PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
The Complainant had purchased new Car Chevrolet Optra 1.6 LS, Artic Breeze colour bearing Regn. No.MH-01-NA-4179, for the sum amount of Rs.7,95,196/- from the Opposite Party No.2. The aforesaid car was manufactured by Opposite Party No.1. Opposite Party No.2 is the Authorized Dealer of Opposite Party No.1. The Complainant has produced copy of Purchase Invoice dtd.27/10/04 and Registration Certificate alongwith the complaint at Exh.‘A’ & ‘A1’. For purchase of aforesaid car the Complainant had obtained loan form I.C.I.C.I. Bank.
2) From the date of purchase the Complainant was using the said car and said car had always been serviced at regular interval only at authorized service centre of the Opposite Party.
3) On 12/10/06 by the said car the Complainant went to Nasik. On the way he noticed that break of the said car were steadily failing. Immediately on reaching at Nasik, Complainant took his car to the Opposite Party’s authorized service centre, Jitendra Wheels (N) Pvt. Ltd., where the said service centre carried out necessary repairs. Charges of the repairs of Rs.3,454/- were paid by the Complainant. The Complainant has produced copy of the said receipt at Exh.‘B’.
4) According to the Complainant on the same day i.e. 12/10/06, the Complainant was returning to Mumbai from Nasik. After leaving Nasik, he received telephone call from his wife and so the Complainant return back to Nasik and took his aforesaid car inside the gate of his bunglow. After car was parked, a driver got down and started to remove briefcase of the Complainant. At this point, driver noticed some flames at the rear of the car. Before the driver could reach to the car, it was engulfed in flames. The flames started from the rear. The driver attempted to open the front door but found that central locking had been activated and the car was completely locked. It is submitted that the Complainant’s car burn furiously and had been completely destroyed. Immediately Fire Brigade was called. Information was given to the Local Police Station where FIR was registered. The Complainant had produced copy of FIR and Certificate dtd.13/10/06 issued by the Fire Brigade Officer who had come for extinguishing the fire.
5) It is submitted that the Complainant and his driver were fortunate when car was gutted in the fire as they were outside the car. It is submitted that the Complainant’s car gutted in fire due to manufacturing defect. The Complainant has produced photo copy of his car destroyed by fire alongwith complaint at Ehx. ‘F’ to ‘G’.
6) On 13/06/06, the Complainant gave information of the incidence to The National Insurance Co. from whom he had obtained insurance cover for the aforesaid car. The Complainant requested insurance company to appoint surveyor and accordingly, surveyor was appointed. The surveyor conducted the survey. The Complainant’s claim for damaged car was passed and settled for Rs.5,32,720/-.
7) On 19/10/06, the Complainant through his advocate issued notice to the Opposite Party No.1 and called upon to Opposite Party to compensate for mental agony, hardship and trauma suffered by the Complainant. The Complainant had demanded compensation of Rs.1 Crore and a free replacement of the car of the same colour from the Opposite Party. However, except a vague reply, dtd.02/12/06, the Opposite Party No.1 did not care to inspect the car or to comply with the demands of the Complainant. None of the Opposite Party had even taken any trouble to send some Technician or Surveyor for examining the destroyed/burnt car. The Complainant’s damaged car was lying in the compound of his bunglow at Nasik for some time. Inspite of Complainant’s repeated communication, the Opposite Party did not give any response. The Complainant had been traumatized by aforesaid incidence. He is a businessman. He has lost the business. The Complainant’s factory is situated in Nasik whereas he is residing at Mumbai. The Complainant is required to visit the factory frequently. The Complainant had suffered hardship and considerable mental agony and inconvenience over the period of last 16 months. According to the Complainant, his car caught fir on account of some inherent defect in the car which can be attributed to the manufacturing defect and hence, the Opposite Parties are liable for damage/compensation. According to the Complainant, cause of action for this complaint against Opposite Party No.1 & 2 arose on 02/12/06 when Opposite Party No.1 denied their liability.
8) The Complainant has prayed to direct Opposite Party No.1 & 2 for the free replacement of the car of the same colour, Artic Breeze or in the alternative to direct Opposite Party No.1 & 2 to pay to the Complainant an amount of Rs.9 Lacs together with interest @ 12 % p.a. The Complainant has requested to direct Opposite Parties to pay the Complainant Rs.10 Lacs as compensation together with interest @ 12 % p.a. till actual date of payment. The Complainant has also prayed for cost of this proceeding. In support of complaint the Complainant has filed affidavit. He has produced copies of the documents as per list of document.
9) Opposite Party No.1 has filed their written statement and resisted claim of the Complainant contending interalia that the complaint is false and frivolous and the Complainant has filed this complaint only with intention to extract money from the Opposite Party No.1. The allegations made by the Complainant about manufacturing defect are entirely baseless and frivolous and without any merit. On 27/10/04, the Complainant purchased Chevrolet Optra manufactured by Opposite Party No.1. The said vehicle caught fire on 12/10/06. The vehicle caught fire after 2 years of its purchase whereby its warranty period had already come to an end. The cabin of the said vehicle was burnt. However, the engine compartment was secured and untouched by any damage of burning. So also the metallic fuel pipes and the metallic brake pipes remained intact and sound. As alleged by the Complainant, flames were found to be coming from the rear of the said vehicle. Flames, to light and fan themselves require combustible material. There was no damage to the fuel tank or its auxiliary parts. It is submitted that no such combustible as in the case here can arise on account of any manufacturing defect. According to the Opposite Party No.1 when engine is not running and the vehicle is stationary, there is absolutely no technical factor which can give rise to ignition as has taken place in the present case. Therefore, according to the Opposite Party No.1, fire in the present case is on account of extraneous factors which have nothing to do with the manufacturing defect. Extraneous factors like alight cigarette stubs left unattended inside the vehicle in tandem with other combustible material, a fortiori negligence, leading to presence of incendiary material inside the cabin of the vehicle is the cause of the fire and alleged manufacturing defect had been absolutely nothing to do with the fire in question.
10) Opposite Party No.1 has denied the allegations made in the complaint and submitted that the Complainant has suppressed material facts in the complaint. In the complaint it is averred that on 12/10/06 his vehicle was parked inside the compound at 10.30 p.m. However, in the copy of FIR which is annexed to the complaint, it is mentioned that vehicle was parked in the Complainant’s at around 4.00 p.m. These contradictory statements itself makes it clear that the Complainant has not approached this Forum with clean hands. The Complainant has not disclosed real cause of the fire. From the Insurance Company the Complainant has already received claim of Rs.5,32,720/-. Surveyor of the Insurance Company has noted in his survey report that ‘exact cause of fire could not be ascertained’. It is alleged that Complainant is trying to take benefit of its own wrong. There is no deficiency in service on the part of Opposite Party and therefore, the complaint deserves to be dismissed with cost.
11) Opposite Party No.2 has filed written statement and he has also resisted claim of the Complainant. According to the Opposite Party No.2, the Complainant had brought his car to their garage for about 8 times for repairs/service between period 09/12/04 to 29/08/06. Thereafter, the said car was never brought to their workshop. The repairs of the rear break liners replacement were carried out by the dealership at Nasik (Jintendra Wheels (N) Pvt. Ltd.) on 12/10/06. According to Opposite Party No.2, they are not responsible for the accident. The said car was also out of warranty period when fire took place. It is submitted that complaint against Opposite Party No.2 is liable to be dismissed with cost. The Complainant has filed affidavit of evidence. Opposite Party No.1 has also filed affidavit of evidence. The Complainant and both the parties have also filed their respective written arguments. From 08/02/2010 the Complainant has not appeared before this Forum. We heard oral submissions of Ld.Advocate Mr. Mahesh Ahire for the Opposite Party No.1 and Mr. Pervez Billmoria, Representative of the Opposite Party No.2 and case closed for orders.
12) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant has proved deficiency in service on the part of Opposite Party No.1 & 2 ?
Findings : No
Point No.2 : Whether the Complainant is entitled for relief as prayed for ?
Findings : No
Reasons :-
Point No.1 :- Following facts are admitted fact that the Complainant on 27/10/2004 purchased new Car Chevrolet Optra 1.6 LS, car bearing Regn. No.MH-01-NA-4179, for Rs.7,95,196/- form the Opposite Party No.2. The aforesaid car was manufactured by Opposite Party No.1. Opposite Party No.2 is the Authorized Dealer of Opposite Party No.1. From the date of purchase the Complainant was using the said car. It appears from the evidence that after purchase for about 8 times the Complainant had taken the said car to Opposite Party No.2 for servicing and repairs. Last repair carried out by the Opposite Party No.2 on 29/08/06. Opposite Party No.2 has produced job card of the last repairs carried out on 29/08/06. Millage of the said car recorded in the job card is 48109. Opposite Party No.2 has carried out wheel alignment and other minor repairs of the A/c of said car.
It is the case of the Complainant that on 12/10/06, the Complainant from his Mumbai residence went to Nasik by the said vehicle and it is alleged that on the way that breaks were steadily failing. After reaching at Nasik, he sent the vehicle to the Opposite Party’s authorized service centre, Jitendra Wheels (N) Pvt. Ltd., at Nasik, necessary repairs were carried out for which he paid Rs.3,454/-. The Complainant has produced copy of the said receipt of the said garage at Exh.‘B’. It appears from the Tax Invoice issued by Jitendra Wheels (N) Pvt. Ltd. that repairs of – Lining Kit – Brake RR, Cup, Springing, etc. were carried out. In the job card on 12/10/06, mileage of the said vehicle is noted as 50512. As per the Complainant on that day in the late evening i.e. on 12/10/06 he started to return to Mumbai from Nasik, however, on the way, he received telephone call from his wife and so the Complainant returned back to Nasik. The Complainant took his vehicle inside the gate of his bunglow at about 10.30 p.m. and then the car was parked. Thereafter, the driver got down to remove the briefcase of the Complainant and at that time he noticed some flames at the rear of the car. It is contended that before the driver could reach to the car, it was engulfed in flames. The flames started from the rear. The driver attempted to open the front door but found that central locking had been activated and the car was completely locked. According to the Complainant, Fire Brigade was called. In the meantime the car was burnt furiously and had been completely destroyed in the fire. Information of the incidence was given to the Local Police Station/Nasik Road Police Station, where FIR was recorded. The Complainant had produced copy of FIR lodged to Nasik Road Police Station. The Complainant has produced photographs of his damaged car. It is undisputed fact that after the incidence of fire the Complainant had reported the matter to the Insurance Company. The surveyor appointed by the Insurance Company Inspected the damaged car and the Complainant’s insurance claim was passed and settled for Rs.5,32,720/-. The Complainant has produced report of the surveyor Vaibhav S. Kulkarni appointed by the Insurance Company and another survey report of the surveyor Parvinder Kumar Bhatia. In the written argument the Complainant has submitted that the car caught fire due to manufacturing defect. As per the Complainant on 12/10/06 at about 10.30 p.m. after entering gate of the bungalow, at Nasik, driver of the car parked the car inside the compound of his bungalow and at that time he noticed the flames at the rear of the car. What happened was extremely serious, life threatening. It is submitted that nowhere in the Panchanama/FIR/Survey Report it is alleged that extraneous incendiary material inside the cabin of the car that has left caused the fire. Inspite of information nobody from the Opposite Party came to inspect the damaged of the car. According to the Complainant, the car caught fire on account of some inherent defect in the car which can be attributed to the manufacturing defect and not at all due to external reason.
Ld.Advocate for the Opposite Party No.1 has submitted that the accident of fire took place about 2 years after purchase of the car. From the date of purchase the Complainant was using the car and the mileage noted in the job card is more than 50,000 k.m. Even according to the Complainant the car caught flames when it was parked inside the bunglow. The car was stationery when it caught flames. Therefore, it cannot be said that the car caught flames due to the manufacturing defects. It is submitted that in this case the Complainant has suppressed material facts from this Forum. In the complaint it is alleged that on that day i.e. 12/10/06, when the Complainant was returning to Mumbai from Nasik, on the way he received telephone call from his wife and so the Complainant return back to Nasik and took his aforesaid car in his premises inside the gate of his bunglow. After care was parked, a driver got down and started to remove briefcase of the Complainant. At this point, driver noticed some flames at the rear of the car. Before the driver could reach to the car, it was engulfed in flames. The flames started from the rear. As per the Complainant, after the incidence he had reported the matter nearby police station and FIR was registered. The Complainant has produced copy of the FIR given to Nasik Road Police Station. Ld.Advocate has pointed out that in the FIR lodged in the Nasik Road Police Station, it is mentioned that Complainant’s car bearing no.MH-01-NA-4179, on 12/10/06 at about 4.00 p.m. was parked in front of the bungalow of the Complainant and on that night at about 10.30 p.m. all of sudden Complainant’s vehicle caught flames. It appears that aforesaid FIR was given to Nasik Road Police Station by Arunkumar H. Tiwari, driver of the Complainant. It is submitted by the Ld.Advocate of the Opposite Party No.1 that it is clearly mentioned in the FIR, at 4.00 p.m. the car was parked in front of bunglow of the Complainant. The driver has never stated that at 10.30 p.m. they returned from Nasik-Bombay Highway to Complainant’s bunglow. Therefore, according to the Ld.Advocate for the Opposite Party and Representative of the Opposite Party No.2 that the Complainant has put forth false and imaginary story before this Forum.
It is submitted on behalf of Opposite Parties that the Complainant has not adduced any expert’s evidence to support his allegations that his car caught flame due to the manufacturing defects. In this case the Complainant has produced copy of the report of the surveyor, appointed by the Insurance Company – Shri. Vaibhav Kulkarni in his report/records cause and nature of accident has stated that -
“As reported by Mr. Purohit (Employee of Insured), “IV was parked in the premises of Insured’s bunglow when servants inside the house suddenly noticed flames emerging from the tail side of the IV, they ran out & tried to extinguish the fire using buckets of water, however, the fire intensified & flames spread all over the IV burning it down”. Hence, causing damages.
Further reported, Fire Brigade had been intimated who arrived later with one water tender, they tied the IV from Front end Using chains & pulled it out of the gate to prevent the fire getting in the house & then doused it with water till the fire had been extinguished completely however the IV’s body shell had almost completely burned down by then.
IV had been driven down from Mumbai earlier in day had reached Nasik at around 2.00 p.m., was used by the Insured to commute within the City the petrol tank had been completely filled since Insured intended to start for Mumbai early next morning. IV was finally parked at the site at 10.00 p.m. & Fire was first noticed at 10.35 p.m.
Exact cause of fire could not be ascertained.”
It is submitted on behalf of the Opposite Parties that incident narrated in the complaint is not consistent with the incident narrated in the surveyor’s report and FIR lodged to the Police Station. Surveyor has specifically stated that exact cause of fire could not be ascertained.
After purchase the car the Complainant using the said car for about 2 years. At the time of incident car was parked inside the compound of Complainant’s bunglow at Nasik. When car was stationery it caught flames. Absolutely there is no expert’s evidence to support the allegations of the Complainant that the car caught flame due to manufacturing defect. On the day of incident the Complainant got repaired his car at Nasik from M/s. Jitendra Wheels (N) Pvt. Ltd. at Nasik. M/s.Jitendra Wheels (N) Pvt. Ltd. is not joined as a party to this proceeding. Opposite Party No.2 who is authorized dealer and service centre of Opposite Party No.1 had lastly repair the Complainant’s car on 29/08/06. The Complainant has not adduced any evidence to prove what was a manufacturing defect in the said car. If there was any manufacturing defect as alleged by the Complainant then it was not possible for the Complainant to use the said car for the 2 years. Therefore, considering the evidence on record we hold that there is no substance in the allegations made by the Complainant that there was manufacturing defect in the said car and due to said manufacturing defect his car caught flames. The Complainant has not proved deficiency in service on the part of Opposite Parties. Hence, we answer point no.1 in the negative.
Point No.2 :- The Complainant has failed to prove deficiency in service on the part of Opposite Party No.1. After the incidence, the Complainant has recovered his claim of Rs.5,32,720/- form the Insurance Company for his damaged car. As the Complainant has failed to prove deficiency in service on the part of Opposite Parties, Complainant is not entitled for free replacement of the car from the Opposite Party. He is not entitled to recover Rs.9 Lacs as cost of the said car. Further he is not entitled to recover Rs.10 Lacs as compensation or any of other relief from the Opposite Party. Therefo4re, we answer point no.2 in the negative.
For the reasons discussed above, complaint deserves to be dismissed hence, we pass following order -
O R D E R
i.Complaint No.111/2008 is dismissed
ii.No order as to cost.
iii.Certified copies of this order be furnished to the party.
