BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 30^th day of August 2014

Filed on : 18-09-2012

PRESENT:

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.573/2012

Between

Antony Tharian, : Complainant

S/o. Late T.V. Tharian, (By Adv. C. Varghese Kuriakose,

Thachil house, Chakkalayil, Opp. Lulu Cinema,

Karshaka road, Vaduthala, Chittoor road, Ernakulam,

Kochi-682 023. Cochin-682 018)

And

1. BMW Sales Office, : Opposite parties

Bayerische Motoren Werke AG,

Petuelring 130, D 80788 Munich,

Germany.

2. BMW India Ltd., Building No. 8, (1^st&2^nd O.P. by Adv. Shyam Prashanth

Tower B, 7^th Floor, DLF Cyber City, M/s. Menon and Pai Advocate,

Phase-11, Gurgaon, I.S. Press road, Kochi-18)

Haryana -122 001.

3. M/s. Platino Classic Motors (3^rd o.p.party-in-person)

(India) Pvt. Ltd., NH 47,

Bye Pass Road, Maradu (P.0),

Cochin-682 304.

O R D E R

A. Rajesh, President.

The case of the complainant is as follows:

On 11-02-2010 the complainant purchased a car from the 3^rd opposite party at a price of Rs. 25,92,989/- which was manufactured by the 1^st and 2^nd opposite parties. Right from the day one onwards, the

complainant was experiencing stiffness and hardness on the steering. This was reported to the opposite parties, they opined that the stiffness is in built as a safeguard so that the steering rod will not slip from the hand of the driver. The matter was reported to the service personnel at the time of first service. They would offer that the situation would change by the second service. The vehicle has been taken to the 3^rd opposite party for 2^nd service on 18-06-2012. The complaint was reported to the 3^rd opposite party at that time also. The 3^rd opposite party has charged a sum of

Rs. 61,829/- as service charges. The vehicle was redelivered to the complainant on 19-06-2012 and the complaint regarding stiffness of the steering has aggravated further. They gave an explanation that stiffness of the steering is a character of the vehicle. The stiffness problem not only did change but also aggravated day by day. With a view to resolve the dispute the complainant caused to issue a lawyer notice to the opposite parties. Despite service of notice, they have not taken any steps. Thus the complainant is before us seeking direction against the opposite parties to cure the defect of stiffness of the steering immediately and to pay a compensation of Rs. 10 lakhs and Rs. 1 lakh towards costs of the proceedings and in case the opposite parties are not in a position to rectify the defect, the complainant is seeking direction against the opposite parties to replace the vehicle with a new one together with a compensation of Rs. 5 lakhs. This complaint hence.

2. The version of the opposite parties 1 and 2.

The complainant’s car was manufactured by the 2^nd opposite party and was sold to the complainant by the 3^rd opposite party. There is no

relationship of a consumer between the 1^st opposite party and the complainant. The complainant purchased the car on 11-02-2010 and for the 1^st time he complained to the 3^rd opposite party, the stiffness in the

steering of the car, after the expiry of the warranty. The car in question is fitted with hydraulic power steering system and slight hardness in the steering as compared to the Electronic steering system is a normal characteristic. Though the steering is softer in the electronic steering system when the car is stationary and at slow speeds, there is no difference in the maneuverability or handling of the cars fitted with either of the system. The complainant has no cause of action against the opposite parties 1 and 2 and the complaint is liable to be dismissed.

3. The defense of the 3^rd opposite party is as under.

The complainant purchased the car from the 3^rd opposite party. The complainant approached the 3^rd opposite party with a request to loosen the

steering to suit his driving style. Technicians of the 3^rd opposite party had explained to the complainant that the vehicle is fitted with Hydraulic Power Steering System and that altering it would compromise the safety features in built in the vehicle. The 3^rd opposite party had further explained to the complainant that the “hardness in steering” is a normal characteristic feature of the vehicle that sets it apart from comparable vehicles fitted with an Electronic Power Steering System. The problem of stiffness is not a defect but a character of such high class vehicle fitted with hydraulic steering system. The complainant is not entitled to get any of the reliefs as prayed for.

4. No oral evidence was adduced by the complainant. Exbts. A1 to A4 were marked. The witnesses for the opposite parties 1 and 2 were examined as DWs 1 and Exbts. B1 to B6 were marked on their side. Neither oral nor documentary evidence was adduced by the 3^rd opposite

party. Expert commissioners report was marked as Exbt. C1. Heard the parties.

5. The points that arose for consideration are as follows:

i. Whether the complainant is entitled to get the defect of the vehicle

cured?

ii. Whether the complainant is entitled to get replacement of the

vehicle?

iii. Whether the opposite parties are liable to pay compensation and

costs of the proceedings to the complainant?

6. Point Nos. i to iii. It is not in dispute that on 11-02-2010 the complainant purchased a BMW car from the 3^rd opposite party which was manufactured by the 1^st and 2^nd opposite parties. 24 months warranty has been provided by the opposite parties for the vehicle evidenced by

Exbt. B3 warranty terms and conditions. According to the complainant time and again he had to approach the 3^rd opposite party to get the stiffness of the steering wheel rectified, but they failed to rectify the same for their own reasons. The opposite parties maintain that the stiffness of the steering is not a defect but a character of such high class vehicles fitted with hydraulic steering system. The learned counsel for the 1^st and 2^nd opposite parties relied on the following decisions cited by the Apex Judiciary.

a. Indian Oil Corporation Vs. Consumer Protection Council, Kerala

(1994) 1 Supreme Court Cases 397.

b. Maruti Udyog Ltd. V. Arjun Singh & Anr. III (2009) CPJ 22 (NC)

c. Hero Honda Motors Ltd. v. K.v. Muraleedharan & Anr. II (1994)

CPJ 27 (NC).

d. Maruti Udyog Ltd. v. Nagendra Prasad Sinha & Anr. II (2009) CPJ

295 (NC).

e. Ishwar Rawat Vs. Haryana Urban Development Authoritty & Ors.

II (2008) CPJ 351 (NC)

f. Shri. Vithalbhai Valajibhai & Anr. Vs. Patil Nanjibhai Khodabhai

Kayad (1993) 1 CTJ 599 (SCDRC)

g. Sushila Automobiles Pvt. Ltd. Vs. Dr. Birendra Narain Prasad and

Ors ( MANU/CF/0076/2010)

h. Maruti Udyog Ltd. V. Susheel Kumar Gabgotra and Anr. (AIR 2006

SC 1586).

7. During the proceedings in this Forum at the instance of the complainant an expert commissioner was deputed from this Forum. The expert commissioner’s report was marked as Exbt. C1. The conclusion of the expert commissioner in Exbt. C1 is as follows:

“After inspecting the complained vehicle and another vehicle of same specifications, I am of the opinion that steering tight and handing of both the vehicle are the same”. Nothing is on record to conclude that the vehicle suffers from manufacturing defect. The complainant who appeared in person submitted that there is a risk element involved while overtaking vehicles on account of the stiffness of the steering. We may not lose sight of the above genuine submission of the complainant. We think that a direction to the opposite parties to examine the vehicle and do the needful is enough to abate the agony of the complainant, especially in view of the findings of the Law of the Land in ( C.N Anantharam Vs. M/s. Fiat India Ltd. AIR 2011 SC 527).

8. The Hon'ble Apex court in C.N. Anantharam Vs. M/s. Fiat India Ltd. (Supra), stated in Para 5 as under :

“In the said order, the National Commission held as follows :

.......Therefore, while we hold that the complainant has not been able to prove any manufacturing defect, all the same, the dealer and the manufacturer are directed to remove the defect, if any, in the vehicle make it roadworthy, if necessary by reconditioning the vehicle and deliver it to the complainant in the presence of an independent technical expert mutually agreed upon by the complainant and opposite parties and for this purpose any of the party may apply to the District Forum for appointing such expert if it is not mutually agreed upon by the parties. The expert shall certify that the vehicle is free from any defect which shall be final for all purposes. This should be done within a period of three months. The opposite parties, thereafter, to provide a warranty for one year from the date of delivery, the revision petitions are accordingly disposed of in these terms. Under the peculiar facts of the case, there would be no order for costs.

Thereafter, the petitioner filed the instant special Leave petitions challenging the order of the National Commission.”

Further, the Apex Court held in paragraph 16 and 17 as follows :-

“16. In such circumstances, the order passed by the National Commission impugned in these Special Leave Petitions does not appear to be unreasonable whatever reason, except for a mere 800 kilometers the Petitioner has not used the vehicle after it was delivered and has, on the other hand, made several complaints in an attempt to prove that there were manufacturing defects in the vehicle. The National Commission has taken all these matters into consideration in giving the impugned directions regarding delivery of the vehicle to the petitioner after having the same properly checked by an independent technical expert who would have to certify that the vehicle was free from any defect when it is delivered.

17. From the facts as disclosed, it appears that apart from the complaint relating to noise from the engine and the gear box, there was no other major defect which made the vehicle incapable of operation, particularly when the engine was replaced with a new one. However, in addition to the directions given by the National Commission, we direct that if the independent technical expert is of the opinion that there are inherent manufacturing defects in the vehicle, the petitioner will be entitled to refund of the price of the vehicle and the life time tax and EMI along with interest @ 12% per annum and costs, as directed by the State Commission.”

We respectfully agree with the law laid down by the Apex Judiciary in the cases cited by the learned counsel for the opposite parties 1 & 2. However since, we rely on the above pronouncement of the Hon’ble Supreme Court we need not rely on the same. We refrain from considering the other reliefs sought for by the complainant in the absence of any evidence.

9. In the result, we partly allow the complaint and direct that the opposite parties shall take necessary steps in tune with the direction of the Hon’ble Supreme court in C.N. Anatharam Vs. M/s. Fiat India Ltd. (Supra) within 45 days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 30^th day of August 2014.

Sd/-

A. Rajesh, President.

Sd/-

Sheen Jose, Member.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order,

Senior Superintendent.

Appendix

Complainant’s exhibits :

Ext. A1 : Copy of lawyer notice dt. 18-08-2012

A2 : A.D. card

A3 : Tax invoice dt. 17/08/2012

A4 : Copy of letter dt. 17-07-2012

C1 : Commission report

Opposite party’s exhibits :

Ext. B1 : Copy of certificate dt.16-04-2014

B2 : Copy of certificate dt. 31-03-2009

B3 : Copy of warranty

B4 : Copy of letter dt 27-01-2012

B5 : Copy of job card

B6 : Copy of letter dt. 17-09-2012

Depositions:

DW1 : Ishaan Khatri