Delhi

StateCommission

CC/13/626

A.K. SINGHAL - Complainant(s)

Versus

M/S BMW INDIA - Opp.Party(s)

28 Feb 2018

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

 

Date of Decision:28.02.2018

 

 

Complaint Case No.626/2013

 

1. Mr. A.K. Singhal,

S/o Late Shri Jaipal Swaroop,

R/o C-673, New Friends Colony,

New Delhi.

 

2. M/s. Divine Developers Ltd.,

I-1693, Chitaranjan Park,

New Delhi-110019.

Through: Its Managing Director

Mr. A.K. Singhal

…. Complainants

 

Versus

 

 

1.       M/s. BMW India (P) Ltd.,

(A BMW Group Company),

DLF Cyber City, Phase-II,

Building No.8, Tower-B, 7^th Floor,

Gurgaon-122002.

 

2.       M/s. Deutche Motoren (P) Ltd.,

          H-5/B-1, Mohan Co-operative Industrial Estate,

          Mathura Road, New Delhi-110044.

 

… Opposite Parties

 

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

 

1. Whether reporters of local newspaper be allowed to see the judgment?

  

2. To be referred to the reporter or not?

 

 

 

 

 

Salma Noor, Member

 

1.                Present complaint is filed under Section 17 of the Consumer Protection Act, 1986 (in short, the “Act”).

2.                Brief facts of the case are that complainant No.1 is the Managing Director of Complainant No.2.  The complainant No.1 purchased BMW 5 Series Model 520D Black Sapphire Metallic for a sum of Rs.39,55,670/- on 14.6.11 from OP No.2 i.e. M/s. Deutche Motoren (P) Ltd.  The car had manufacturer’s warranty of 2 years.  At the time of the delivery of the car, it was noticed by complainant No.1 that it did not have any spare wheel in the boot for replacement in case of flat tyre.  On enquiry, OP No.2 explained that the latest technology tyres known as Run Flat tyres are fitted on to the car which could take the car up to 250 Kms even on flat tyres without causing any other damage.  Therefore, according to the manufacturer, the spare wheel was not required and the complainant No.1 was convinced by such claim of the OPs.

3.                It is alleged by the complainant No.1 that on 29.1.13, when complainant No.1 took the car from his residence at about 10 a.m. to his office at Chitaranjan Park, New Delhi, the car suddenly broke down.  Then he called BMW Roadside Assistance No.1800 103 2211 and pick-up van arrived after about 2 hours and towed the car to the workshop of OP No.1.  After inspection of the car, it was found that Fuel Pump of the car had burnt out.  The car was delivered back to the complainant No.1 after a week after carrying out necessary repairs/replacements and with assurance that it was just a one-off incident and there would be no trouble in future.  It is further alleged that on 31.3.13, complainant No.1 was proceeding towards his home in the evening, the driving side front tyre burst for no apparent reason.  Since the car was not far from his home, complainant No.1 brought the car home in the same condition and on next date i.e. on 1.4.13, the car was towed by a crane to the workshop of OPs at Faridabad and the damaged tyre was replaced by a new tyre by the OP No.2 and also replaced the alloy rim of the said wheel by a new one as the same had been damaged.  Two invoices dated 1.4.13 and 2.4.13 for Rs.96,122/- and Rs.38,519/- were raised by OP No.2.  The allegation of the complainant is that again on 16.5.13, the same side tyre bursted at about 4 p.m. on Noida Expressway and somehow the complainant No.1 brought the car to his home from where the car was towed to the workshop of the OP No.2 at Faridabad.  The complainant No.1 again expressed a serious reservation about the so-called Run Flat Tyre Technology and the logic given by the OPs for not providing the spare wheel in the car but OPs still defended the said technology and again replaced the damaged tyre by a new one and complainant was further burdened with invoice dated 16.5.13 of Rs.26,117/- by the OP-2 and the car was  returned to complainant No.1 after a week.  Thereafter the complainant No.1 wrote an e-mail to both the OPs expressing his deep concern in detail.  Not only he expressed concern about the fuel pump having burnt and also lamanted about repeated tyre burst in the same wheel of the car.  The OP No.1 replied vide their e-mail of 27.5.13 and conveyed to the complainant that OP No.2 would soon respond in regard to the complaint of the complainants.  On 28.5.13, OP No.2 called the car to their workshop for proper diagnostics and the car was returned on the same day to the complainant after replacing cup holder and ashtray.  The grievance of the complainant is that they were not informed of the outcome of the inspection of the car and what was the problem with it except stating that the tyres used in the car are of Run Flat Tyre Technology and the same are suitable for Indian roads.  It is further stated that on 20.7.13, when complainant No.1 was driving the car at about 1:00 p.m. on Outer Ring Road, it was raining at that time and there was a traffic jam.  After a while, the engine of the car suddenly stopped.  He tried to restart the engine a couple of times but of no avail.  It had caused grave humiliation and embarrassment to complainant No.1.  He rang up BMW Roadside Assistance helpline and the breakdown crane arrived at about 5 p.m. and towed the car to workshop of the OPs at Faridabad.  After examination at workshop, it was informed to the complainant that the car had stopped because of engine suffered seizure called hydrostatic lock and the complainant No.1 was shocked to know that it can happen in a premium luxury car particularly BMW luxury car.  The car was taken to the workshop of OP No.2.  Complainants have alleged that the supervisor at the workshop could not explain as to how the car could suffer engine seizure when it was barely crawling in the traffic jam while it was raining, especially when no other car of any other make suffered such engine seizure on the said stretch of road.  It is alleged by the complainant that OPs did not repair the car despite repeated requests and after a month on 24.8.13 vide its e-mail expressed regrets for delay and informed the complainant No.1 that delay was on account of backlog in receiving engine replacement parts from their Central Warehouse in Germany and complainant waited for over a period of one month.  After one month, complainant No.1 had sent an e-mail to the OPs and wondered as to why OPs were selling such like cars in India without keeping any stock of essential spare parts of the engine.  The OPs again expressed regrets on phone for inordinate delay and wrote an e-mail on 30.9.13 blaming the complainants for possibly having driven the car through deep water.  It was utter shock to the complainant No.1 as there was no water logging on the road and nor any such breakdown occurred with any other car which passed by at the said stretch of the road.  The complainant No.1 wrote an e-mail dated 7.10.13 to the OPs granting seven days time to repair and return the car, failing which they will have to face consequences.  In response to that OP No.1 on 9.10.13 wrote an e-mail to the complainant No.1 thanking for having waited for so long and informed that the required parts are expected shortly and they are making efforts to deliver the car as soon as possible.  After waiting for considerable long time, the complainant No.1 wrote a letter on 1.11.13 about the delivery of the car back from the OPs but no reply was given.  Thereafter the complainants served a legal notice dated 1.11.13 to OP No.1.  In response to that OP No.1 wrote a letter dated 12.11.13 again putting the blame on the complainants instead of addressing the real issue.

4.                Despite the service of legal demand notice neither the OPs were able to repair the car within the stipulated time nor acceded to the demand of the complainant to provide a brand new car of the same series.  Thereafter the complainants filed the present complaint before this Commission seeking directions that OPs be directed to deliver a brand new BMW 5 Series Model 520D car in lieu of defective car.  The complainant has also prayed for grant of compensation and litigation cost.

5.                Both the OPs have contested the complaint by filing separate written statements.  OP No.1 i.e. BMW India (P) Ltd. in its written statement stated that the present complaint is not maintainable as complainants are not a ‘consumer’ under Section 2(1)(d) of the Consumer Protection Act, 1986 as the vehicle was purchased by the complainant No.2 for the use of its Managing Director i.e. complainant No.1 for “commercial purposes” as a perquisite of his office.  In support of its stand, OP No.1 has relied on the judgement of National Commission in the case of Western India State Motors v. Sobhag Mal Mena, 1991(1) CP413(NC).  Another objection taken by OP No.1 that it sells vehicles to the authorized dealers under dealership agreement on a principal to principal basis and its contractual obligations are limited to the dealers from whom the vehicle was purchased.  It is stated that authorized dealer provide warranty for 24 months.  Once the vehicle was sold by OP No.1 to its authorized dealer as in this case Deutsche Motorern Pvt. Ltd. i.e. OP No.2 its contractual obligation are limited to the dealer and customers can approach the dealer from whom the vehicle was purchased in case of any service or warranty requirement.  It is fusrther submitted by the OP No.1 that the complainant has not alleged any manufacturing defect in the vehicle as the allegation made mainly are of burning of fuel pump, tyre puncture and hydrostatic lock.  It is submitted that fuel pump can fail due to many reasons as using contaminated fuel, driving the said vehicle when the fuel level is low etc.  Moreover the pump was replaced by the dealer under the terms of warranty without charging the complainant.  About tyre puncture, it is stated by OP No.1 that BMW vehicles are fitted with Run Flat Tyres which are “self supporting tyres” which allow the vehicle to continue driving at a maximum speed of 80 Kilometers per hour with a deflated/punctured tyre which can run for a further 150 Kilometers in case of puncture, hence the spare wheel is an optionl feature and not provided with the BMW cars and are to be purchased separately at the customer’s option.  It is further stated that at the time of buying new BMW car, the special features of RFT’s are explained to the customer and if the customer gives option of buying spare wheel in that case customers are provided with spare wheel.  It is further stated that the tyre warranties are provided by the tyre manufacturing company and not by the BMW of India i.e. clearly mentioned in the brochure regarding safety features of RFT i.e. exhibited as Ex-OP-4.  About the hydrostatic lock, it is stated by the OP No.1 that hydrostatic lock in a vehicle can happen if it is driven in a deep, standing water i.e. above the level of air intake system.  Water sucked through the air filter enters right into the engine i.e. common damages caused due to the hydrostatic lock are bent or broken connecting rod, fractured head, fractured block, crankcase damage, damaged bearings, or any combination of these.  It is stated that Owners’ Manual clearly provides how to operate a vehicle properly and what precautions are to be taken while driving the vehicle in a water logged area.  It is stated that OP No.1 is not responsible for any delay caused in the repair of the vehicle and also OP No.1 is not aware of any delay caused to the complainant.

6.                OP No.2 i.e. Deutsche Motoren Pvt. Ltd. in its written statement has taken the same objection that the complainant is not a ‘consumer’ as defined under the Act.  It is stated that the vehicle is purchased for commercial purposes for use of his Managing Director.  It is further stated by OP No.2 that OP No.1 is engaged in the business of manufacturing cars and is not a manufacturer of tyres.  It is stated that the tyres are outsourced from tyre manufacturers and not by OP No.2.  It is clearly mentioned in the new vehicle manual about safety to the customers which is as under:

“TYRES ARE WARRANTED BY THEIR RESPECTIVE MANUFACTURER AS DETAILED IN THE APPLICABLE TYRE MANUFACTURER’S WARRANTY STATEMENTS.  INSTRUCTIONS FOR PROPER TYRE CARE AND MAINTENANCE ARE CONTAINED IN THE OWNER MANUAL’S MANUAL.  SHOULD YOU EXPERIENCE DIFFICULTY IN OBTAINING WARRANTY SERVICE FROM A TYRE MANUFACTURER, YOUR AUTHORIZED BMW DEALER WILL ASSIST YOU IN RESOLVING THE DIFFICULTY.”

7.                It is alleged that in view of the aforesaid warranty terms without making tyre manufacturer as a party, the present complaint cannot proceed and it was duty of the BMW dealer to assist the customer in resolving the difficulty in getting warranty and as such no claim whatsoever lies against the OP No.2.  It is further submitted that the BMW cars run on “Run Flat Tyres” and it is the user’s responsibility to operate the vehicle in a careful manner on all types of road surfaces and the warranty does not cover user-induced damages such as damaged tyres (puncture, cuts, carcass damage and bulges), bent wheel rims and bent suspension components.  It is stated that the tyre was burst because the complainant did not notice the puncture in the tyre and he all along drove the said car for more than 250 kms and after reaching its maximum, its tyre had burst and the complainant instead of calling road side assistance of BMW continuously drove the car for very long period as a result of which cracks had developed on the tyres.  Further it is denied by the OP No.2 that complainant is entitle for any compensation for loss of insurance premium for the period the car remained in the workshop and stated that the contents of e-mail dated 26.9.13 are wrong, false and denied.  It is submitted that complainant was very much aware about the car status on day to day basis as the information was given by the OP No.2 and complainant was satisfied with the same.   It is further stated that in the e-mail dated 30.9.14, it was categorically mentioned by the OP No.1 that as the BMW is a luxury import vehicle, all parts are procured from Germany and then shipped to India.  BMW India does maintain a stock for most of the parts in reasonable quantity in its own warehouse and requires only rare parts to be shipped from Germany.  Unfortunately, in the case of complainant, the parts required to restore complainant’s vehicle had to be supplied from Germany and have been delayed which was beyond the reasonable anticipation and control of BMW India which has led to delay in repair.   

8.                Complainants have filed rejoinder to the written statements of OP-1 and OP-2. To prove the case, complainants have filed evidence by way of affidavit of Sh. A.K. Singhal i.e. Managing Director of complainant No.2.  Both the OPs have also filed their evidence by way of affidavits.  Parties have also filed written arguments.

9.                We have heard the parties at length and perused the material on record.

10.              At the outset, Ld. Counsel for the OPs submitted that complainants have sold the car in question on 9.10.14 to a third party during the pendency of the complaint.  It is submitted that after selling the car, an additional affidavit of complainant No.1 is filed on 6.12.14 informing the Commission about sale of the car.  It is submitted that since car has been sold, complainants are no longer ‘consumer’ under the Consumer Protection Act and complaint is liable to be dismissed.   

11.              Ld. Counsel for complainant has argued that complainant has already informed about sale of car by way of an additional affidavit filed on 6.12.14.  There is no concealment on their part. It is stated that complainants are entitled for compensation as the complainants have suffered due to defective car.

12.              We may mention that prior to filing of aforesaid affidavit, complainant had moved an application seeking permission to take delivery of the car in question from the OPs. The said application came up for disposal on 20.3.15.  However, on the said date the Counsel for complainant informed that the delivery of the car was taken on 14.8.14 and car had already been sold to a third party on 9.10.14 and an additional affidavit to that effect was filed on 6.12.14.  The complainant did not mention anything in the application wherein he had sought permission to take the delivery of the car that the complainant was intending to sell the same.  The delivery of the car was taken on 14.8.14.  Even thereafter nothing has been informed to this Commission about the intention of the complainant to sell the car.  The information has been given to the Commission only after two months of sale of the car.  When the complainant had filed an application for taking delivery of the car, they could have also sought permission from this Commission for sale of the car.  Information after sale is an afterthought.

13.              We find substance in the submission made by the Ld. Counsel for the OPs.  Since the vehicle was sold during the pendency of the complaint and no prior permission was taken, complainants cease to be a ‘consumer’.

14.              The Hon’ble National Commission in RP No.2562 of 2012 - Tata Motors Ltd. v. Hazoor Maharaj Baba Des Rajji Chela Baba Dewa Singhji (Radha Swami) decided on 25.9.13 has held that once a vehicle is sold during the pendency of the complaint, complainant does not remain consumer for the purposes of Consumer Protection Act.  In the aforesaid judgement, the Hon’ble National Commission has placed reliance on  Hoshiarpur Improvement Trust v. Major Amrit Lal Saini, (2008) CPJ 249 (NC) and judgement dated 23.4.2013 passed by National Commission in FA No. 466 of 2008 - Rajiv Gulati v. Authorised Signatory, M/s. Tata Engineering & Locomotive Co. Ltd. 

15.              In the present case, the vehicle has been sold during the pendency of the complaint without seeking permission from Commission, the complainants are not entitled for any relief.

16.              Since the complainants cease to be ‘consumer’ for the purpose of Consumer Protection Act, we have not examined the case on merits. Consequently the complaint stands dismissed.

17.              A copy of this order as per statutory requirement be sent to the parties free of charge.  Thereafter the file be consigned to record room.

 

 (Justice Veena Birbal)

President

 

(Salma Noor)

Member