parties 2 to 4 have got issued a reply on 29-1-2015 to the complainant’s notice with false allegations. In the said reply they tried to shift the burden and responsibility for the delay on the complainant . There was no occasion for the complainant for giving an approval in writing to carry out repairs mentioned in the invoice. In fact there was not even a mention of the problem as portrayed to have been sustained to the vehicle. The opposite parties were in capable and inefficient in detecting the problem of the vehicle in spite of retaining the vehicle with them for a long period of time. Such inefficiency amounts to deficiency of service. In reply notice opposite parties 2 to 4 have demanded a sum of Rs.2,000/- per day from 15-12-2014 as demurrage charges and further sum of Rs.10,00,000/- as damages which is absolutely uncalled for and has been raised only as a counter blasted to the complainant’s claim. These acts of opposite parties amounts to clear and un-ambiguous acts of deficiency in service. Hence the present complaint.
- Opposite party No.1 filed its separate written version whereas opposite parties 2 to 4 filed a common written version on their behalf. The substance of opposite party No.1’s written version is that it is evident from the complainant that impleadment of opposite party No.1 in the complaint is nothing but an abuse of process of law and an attempt to harass it as no allegation of whatsoever is made against it in the complaint. The grievance of the complainant is in respect of alleged deficiency of service rendered by opposite party No.2 to 4 while attending repairs to the complainant’s vehicle. There is no cause of action to file a complaint against opposite party No.1 and in fact in the cause of action paragraph of the complaint itself says that originally cause of action arose on 4-09-2014 and finally on 3-12-2014 when the final invoice for Rs.3,31,237 was issued to the complainant. So disclosing the cause of action itself shows no cause of action arose to file a complaint against the opposite party No.1. Similarly the complainant did not allege that there is a manufacturing defect in the subject vehicle so as to implead the opposite party No.1 in the complaint. There is no privity of contract between the complainant and opposite party No.1 in respect of attending repairs to the vehicle. To the legal notice got issued by complainant a suitable reply was given and despite that the complainant has impleaded opposite party No.1who is not a proper and necessary party for the complaint. Hence the complaint is liable to be dismissed against opposite party No1.
- Opposite party No.2 to 4 while denying the material allegations in the complaint contended that Kun Motorenis is an authorized dealer of the world renowned automobile brand BMW and it is in the business of long period of time and enjoys immense goodwill and reputation in the market in southern region of India and it is well known as customer friendly after sales support to the BMW patrons. It is a well equipped service stations and trained personnel. Its workshop centre is equipped with state of art facilities for inspecting, repairing and rectifying the defects if any in the vehicle brought to it. Each vehicle brought before it is inspected, repaired and rectified by manually as well as by using the latest and advanced computer enabled tools which detect almost all the defects brought before it. Every service advisor, service engineer and others are trained by rigorous training programme at the head quarters of opposite party No.1.
The complainant has been a patron of Kun Motoren ever since its inception in 2010. He approached service centre in the month of September, 2014 with certain problems. The service engineers immediately attended the vehicle and carried out necessary repairs. At that time its service person advised the complainant for replacement of engine mount, front strut, oil filter gasket and EGR cooler. But the complainant told the service person not to replace the same. Hence the vehicle was handed over to the complainant pointing out in the service invoice that the above issues are needed attention for the effective function of the vehicle. The complainant used to bring parts from unauthorized sources and insist to use the same in the vehicle even though he was appraised by the service advisor about the problems cropped up with the unauthorized parts. The complainant got the up gradation of engineer software by an un authorized sources in the month of September, 2011 and because of that the engine of the vehicle was cracking and starting with noise. He brought the vehicle to opposite party No.2 to 4 for necessary repairs and same was carried out. The trained personnel of BMW authorized servicing centres can only upgrade the engine software by using the highly standard equipments. The action of the complainant in resorting to upgrade the engine software by unauthorized sources itself shows the irresponsibility and negligence in maintaining the vehicle of BMW brand.
On 10-09-2014 complainant brought the vehicle and complained that engine oil/coolant leakage. The service advisor upon checking the vehicle told to the complainant that car requires elaborate repairs including engine overhaul and damage has been caused because of failure to replace the parts earlier informed and because of non use of genuine parts and lubricants by the complainant. The complainant purchased the parts from local market not genuine one. The service engineer carried out repairs as and when a new issue came to light by the complainant. The car was ready for delivery on 03-12-2014 and the complainant was requested to come and collect it and final invoice for the amount of Rs. 3,31,237/- was raised. The service centre as a goodwill gesture covered the costs of the turbo charger under the spare parts warranty and gave a discount of the corresponding amount. The complainant on receipt of proforma invoice raised false and baseless allegations and same was responded by servicing centre orally and in writing and requested the complainant to take delivery of the vehicle but till date he has not taken delivery of it. Thereafter complainant proceeded to issue notice with false allegation that the repair was carried out without authority and the car was in dirty state and there was delay in identifying the problem to the car.
The allegations leveled in the legal notice are absolutely false. After specific instructions of the complainant repairs were carried out. The car was not in dirty state and it was cleared after completion of repairs. There was no delay in identifying the problem in the car. In fact the problem was immediately identified and informed to the complainant. The delay was on account of unavailability of spare parts in India which were necessarily required to be imported from Germany. The other reason for delay was non-availability of the complainant for joint test drive.
When the complainant brought the car first time on 20-7- 2010 with a mileage of 28,222 KM the service history discloses that the complainant has not visited any of the BMW authorized service centre during the said period and he got serviced the vehicle from unauthorized persons who used non-genuine parts, lubricants from local markets.
The complainant never used his vehicle in terms of the user guide of BMW and not followed the advice of the Kun Motoren’s service advisor for replacement of parts such as engine mount, front strut, oil strut, oil filter gasket and EGR cooler. Complainant being himself negligent and irresponsible in maintaining his vehicle has resorted to make baseless allegations with mischievous intention of wrongful gain. Only after lapse of six years from the date of purchase of the vehicle and after using it for 67722 KM a technical glitch was complained by the complainant. The complainant was never informed by the service engineer of opposite party No.2 to 4 that the repair would cost of Rs.30,000 to 40,000/-. The complainant being aware of the problems with the car and having consented to the repairs resorted to make false allegations in the legal notice and the present complaint in order to escape from the liability of payment of the invoice amount. In voice raised for repairs attended to the car of the complainant. There was no deficiency of service on the part of the opposite parties 2 to 4 in attending repairs to the car. It is the complainant who refused to take delivery of the car after attending repairs to it by the service engineer of opposite party No.2 to 4. Hence complaint is liable to be dismissed with exemplary costs directing the complainant to pay an amount of Rs.2,000/- per day towards damages for parking his car at opposite party No.2 premises from 15-12-2014 to the date off disposal of the complaint.
In the enquiry stage complainant has got filed his evidence affidavit reiterating the material facts narrated in the complaint and also got exhibited eight (8) documents. Similarly for the Opposite Party evidence affidavit of one Sri Krishna Bhushan stated to be their authorized representative is got filed and the substance of the same is in line with the contentions put forward in the common written version and through him thirteen (13) documents are exhibited. Written arguments are filed by both sides.
On a consideration of material available on the record the following points have emerged for consideration .
- Whether the complainant consented and approved for attending repairs tot the car and agreed to pay the total cost for it?
- Whether the complainant is entitled for the amount claimed in the complaint?
- To what relief?
Point No.1&2: As rightly pointed out by opposite party in written version by the time the complainant took his car to opposite party No.2 to 4 it was out of warranty and the complainant was not instructed by opposite party No.1 take the car to opposite parties 2 to 4. Though opposite parties 2 to 4 are authorized dealers of opposite party No.1 their actions are independent and for the commissions and omissions committed by the opposite parties 2 to 4, opposite party No.1 cannot be made liable. Admittedly complainant had no issue with opposite party No.1 except the stand that since opposite parties 2 to 4 are the authorized dealers of opposite party No.1 there is a vicarious liability for the acts committed by opposite party No.2 to 4. The opposite party No.1 in the written version referred the decision of Hon’ble State Consumer Disputes Redressal Commission, Maharashtra in the case of Rehab Housing Pvt.Ltd., Vs.BMW Germany and others. In the said case it was held that all transactions in respect of purchase of the car was made between the complainant on one hand and dealer on the other hand. The complainant appears to have impleaded the manufacturer despite there being no cause of action and no privity of contract between the complainant and one hand and the manufacturer on the other hand. Opposite party No. 1 &2 cannot be held liable for the acts committed by dealer opposite party No.3. Dealer in dealing with the customer while in selling BMW cars with an agreement is executed on principal to principal basis , the manufacturer cannot be saddled with the liability if the dealer committed any default or any deficiency in performance of the contract he had entered into with the ultimate consumer. Similarly in the cause of action of the complaint, complainant has not shown any cause of action against opposite party No.1 so as to initiate the complaint against it.
In the light of above said legal position the complainant cannot maintain the present complaint against opposite party No.1
It is a fact that the complainant took the vehicle to opposite party No.2 to 4 on 4-09-2014 and his case is the problem faced with the vehicle as on that date was the vehicle was not starting immediately after pressing the start button. It is also is contention that two days after the car was returned to him but the same problem persisted. But the stand of the opposite party No.2 to 4 is the service engineer at that time itself informed to the complainant that engine mount, front strut, oil filter gasket and EGR cooler are required to be replaced immediately as otherwise the problem with the car will continue and it is likely to be damaged. But the complainant denies any such information to him by the service engineer. It appears the complainant took the car to opposite party No.2 to 4 and at that time he was informed that a particular part was required to be replaced and it would cost Rs.30,000 to 40,000/- hence he gave a consent to go ahead with the replacement of that particular part expecting the final invoice would about Rs.40,000/- but when he was informed to visit the workshop to collect the car after attending repairs he was shocked when invoice is placed in his hand for an amount of Rs.3,31,273/- and after discount as a special gesture it was reduced to 1,25,000/-. Items stated to have been replaced are mentioned in said invoice. Complainant says his consent or approval was not obtained by opposite party No.2 to 4 for replacement of the parts. A particular part known as RMFD Turbo was shown as replaced but the same part was replaced in November, 2012 at a cost of Rs.1,39,860. Since he did not give consent or no approval to the service engineer of opposite party No. 2 to 4 he refused to pay Rs.1,25,000/- and he did not take the car from opposite parties. As a result even as on today car is in the workshop of opposite party No. 2 to 4.
When opposite party No. 2 to 4 positively assorts that complainant approved and consented for replacement of the parts it is for them to substance the same. When the complainant pleads that he neither gave consent nor approved for such replacement of part we cannot expect the positive an evidence to substantiate the same. Not giving consent or approval is a negative aspect for which one cannot have a positive evidence whereas an assertion of obtaining consent and approval is a positive aspect for which one has to produce a positive evidence. It is not in dispute that the original invoice raised by opposite party No. 2 to 4 was for Rs.3,31,237 and it is quiet a huge amount as far as repairs is concerned. When opposite party No. 2 to 4 persisted to attend repairs at such huge cost they must have taken consent or approval from owners of the vehicle in writing. They cannot say that an oral approval was secured from the complainant for it. Even according to opposite party No. 2 to 4 stand earlier complainant sourced some of the parts locally and because of using such parts the engine was cracking. This itself shows the complainant was not prepared for huge amount to procure the original spares and this fact is known to opposite party No. 2 to 4 then how can they proceed with replacing the damage parts with original parts. The normal procedure is to prepare an invoice showing the estimate for attending repairs to the vehicle brought before them by a customer and without an estimation invoice and without a consent for it from the owner of the vehicle they are not expected to proceed with for attending repairs involving huge amount of Rs.3,31,237. As rightly urged by the complainant though opposite party No. 2 to 4 have raised bill for Rs.3,31,237 they reduced it to Rs.1,25,000/- and the reasons given for it by them is as a goodwill gesture and maintain the relationship with the customer which cannot be believed because the amount reduced was more than Rs.2,00,000/- i.,e 60% of the bill amount. This goes to show that opposite party No. 2 to 4 are in the habit of raising the bill for a huge amount then reduce as if some concession was given to the owners of the car. From material placed on record by opposite party No.2 to 4 they have not taken any consent or approval from the complainant for incurring huge expenditure for repairing the vehicle hence the complainant is not liable to pay said amount. That apart opposite party No.2 to 4 have not produced the bill for the purchase of parts from the original manufacturers. This also one of the reason to disbelieve the stand of opposite party No.2 to 4.
When the complainant refused to pay the amount of Rs.1,25,000/- and did not take delivery of the car opposite party No.2 to 4 expected to cause of notice but they kept silent. It is the complainant who caused notice and in the reply given opposite party No.2 to 4 have taken a plea that earlier also complainant was informed to requiring him to replace the some parts for that also there is no proof from them. Hence there is no reason to disbelieve the complainant’s version.
The complainant did not pay the invoice bill as it was raised for huge amount without justification and since he has not paid the bill amount car was also not taken delivery. The complainant’s version is he was informed that likely expenses for the attending repairs which includes replacement of particular part would be worth of Rs.30,000/- to 40,000/- and believing the same he gave consent hence he is prepared to pay sum of Rs.40,000/-. Hence complainant liable to pay an amount of Rs.40,000/- to opposite party No. 2 to 4 and soon after receiving it opposite party No. 2 to 4 shall deliver the car to the complainant. Since they have retained the car all these days opposite party No. 2 to 4 also to pay a sum of Rs.25,000/- to the complainant as having caused inconvenience to him for all these days. Accordingly point is answered infavour of the complainant.
Point No.3: In the result, the complaint is partly allowed
- Directing the complainant to pay a sum of Rs.40,000/- to opposite parties 2 to 4 within one month from the date of service of this order and on receipt of said amount opposite parties 2 to 4 are directed to deliver the car to the complainant.
- The opposite parties 2 to 4 are directed to pay a sum of Rs.25,000/- as compensation for causing the delay for all these days.
- The opposite parties 2 to 4 further directed to pay a sum of Rs.3,000/- towards costs of this complaint.
- Complaint against opposite party No.1 is dismissed.
Time for compliance: one month from the date of service of this order
Dictated to steno, transcribed and typed by her, pronounced by us on this the 24th day of April , 2019
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Exs. filed on behalf of the Complainant:
Ex.A1- Copy of the Registration certificate of the car
Ex.A2- original invoice dt.03-12-2014
Ex.A3- copy of Email
Ex.A4 – original invoice dt.20-11-2012
Ex.A5- copy of email sent to opposite parties 2 to 4
Ex.A6 - office copy of the legal notice dt.12-01-2015
Ex.A7 – reply notice dt.28-1-2015 got issued by opposite party No.1
Ex.A8 – reply notice dt.29-1-2015 got issued by opposite party No.2 to 4
Exs. filed on behalf of the Opposite party
Ex.B1- previous invoices
Ex.B2 -service job sheet dt.10-09-2014
Ex.B3 -terms and conditions dt.10-09-2014
Ex.B4 -service job observations dt.10-09-2014
Ex.B5 -job card observations dt.12-09-2014
Ex.B6 - service proforma invoice03-12-2014
Ex.B7- Email to the complainant
Ex.B8 -email to the complainant
Ex.B9- reply email by the complainant
Ex.B10- email to the complainant
Ex.B11 -remainder notice to complainant dt.30-12-2014
Ex.B12 - legal notice dt.12-01-2015
Ex.B13 -reply to legal notice ddt.29-01-2015
MEMBER PRESIDENT
