Order No. 18 dt. 16/11/2017
The case of the complainant in brief is that the complainant believing and relying upon goodwill of Ford India Pvt Ltd. booked a Ford Fiesta Titanium Plus Kinetic Blue colour car. The vehicle was purchased from o.p.2 in order to purchase the said vehicle the complainant took loan of Rs.7,00,000/- from ICICI Bank with the condition to repay the same by paying EMI @ 15,046/-. On 12.05.2013 evening while the complainant was travelling within Howrah District suddenly the car stopped its functioning before reaching the destination. The complainant’s husband with the assistance of some local people pushed the car near a petrol pump. On the next day the car was taken to o.p.2 after examination it was told that the engine of the car is required to be changed and to change the engine claim under warranty will be available. The complainant thereafter informed by o.p.2 through email that the defect caused owing to drive the car in a heavy water logging area and refused to repair the said vehicle without providing the benefit to the complainant as envisaged in the terms and conditions of the warranty. The complainant regularly paid the EMI but she could not avail the service of the said vehicle. The complainant thereafter sent a lawyer’s notice asking the o.ps either to repair or to replace the car since the defect arose within the warranty period. In response to the said letter one Mr Chandana DRC of Ganges Ford Pvt Ltd. informed the complainant that as per the warranty clause damages due to water logging there could be the major damaged in the engine. As per the warranty clause damages due to water logging could not be covered under the warranty period. Accordingly it was informed that for removing such defect the complainant bear the expenses and the o.p.2 informed that for repairing of the said defect complainant will have to bear the expenses Rs.50,407/-. Since the defect arose within the warranty period the complainant denied to bear the said expenses Because of such misunderstanding between the parties the car is still lying in the garage of the o.p.2 On the basis of the facts as mentioned here in above the complainant filed this case praying for direction upon the o.ps to pay a sum of Rs.15,50,000/- on account of loss and compensation.
The O.p.1 did not contest the case and as such the case has proceeded ex-parte against them. The o.p.2 contested the case by filing w/v and denied all the material allegations of the complaint. It was stated that the car was brought to the workshop on 13.05.2013 by BT Towering Van. The complainant informed that suddenly the car engine was not getting off while running through water on the road, after that the car could not be started again. On initial examination of the car it was found that the engine was hydro-locked. At that time as per car symptom the answering o.p. understood that the car was driven through water logged road where water level was beyond the specified limit as per ford owners manual depicts: Driving through water.
Drive through water in an emergency only and not as per of normal driving
Engine damage can occur water enters the air filter.
In an emergency situation, the vehicle can be driven through water to a maximum depth of 200 mm (8 inches) and at a maximum speed of 10 KM ( 6 mph), extra caution should be exercised when driving through water.
Since the complainant did not follow the direction of the manual such problem arose. During the said period various customers had the same problems which were rectified and they were using the cars in normal way. In view of such fact the o.p. stated that there was no deficiency in service on the part of the o.p.2 thereby the answering o.p. prayed for dismissal of the case.
On the basis of the pleadings of the respective parties following points are to be decided:-
- Whether the complainant purchased the vehicle from the o.p.2?
- Whether there was any manufacturing defect in the said vehicle?
- Whether the complainant suffered deficiency in service due to fault on the part of the o.ps?
- Whether the complainant will be entitled to get any relief as prayed for?
Decision with reasons:-
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. Lawyer for the complainant argued that the complainant believing and relying upon goodwill of Ford India Pvt Ltd. booked a Ford Fiesta Titanium Plus Kinetic Blue colour car. The vehicle was purchased from o.p.2 in order to purchase the said vehicle the complainant took loan of Rs.7,00,000/- from ICICI Bank with the condition to repay the same by paying EMI @ 15,046/-. On 12.05.2013 evening while the complainant was travelling within Howrah District suddenly the car stopped its functioning before reaching the destination. The complainant’s husband with the assistance of some local people pushed the car near a petrol pump. On the next day the car was taken to o.p.2 being the authorized service centre after examination it was told that the engine of the car is required to be changed and to change the engine claim under warranty will be available. The complainant thereafter informed by o.p.2 through email that the defect caused owing to drive the car in a heavy water logging area and refused to repair the said vehicle without providing the benefit to the complainant as envisaged in the terms and conditions of the warranty. The complainant regularly paid the EMI but she could not avail the service of the said vehicle. The complainant thereafter sent a lawyer’s notice asking the o.ps either to repair or to replace the car since the defect arose within the warranty period. In response to the said letter one Mr Chandana DRC of Ganges Ford Pvt Ltd. informed the complainant that as per the warranty clause damages due to water logging there could be the major damaged in the engine. As per the warranty clause damages due to water logging could not be covered under the warranty period. Accordingly it was informed that for removing such defect the complainant bear the expenses and the o.p.2 informed that for repairing of the said defect complainant will have to bear the expenses Rs.50,407/-. Since the defect arose within the warranty period the complainant denied to bear the said expenses Because of such misunderstanding between the parties the car is still lying in the garage of the o.p.2 On the basis of the facts as mentioned here in above the complainant filed this case praying for direction upon the o.ps to pay a sum of Rs.15,50,000/- on account of loss and compensation.
Ld. Lawyer for the o.p.2 argued that the car was brought to the workshop on 13.05.2013 by BT Towering Van. The complainant informed that suddenly the car engine was not getting off while running through water on the road, after that the car could not be started again. On initial examination of the car it was found that the engine was hydro-locked. At that time as per car symptom the answering o.p. understood that the car was driven through water logged road where water level was beyond the specified limit as per ford owners manual depicts: Driving through water
Drive through water in an emergency only and not as per of normal driving
Engine damage can occur water enters the air filter.
In an emergency situation, the vehicle can be driven through water to a maximum depth of 200 mm (8 inches) and at a maximum speed of 10 KM ( 6 mph), extra caution should be exercised when driving through water.
Since the complainant did not follow the direction of the manual such problem arose. During the said period various customers had the same problems which were rectified and they were using the cars in normal way. In view of such fact the o.p. stated that there was no deficiency in service on the part of the o.p.2 thereby the answering o.p. prayed for dismissal of the case.
Considering the submissions of the respective parties it is an admitted fact that complainant purchased a car from the o.p.2 After purchase the complainant took all steps for registration and after compliance of all the initial formalities started to drive the car. It has been mentioned by the complainant in the complaint petition that on 12.05.2013 while the said car plying on road the car stopped its functioning. On the next day the car was taken to o.p.2. On examination of the car by o.p.2 it was informed to the complainant that the repairing would be done without asking for any money for such repairing since the defect arose in the said car during the warranty period. But unfortunately after some days the complainant was informed by o.p.2 that engine is required to be thoroughly repaired which does not come within the warranty clause and an amount of Rs.50,407/- was asked by the o.p…2 for repairing of the car but the complainant did not agree to the said proposal. Subsequently the complainant took up the matter with the o.p.1 who informed the complainant that due to driving of the car through the water logging road such complication arose which cannot be compensated by the o.p.1. It is an admitted fact that after submitting her representation to the o.ps praying for repairing of the car or replacement of the car which was not accepted by the o.ps resulting in filing of this case. In order to prove the replacement of the car the complainant must prove that there was manufacturing defect in the said car. In order to substantiate the said allegation the complainant could have filed a petition praying for appointment of an expert for examination of the car and to that effect the complainant ought to have filed the said petition for appointment of an expert to examine the car. But no such step was taken by the complainant and it is an established fact that in order to prove the manufacturing defect of any car the opinion of an expert is sine-qua-non. It should be borne in mind that the obligation of the manufacturer under the terms of the warranty is limited to repair of the vehicle. In this respect we can rely on the case of Maruti Udyog Ltd – Vs – Sushil Kumar Gabgotra and another I (2006) CPJ3 SC, where in the Apex Court inter alia held that obligation of manufacturer under warranty only to repair or replace any part found to be defective – Necessary repair and replacement of components carried out free of charge during warranty period and therefore, High Court (J&K, High Court) was not justified in directing replacement of vehicle.
From the materials on record it is crystal clear that the complainant after taking loan from the Bank purchased the said car and she has also paid the regular EMI. The o.p.2 by raising the point that the car was driven through water logged road and for that reason the water entered the air filter. It is relevant to mention here that o.p.2 in order to high light such defect took several days and ultimately demanded the said amount i.e. Rs.50,407/- which was refused to pay by the complainant since the car faced such defect during the warranty period. The owner’s manual provided to the complainant at the time of purchase of the car stated that the precautionary measures a car owner should adopt during driving of car through water that cannot debar the purchaser of the car to get benefit of the warranty period. It is an admitted fact that during the warranty period the said defect arose and by replacement of some parts the engine could have become effective and the car could have run in normal way. By demanding Rs.50,407/- from the complainant within a few days from the date of purchasing of the car particularly when the warranty period was in force the denial of the repairing of the defect by the o.p.2 and further demand of money from the complainant established the fact that there was deficiency in service on the part of the o.p.2. The inaction on the part of the o.p.2 established the claim of the complainant that she should be compensated for the loss sustained by her. Accordingly the complainant will be entitled to get relief against the o.p.2.
Thus all the points are disposed of accordingly.
Hence, it is ordered,
that the case no.542/2014 is allowed exparte against o.p.1 and allowed on contest against the o.p.2 with cost. The o.p. 1 & 2 are jointly and / or severely directed to repair the car of the complainant without asking for any charge and also to pay to the complainant compensation of Rs.1,00,000/- (Rupees one lakh) only for harassment and mental agony along with litigation cost of Rs.5,000/- (Rupees five thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
