Orissa

Cuttak

CC/102/2023

Saismita Ray - Complainant(s)

Versus

BMW Pvt Ltd - Opp.Party(s)

04 Mar 2024

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.102/2023

 

Saismita Ray,

W/o: Rupraj Lagnajeet Mohanty,

Stony Road,At:Dagarpada,Cuttack-753002.... Complainant.

 

          Vrs.

 

1.     Chairman-cum-Managing Director,

B.M.W India Car Building,2^nd Floor,

Oberai Centre,N.H., DLF Phase-2,

              Gurugram,Hariyana-122002.

 

2.    The Managing Director,OSL Prestige Pvt. Ltd.,                                                                                                                                                                                                                                                                                                                                                           N.H-16,P.O:Gopalpur,Bhanpur,                                                                                                                                                                                                                                                                                                                                                                                      Pratapnagari,Cuttack-753001.

 

3.    Kun Exclusive authorized Dealer of

B.M.W India,Plot No.5,Industrial Park,

Mangalagiri, Vijayawada,

Ahdhra Pradesh-522503.                                                               … Opp. Parties.

 

 

Present:         Sri Debasish Nayak,President.

                      Sri SibanandaMohanty,Member.

 

Date of filing:    31.03.2023

Date of Order:  04.03.2024

 

For the complainant:           Mr. R.Pattnaik,Adv. & Associates.

For the O.P no.1:Mr. A.K.Pattnaik,Adv. & Associates.

For the O.P No.2       :           Mr. B.C.Jena,Advocate.

For the O.P No.3       :           Mr.M.R.Rao,Advicate.

 

Sri Debasish Nayak,President          

Case of the complainant bereft unnecessary details as made out from his complaint petition in short is that she had purchased one BMW Sedan car from the O.P No.2 for a price of Rs.39,60,600/- on 1.4.2022.  On 23.4.2022 the complainant had started her journey from Bhubaneswar to Bangalore alongwith her husband and kids.  On 24.4.2022 near Vijayawada, the left side front tyre of her said vehicle had bursted,when the speed of the car was at 80 kilometres. per hour.  The complainant had availed the road side assistance facility as provided to her by the O.Psbut 24.4.22 being a Sunday the authorised dealer at Vijayawada was closed for which the complainant had to purchase tyre from outside store and got it fitted in her car in order to enable herself to proceed towards her destination.  Her husband had sent e.mails to the O.Ps but they had only expressed their pseudo concerns and had not reimbursed the cost of the tyre of Rs.22,000/- which the complainant had spent for purchasing  a tyre for her car from the outside  market.

          On 30.12.2022 while the complainant was travelling from Bangalore to Coorg with her family and when her car was at a speed of 40 kms per hour, the left side front tyre of her said car had againbursted.  Again, the complainant had lodged her complaint to the O.Psblaming defective alignment of the wheels of her car and asking them either to replace the car or to provide necessary assistance to her so that in future no such incident would occur. She had issueda mail on 3.12.2022 to that effect to the O.Ps.In reply to the said mail of the complainant, theO.Ps had begged apology and had replaced the tyre on that day.  But again on 31.12.2022 while the complainant was on her way towards Coorg, the left side front tyre of her car had bursted which she had immediately informed to the O.Ps claiming for a permanent solution thereto.  The O.Ps however had immediately sent an alternative vehicle to pick up the complainant and her family  members and had taken the vehicle of the complainant for necessary check-upas well as  repair and also to trace the reason of such recurring incidents.  The vehicle was handed over to the authorised dealer of the O.Ps at Bangalore on 31.12.2022.  On 7.1.2023 the complainant got back her vehicle with an assurance from the O.Ps that no such incident would happen in future.  But the complainant wanted her vehicle to be replaced or exchanged for which the complainant had to file this case claiming refund of the price ofher vehicle that which she had paid, to the tune of Rs.39,60,600/- alongwitha compensation of Rs.1,00,000/- towards her mental agony and harassment and further a sum of Rs.25,000/- towards the cost of her litigation.  She has also prayed for any other relief as deemed fit and proper.

Together with her complaint petition, the complainant has filed copies of several documents in order to prove her case.

2.       All the three O.Ps as arrayed in this case have contested the case but each of them has filed separate written version.

          According to the written version of O.P no.1, the case of the complainant is not maintainable being devoid of any merit and the complainant had built up her case with a malicious intention. She had suppressed the material facts.  Her claim that the tyre of her vehicle had bursted on three occasions within a run of 1000 Kilometres is false and baseless.  Though the complainant has made endeavour to portray the reason of tyre burst to be of manufacturing defect, such allegation according to O.P no.1is completely baseless.  Moreso, the complainant has not proved in proper manner that if her purchased vehicle had any manufacturing defect.  O.P no.1 has also alleged that the case of the complainant suffers for non-joinder and mis-joinder of necessary parties.  The O.P no.1 has relied upon various decisions of Hon’ble higher courts in this regard which are as follows:

1. In the case of Classic Automobiles Vrs. Lila Nand Mishra and Ors. I (2010) CPJ 235(NC) wherein the Hon’ble National Consumer Disputes Redressal Commission has held that a manufacturing defect is something without which the car cannot function.
2. In thecase of Fiat India Pvt. Ltd. Vs. Syed Hasan and Ors. [2014 SCC Online NCDRC 659] and Ajay Sharma Vs. Sanya Motors and Anr.[2012 SCC Online NCDRC 264], the Hon’ble National Consumer Disputes Redressal Commission has held that a manufacturer can only be held liable in cases of manufacturing defect.
3. In the case of Kumari Namrata Singh V. Manager Indus and Ors. [2012 (95) ALR 829] and Md. Hassan Khalid Haidar Vs. General Motors India Pvt. Ltd.[2018 SCC Online NCDRC 667].  In Bridgestone India Pvt. Ltd. Vs. LiyakathaliKormath, 2016 SCC Online NCDRC 1822, the Hon’ble NCDRC has held that the onus to prove that the tyre which had got burst suffered from a manufacturing defect, solely lies on the complainant.
4. In the case of New India Assurance Co. Ltd. V. Mrunal Makarand Patwardhan, 2023 SCC Online Bom 669, the Hon’ble High Court held that bursting of tyres is an act of human negligence wherein either the driver does not fulfil his duty to check the condition of tyres before driving or drives it in such a manner that leads to a tyre burst.
5. In the case of Honda Cars India Ltd. Vs. Sudesh Berry&Ors. Civil Appeal No.6802/2021 and the Hon’ble Maharashtra State Commission in Rehab Housing Pvt. Ltd. V. BMW Germany and Ors CC/10/136.
6. In the case of HyundaiMotor India Ltd. Vs. Er. Gopal K. Sahai [(2009) CPJ131 (NC)], the Hon’ble National Consumer Disputes Redressal Commission held that total replacement of the vehicle or payment of the value of the vehicle is not allowed, rather only the parts which have manufacturing defects can be replaced.

Accordingly, the O.P no.1 through his written version has prayed to dismiss the complaint petition as filed and to pass any other order as deemed fit and proper in the interest of justice.

O.P no.2 has filed written version wherein it is urged that the complaint petition is misleading, vexatious and unsustainable in the eye of law and is based upon false and baseless matters.  O.P no.2 has prayed for dismissal of the complaint petition as filed which suffers from mis-joinder of the parties also.  O.P no.2 has denied about any defective wheel alignment or about any manufacturing defect in the vehicle of the complainant.  According to O.P no,2, the out-come of bursting of tyre depends upon the style and manner of the driving of the driver in rash and negligent way and also by driving the vehicle in potholes and not navigating the vehicle properly.  O.P no.2 disbelieves the contention of the complainant as made that she had paid Rs.22,000/- for purchasing a tyre for her car at Vijayawada.  Thus in toto, according to O.P no.2, there was no deficiency in service and as such, the complaint petition is liable to be dismissed with cost.

The O.P no.3 through it’s written version admits about the purchase of the BMW 220i MM Sports vehicle from O.P no.2 by the complainant but the allegation as made by the complainant regarding the defective wheel alignment is disbelieved by O.P no.3.  O.P no.3 has also stated that there was no such manufacturing defect in the said vehicle of the complainant.  According to O.P no.3, on 24.4.2022 at about 5.30 A.M the road side assistance was provided to the complainant thereby enabling her to replace the spare wheel in exchange of the flat tyre so as to enable the vehicle of the complainant to be driven to the nearby BMW workshop.But the said day being a Sunday, the workshop of BMW was closed at Vijayawada.  As such, there is no deficiency in service as alleged by the complainant.  When being suggested to wait till Monday, the complainant left the workshop of O.P no.3 on 24.4.2022 at 9.30 A.M by using the spare wheel of her vehicle.  Thus, the allegation of deficiency in service as made by the complainant is completely vague and baseless and it is urged by the O.P no.3 to dismiss the complaint petition with exemplary cost.

3.       Keeping in mind the averments as made in the complaint petition and the contents of the written versions of all the three O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of O.Ps?

iii.        Whether the complainant is entitled to the reliefs as claimed by her?

Issue no.ii.

Out of the three issues, issue no.ii being the pertinent issue, is taken up first to be considered here in this case.

After perusing the complaint petition, the written versions, the written notes of submissions as filed, evidence affidavits as filed by the O.Ps as well as the documents available in the case record, it is noticed that infact the complainant had purchased a Sedan model BMW car for a price of Rs.39,60,600/-  on 31.3.2022.  It is the case of the complainant that on 23.4.2022 she had started her journey with her family members from Bhubaneswar to Bangalore but on 24.4.2022 the left side front tyre of her said car had bursted.  Due to such exigency she had contacted the O.Ps as well as the nearest dealer at Vijayawada.  But since because 24.4.2022 was a Sunday and the service centre at Vijayawada was closed, she was asked to wait till Monday but she preferred to purchase a tyre from the local market by paying a sum of Rs.22,000/- from her own pocket and had resumed her onward journey.  Subsequently, while the complainant alongwith her family members were proceeding from Bangalore to Coorg on 30.12.2022 again the same left side front tyre had bursted and again for the third time on 31.12.2022 the same left side front tyre of her vehicle had bursted for which she had requestedthe O.Psto replace her vehicle which according to her opinion, is a defective one. 

The O.Ps have harped in many ways in order to counteract the allegations as made by the complainant in this case.  It is the plea from the side of the O.Ps that though the complainant has stated to have purchased a tyre by spending Rs.22,000/-, there is no iota of evidence in that regard and no money receipt to that effect has been filed so as to prove her such statement.  The O.Ps have contended that at Vijayawada the complainant had managed to proceed ahead in her vehicle by using the spare wheel which was provided to her alongwith her vehicle.  On the subsequent two occasions when the left side front tyre was bursted, the O.Ps had taken care of such incidents promptly.  Now the question is, as to how on three consecutive occasions, the left side front tyre of the car of the complainant was bursting which tilts our eye brows.  The plea of the O.Ps that the reason thereof may be the outcome of style and manner of driving of the driver in rash and negligent way which was not inconsonance with the road safety rules and by ignoring the potholes.  In this context the O.P no.1 has relied upon the case of New India Assurance Co. Ltd. Vrs. Mrunal Makarand Patwardhan 2023 SCC Online Bom669 wherein the Hon’ble High Court has held that bursting of tyres is an act of human negligence wherein either the driver does not fulfil his duty to check the condition of tyres before driving or drives it in such a manner that leads to a tyre burst.  Keeping such findings of the Hon’ble High Court in mind while analysing the facts and circumstances of the present case, it is noticed that the facts and circumstances of the present case differs from that of the case as relied upon by the O.P no.1.  The driver of the BMW Sedan car of the complainant Saismita Ray was her husband.  The car of the complainant was undoubtedly a new one and thus the tyres fitted thereto were all new.  There is no evidence led from the side of the O.Ps that the driver of the car of the complainant had notchecked the condition of the tyres prior to driving the vehicle.  There is also no evidence made by the O.Ps so as to apprise this Commission that the driver of the said car had driven it in a negligent manner thereby failing from his duty and had rather been negligent in driving thereby leading to a tyre burst.  Moreso, there is no plea taken by the O.Ps that if the driver of the said vehicle was lacking a proper drivinglicense to drive the said vehicle or if the driver while driving the said vehicle was negligent in such a manner for which such tyre burst had happened and that to particularly for the same left side front tyre on three consecutive occasions.  And no person who owns a new car of a top brand and class would drive it in a negligent manner when he drives the same having his own family there in so as to endangerthe life and safety of his own inmates and to cause tyre-burst.Such allegation thus as made by O.P no.2 here in this case do not sustain due to lack of any cogent evidence to that aspect and this Commission cannot simply jump to a conclusion basing upon such conjectures and surmises that on all the three occasions the left side front wheel tyre had bursted due to the rash and negligent manner of driving by the driver who, here in this case is the husband of the complainant.  Hence, such allegation as made by the O.Ps is absolutely without any basis and do not help the O.Ps  in this case in any manner. 

Each time the complainant was put to trouble due to such unprecedented situation while she was traveling with her husband and kids and her journey was disrupted each time for such incident of tyre burst of the same frontside left tyre of her vehicle on three consecutive occasions.  The claim of the O.Ps that they had provided services to the complainant on each of the three occasions do not suffice here in this case since because within a very short span of time, the particular left side front tyre of the complainant was bursting thereby putting the complainantand her family in immense trouble and there is no plausible explanation put forth from the side of the O.Ps in this regard.  As such, keeping the facts and circumstances of the case in mind, this Commission comes to an irresistible conclusion that infact there is deficiency in service on the part of the O.Ps as alleged by the complainant by putting her in trouble causing disruption in her journeys on each of the three occasions without providing a permanent solution particularly when the vehicle of the complainant is a new one..  Accordingly, this issue is answered in favour of the complainant.

Issues no.i& iii.

From the discussions as made above, the case of the complainant is definitely maintainable and the complainant is also entitled to the reliefs as claimed by her but to a reasonable extent only.  Hence, it is so ordered;

                                              ORDER

The case is decreed on contest against the O.Ps who are found to be jointly and severally liable here in this case.  Since there is no further complaint being made by the complainant while the trial was being conducted before this Commission as regards to her aforesaid vehicle till date, it would thus be proper to direct the O.Ps to pay the complainant a sum of Rs.1,00,000/- only towards compensation for causing mental agony and harassment to her and alsoto pay another sum of Rs.25,000/- towards the cost of her litigation.  This order is to be carried out within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 4^th day of March,2024 under the seal and signature of this Commission.         

                                                                                             Sri Debasish Nayak

                                                                                                   President

 

 

                                                                                        Sri Sibananda Mohanty

                                                                                                           Member