By Smt. Padmini Sudheesh, President:
The case of complainant in brief is that the complainant purchased Ford Fiesta car from 7th respondent and the vehicle was insured with 8th respondent insurance company. The complainant was using the car for travelling from Thrissur to Kottayam and then to Moolavattam via Kollad on 23/6/07 along with another person by name Kora and driver Sri.Shibu. On that particular day the road was submerged in flooded rain water because of unprecedented incessant rain. On account of heavy flooding of the road the normal route was avoided and diverted route was adopted as guided by the police personnel available. The complainant has seen that other vehicles like Maruthy car, Ford Ikon, Lanzer, Elandra etc. and other heavy vehicles are driven through the water logged routes at Kollad. On the way while the vehicle was put to use on road the car stopped suddenly on the flooded road and failed to restart and further running of the vehicle ceased inspite of all efforts to restart the same. The vehicle was physically removed to the road side in an elevated place with the assistance of local people. The complainant informed the incident to 7th respondent over phone. As directed by 7th respondent the complainant contacted 6th respondent. 6th respondent deputed few of their employees to check the vehicle and restart the same. Since their efforts were found futile they requested the complainant to arrange for Crane to draw the car to the 6th respondent garage. The incident was promptly intimated to 8th respondent for further action. The complainant returned to the residence in Thrissur by another means. The complainant used to enquire about the progress of repair and a few days after 6th respondent informed that the engine of the car required substantial repair works and they have entrusted the same to a local workshop in Kottayam. This was done without the consent of complainant. After few days 6th respondent informed that the engine failed inspite of the repairs carried out by the local work shop and vehicle was further entrusted to another work shop. It was also informed that the exhaust of engine in all Fiesta cars is at the bottom portion of the engine unlike other vehicles and this appears to be the main defect of the engine and the manufacturers have not foreseen any preventive measures to check the inflow of water to engine when it comes into contact with water and it is a manufacturing defect. It is also informed by 6th respondent that they are making arrangements to alter the position of exhaust or replacement of engine. The complainant raised protest against these actions. The vehicle was also entrusted to another local work shop when contacted with 6th respondent. The complainant was not allowed to see the vehicle and 6th respondent concealed the address of workshops. The complainant was purchased the vehicle in HP scheme of HDFC. He was repaying the regular instalments in order to avoid penal interest and legal action. It is incorrect to say that the vehicle was ready in their work shop on 14/8/07 and they had duly informed this fact. The complainant or Mr.Kora had not received any bills from 6th respondent. The respondent had played an illegal trade practice by supplying the vehicle having inherent manufacturing defect. Hence the complaint.
2. The counter averments of 5th, 6th and 7th respondents are that these respondents are the authorized dealers cum service center of Ford Fiesta cars that are manufactured by 1st respondent. The complainant took delivery of the vehicle from the local office of 7th respondent in Thrissur. These respondents admitted that the complainant was accompanied by Mr.Kora and driver Shibu on 23/6/07. It is also admitted that on 23/6/07 the roads at the place of incident were submerged in flooded rain water because of unprecedented incessant rain. It is true that the complainant had informed 7th respondent over phone regarding the said incident. 7th respondent advised him to contact their counterpart namely 6th respondent for immediate assistance. The 6th respondent as per the request of complainant and as instructed by 7th respondent deputed its expert technicians to attend the incident and check the vehicle at the spot where it was lying, 6th respondent found that the vehicle could not be started as the flooded water from the road had entered into the engine and other parts of the vehicle as a result of driving the vehicle through the road which was submerged in flooded water due to heavy rain on the said day. The vehicle therefore towed to their service centre in Kottayam with the help of Crane. The complainant there after left the authorized service centre in Kottayam. 6th respondent after inspecting the vehicle found that the engine of the vehicle required substantial repair works. The said information was given to complainant. It was also informed that damage was caused due to driving the vehicle through flooded water and as a result of water entering into the engine, the repairs would not be covered under the warranty provided and that he will have to pay for the same. The estimated cost for the repair work was also informed to him. The repair works were started only after getting the confirmation from complainant. The break down of vehicle was due to Hydrostatic lock while driving the vehicle through water logged roads. It is incorrect and denied that 6th respondent informed complainant that they are entrusted the vehicle to a local workshop for further works like engine repair works etc. It is also denied that 6th respondent informed the complainant that the engine failed in respect of the repair carried out by local workshop. These respondents are not the manufacturer of the engine and they cannot make any arrangements to alter the position of the engine or other parts in the vehicle. The vehicle was never entrusted to any other local workshop as alleged by complainant. The vehicle was always at the service centre of 6th respondent. All the repair works were done with the prior permission of complainant. After completing the repair work the respondent informed the customer over telephone and also informed the approximate amount. But the complainant never turned up to take delivery of the vehicle. The vehicle is presently lying in the service centre of 5th respondent in Kottayam after all repairs since 14/8/07 in a perfect condition. The same was communicated by registered letter. The engine of the vehicle has no defect and the break down of the vehicle happened solely due to rushing in of water into the engine and other vehicle parts. It was because of the complainant driving the vehicle through water logged road that resulted in Hydrostatic lock. There is no deficiency in service from the part of these respondents. Hence dismiss.
3. Counter averments of 8th respondent are that this respondent admits that this respondent has issued a policy to the vehicle in the name of complainant for a period from 19/1/07 to 18/1/08. This respondent is an unnecessary party in the complaint. This respondent has not repudiated the claim. As soon as the claim is reported this respondent conducted investigation by deputing surveyor and he has submitted the report stating that the water entered into the engine while driving the vehicle through the flooded road and assessed the loss to the tune of Rs.42,780/-. Willful negligence is committed by complainant in driving the vehicle through the flooded road. This respondent sent letter to complainant requesting necessary documents, but no reply was send. Another letter was also sent requesting the documents and if no documents are received the claim will be closed as no claim. The complainant sent a reply also. The complainant alleges mechanical defect and negligence against other respondents for which this respondent is not liable to pay any compensation. No deficiency in service is committed by this respondent.
4. Other respondents remained exparte.
5. Points for consideration are that :
1)Whether there was any deficiency in service committed by espondents ?
2) If so reliefs and costs ?
6. Evidence consists of oral testimonies of PW1 to PW3 and RW1, Exhibits P1 to P14, Exhibits R1 to R20, Exhibits X1 & X2 and Exhibits C1 and C2 series.
7. The complaint is filed for replacement of the vehicle or repayment of cost of the vehicle.
8. The complainant purchased a Ford Fiesta car and took delivery of the vehicle from 7th respondent. It is the case that on 23/6/07 while the complainant was using the car for travelling from Thrissur to Kottayam and then to Moolavattam via Kollad along with another person by name Kora, road was flooded with water and it was seen that other vehicles are driven through the water logged road. Llikewise this car was also used. But on the way the vehicle stopped suddenly in the flooded road and failed to restart. It was physically removed to the road side. The complainant intimated the incident to 7th and 6th respondents and it is the case that the vehicle was taken to the workshop of 6th respondent in Kottayam. The complainant alleging that the work was done not at authorized service centre of Kairali Ford but at local workshops and the places were concealed from him. It is the definite case that the engine required heavy repair work in spite of getting the engine replaced 6th respondent entrusted the vehicle at local workshops for repair again and again without the consent of complainant. So the complainant wants replacement of the vehicle with new one or in an alternative to get back the purchase price of the vehicle with all incidental expenses. The respondents 5 to 7, the authorized dealers cum service center of Ford Fiesta cars filed detailed version. They have admitted that the water logged situation of the road and appointment of expert technicians to attend the break down. It is their version that on checking the vehicle at the spot where it was lying 6th respondent found that the vehicle could not be started as the flooded water from road had entered into the engine and other parts of the vehicle as a result to drive through the road which was submerged in flooded water due to heavy rain on the said day. It is their case that the vehicle was repaired at their service centre only and no repairing work carried out by local workshop as alleging by complainant. These respondents would say that the vehicle is lying in the service centre of 5th respondent in Kottayam after all repairs since 14/8/07 in a perfect condition but complainant refused to take delivery of the same.
9. The complainant is examined as PW1 and Exhibits P1 to P14 documents are marked through him. It is his version that before the said incident the vehicle has no defect and it did not stop while driving. He is very much satisfied with the performance of the vehicle before the incident. It is the version of PW1 that he does not know the reason for stopping of vehicle while driving. He also does not know the instruction in owner’s manual regarding the driving of the vehicle in deep water. Exhibit R15 contains some relevant pages of owner’s manual in which it is stated that “never drive through water when it flows above the bottom portion of the bumber or above the tyre centre lying. It is also stated that does not attempt to start the engine if the car is flooded”. So there is strict instruction restraining the vehicle from driving the water logged road. The complainant has not stated the level of water in the complaint. According to him he was seen that other vehicles like Maruthy, Lanzer etc. are going through the flooded road and likewise they also driven the vehicle. The people cannot drive the vehicle by measuring the water level on the road. It is true that PW1 failed to produce the owner’s manual. He has no case that owner’s manual was not provided to him. At the same time Exhibit R15 is not opposed by him by stating that no specimen owner’s manual produced and some sheets are produced.
10. It is the case of PW1 that the vehicle was repaired at the local workshops also. During examination he has stated that the vehicle was repaired in another workshops in addition to the workshop of 6th respondent, and those workshops visited by him also. It is his statement that the vehicle was taken to Popular Engineering on the 3rd time. According to him firstly the vehicle was taken to the workshop of Kairali and secondly it was taken to a workshop which has no name and thirdly it was taken to Popular Engineering. He categorically denied the version of respondents 5 to 6 that
the vehicle was repaired only at 6th respondent. In this circumstances the case of PW1 about the repair of vehicle at local workshops to be believed. It is true that no document is produced to show the same and there is also no chance for any document. It is against the terms and conditions of purchase and the vehicle should be repaired at the authorized service centers. The respondents 5 to 7 have the case that they were the authorized dealers and service centres and vehicle was repaired at their service station.
11.According to complainant the mechanic George told him that three times engine was repaired by dismantling. It is also deposed in the box that since three times the engine was dismantled and repaired he is not willing to take back the vehicle. But George is not examined before the Forum.
12. Exhibit X1 is the report of expert commissioner who had inspected the vehicle on 4/10/08. According to him the engine work overhauling in partial is done. He also reported that the vehicle as such is not fit for ready delivery. The present condition of the vehicle is not advisable for immediate use. He has also reported that to have an effective use of the vehicle the engine performance level has to be improved by effecting complete overhauling or by replacing the engine. So it can be realized that at that time the engine was not replaced. But the Kairali Ford had intimated the complainant in 2007 itself that the vehicle is ready at their work shop. If the complainant had taken the vehicle at that time he will be put to more difficulties.
13. The expert commissioner is examined as PW2 and according to him the vehicle was not ready for immediate use at the time of inspection. The battery was not correct and when started the vehicle there was full of smoke. He has deposed that the vehicle has no pulling capacity even in 1st gear. Even after switching off the A/C the vehicle did not move. So it is the opinion of PW2 that the vehicle was not ready for delivery at that time. And according to him the vehicle has got manufacturing defect and only because of it the water swept into the engine and in the later models of Ford Fiesta cars this defect had been cured. So the entry of water into the engine while it was driven through the water logged road is not a negligence on the part of complainant. The expert commissioner categorically deposed that the condition of the vehicle was too bad when compared with 2nd hand vehicle.
14. Exhibit X2 is the report of inspection on 27/5/09. It is also reported that the vehicle was not in starting condition. The vehicle performance level is not at par with the vehicle of this make. In this report also the commissioner reported that the present condition of the vehicle is not advisable for immediate use. According to PW2 overhauling was done to the vehicle more than once. It is his opinion that the defect of the vehicle is not due to the negligence of complainant and only because of the defect of the vehicle.
15. The respondents 5,6 and 7 filed objections to commission report. The main objection is non serving of notice to them and if that be so they can very well file another commission application to inspect the vehicle and to note their own matters. But no such step taken by them.
16. The complainant wants replacement of the vehicle with a new Ford Fiesta diesel engine car or in the alternative repayment of the cost of the vehicle. It is to be noted that the vehicle was only 5 months old at the time of incident. After the incident it was entrusted with the Kairali Ford and it is in their custody till date. Since the vehicle was dismantled and repaired and overhauling work was done the complainant is not willing to take back the same vehicle. It is the opinion of expert that the said model vehicle has got design defect and because of that water swept into the engine. Later the Ford changed these models of engine from Ford Fiesta cars. Thus it was an experiment of Ford company and the consumer would say that the vehicle was defective and not in a position to use and he is not willing to take back. It is true that there are instructions in owners manual and each and every consumer is supposed to use the same according to the instructions. The level of water in which the vehicle is supposed to drive also stated in the manual. It is true that the manual is not produced by complainant and not a specimen by respondent also. But the consumer cannot measure the water level while driving in a water logged road. According to PW1 other vehicles are going and so he also taken the vehicle through the road. But unfortunately this incident was happened. As stated by expert commissioner it is only because of the defect of the vehicle. In this circumstance we are inclined to order repayment of cost of the vehicle by respondents. The 1st relief sought is replacement of the vehicle with a new one of the same model. But according to respondents and expert commissioner these kinds of vehicles are not manufacturing now. So the repayment of cost is the proper and right relief entitled by complainant. As
contended by 8th respondent the insurance company is not a necessary party in this case and not at all liable to compensate complainant.
17. In the result the complaint is allowed and the respondents 1 to 7 are directed to pay Exhibit P1 amount and Rs.50,000/- (Rupees Fifty thousand only) as compensation with costs Rs.3,000/- (Rupees three thousand only) (including commission batta) within two months from the date of receipt of copy of this order.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the 24th day of April 2013.
