DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No:765 of 2010] Date of Institution :26.11.2010 Date of Decision :14.12.2011 -------------------------------------- - M/s Ayushveda Informatics (India) Pvt. Ltd. through its Director Sh. Ramesh Mehta, Plot No.296, Industrial Area, Phase-II, Panchkula – 134 109.
- Sh. Ramesh Mehta, Director, M/s Ayushveda Informatics (India) Pvt. Ltd., Plot No.296, Industrial Area, Phase-II, Panchkula – 134 109.
---Complainants. VERSUS - M/s Krishna Automobiles, through its Managing Director, Plot No.125, Industrial Area, Phase-I, Chandigarh.
- M/s. B.M.W. India (P) Limited through its Managing Director, DLF Cyber City, Phase-II, Building No.8, Tower-B, 7th Floor, Gurgaon – 122 002.
- Tata AIG General Insurance Company Limited through its Branch Manager, 2nd Floor, SCO No.232-234, Sector 34-A, Chandigarh.
---Opposite Parties. BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT MRS. MADHU MUTNEJA MEMBER SHRI JASWINDER SINGH SIDHU MEMBER Argued By: Sh. Vishal Bali, Advocate for the complainants. Sh. Aftab Singh, Advocate for OP No.1. Sh. Arvind Sood, Advocate for OP No.2. Ms. Jamini Tiwari, Advocate proxy for Sh. Rajneesh Malhotra, Advocate for OP No.3. PER LAKSHMAN SHARMA, PRESIDENT 1. M/s. Ayushveda Informatics (India) Pvt. Ltd. and its Director namely Sh. Ramesh Mehta have filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OPs be directed to :- i) Pay a sum of Rs.1,76,770/- as repair charges of the car; ii) Pay a sum of Rs.80,000/- as compensation towards mental agony, harassment etc. iii) Pay a sum of Rs.1,00,000/- on account of unfair trade practice; iv) Pay a sum of Rs.25,000/- as costs of litigation. 2. In brief, the case of the complainant – company is that it purchased one BMW 3 Series car from OP No.1 being manufactured by OP No.2 and paid a total price of Rs.26,90,000/- vide Retail Sales Invoice dated 02.03.2009 (Annexure C-2). The said car was got insured by the complainant from OP No.3 – M/s. Tata AIG General Insurance Co. Ltd. vide Policy No.010047104400. The said policy was valid for the period from 02.03.2010 to 01.03.2011. 3. It has been averred that the first service of the car was to be got done after completing 10,000 KMs but it started indicating Low Engine Oil when it had just covered 9000 KMs. The complainant immediately approached OP No.1 on 11.09.2010. The engine oil was refilled and other necessary repairs were carried out by OP No.1. When the complainant was taking his car back, it suddenly stopped in the middle of the road due to heavy rain water. The complainant called up on the workshop of OP No.1 and the car was toed to the workshop of OP No.1 by its engineer. As there was some fault in the engine of the car, two of its cylinders were replaced and an estimate of Rs.1,59,244/- was prepared by OP No.1. 4. According to the complainant as the car was under warranty, its repair was to be done free of costs or repair charges were to be paid by OP No.3 with whom the car was insured. At the time of delivery of the car, OP No.1 charged a total amount of Rs.1,76,770/- from the complainant. 5. OP No.3 appointed a surveyor, who after inspecting the car in question, vide his letter dated 20.9.2010 (Annexure C-5) stated that there was no external impact to the vehicle or the engine and there was presence of water in the Air Filter. The complainant also received an email dated 29.9.2010 (Annexure C-6) whereby it was intimated by OP No.2 that the engine of the car has suffered mechanical damage from hydraulic locking due to ingestion of water through the intake system. The complainants served a legal notice dated 25.10.2010 (Annexure C-11) upon the OPs. In lieu of the legal notice, OP No.3 vide its letter dated 01.11.2010 (Annexure C-17) admitted that the complainants are entitled to the loss due to flooding/ingestion of water through intake system of the car. 6. According to the complainants, the said damage is the result of the flood and the same is covered under the insurance policy. Otherwise also, according to the complainants, at the time of repairs, the car was under warranty. So, the manufacturer and the insurer are liable for the repair charges. In any case, according to the complainants, they are entitled for the refund of the repair charges and for compensation for mental agony and harassment. 7. In these circumstances, the present complaint has been filed seeking the relief mentioned above. 8. In the reply filed by OP No.1, the contents of Paras No.1 to 9 have been admitted. It has been pleaded that neither there is any allegation in the complaint nor any expert opinion has been placed on record to prove that there was any manufacturing defect in the engine of the car. The hydrostatic lock that had occurred in the engine was due to the ingestion of water in the engine through air and oil filter as water was also found in oil. According to OP No.1, the plea of OP No.3 that there was no external impact to the engine has no force. As per OP No.1, neither it has been alleged nor proved on record that the hydrostatic locking of the engine was the result of any manufacturing defect. It has been categorically stated that there was absolutely nothing unprofessional on its part. According to OP No.1, this is a case of negligent driving on flooded road against the definite instruction by OP No.1. It has been asserted that the car was immediately towed and brought to the garage and repaired to the entire satisfaction of the complainant. According to OP No.1, there is no deficiency in service or unfair trade practice on its part and the complaint deserves dismissal. 9. In the reply filed by OP No.2, the manufacturing company, it has been pleaded that admittedly the car was brought to the workshop of OP No.1 for the first time after 18 months of its purchase with a complaint of low engine oil level. Thus, according to OP No.2, the said vehicle was in a perfect running condition and there was no problem/complaint at all. On 11.09.2010, the vehicle had covered 9414 KMs as per the last recorded mileage. Upon examination, only 1 Liter of engine oil was found to be less than the normal, which is a permissible quantity of consumption. It has been averred that engine oil is a volatile substance requiring regular check. It has further been asserted that on 11.09.2010, it was admittedly raining very heavily and a lot of rain water was on the roads. The complainant despite the Owner’s Manual Instructions and the advice of the dealer not to take the car through water logged areas and not to reignite the engine in case it stopped in rain water, drove his car through heavily water logged road, which resulted in hydraulic locking of the car. According to OP No.2, there was no manufacturing defect in the engine of the car and the damage was caused due to ingestion of water through the intake system, which is precisely not covered under the warranty. As such, OP No.2 also prayed for dismissal of the complaint. 10. In the reply filed by OP No.3 – Insurance Company, it has been admitted that the vehicle in question was insured with it vide Insurance Policy No.010047104400 valid from 02.03.2010 to 01.03.2011. It has been pleaded that on receipt of intimation of the loss, OP No.3 appointed M/s Pee Kay and Company as Surveyors and Loss Assessors who submitted its report dated 15.11.2010 (Annexure A-3). The surveyor made the following observations:- “Water contents were found in the air inlet line, air filter was wet and water was mixed with the engine oil. After cleaning and flushing the engine was cranked. Engine started but it was missing and compression in two cylinders was lower than other two.” 11. The said surveyor assessed the amount to the tune of Rs.67,192/- (Rs.53,059/- for the standard cover and Rs.13,913/- for add on cover-depreciation reimbursement), which was payable subject to the terms and conditions of the insurance policy. It has been averred that this claim amount was also offered to the complainant vide letter dated 24.12.2010 but they refused to accept the same. 12. According to OP No.3, as per the terms and conditions of the insurance policy, the consequential losses, depreciation, wear and tear, breakage were not payable under the insurance policy. 13. It was lastly asserted by OP No.3 that no other amount beyond the report of the surveyor is payable to the complainant. 14. According to OP No.3, there is no deficiency in service on its part in settling the claim of the complainant. OP No.3 also prayed for dismissal of the complaint. 15. We have heard the learned counsel for the parties and perused the record carefully. 16. The admitted facts are that the car was purchased by the complainant on 02.03.2009. The first service was to be got done after the car covered a distance of 10,000 KMs. However, as the car started indicating low engine oil, the same was taken to the authorised dealer when it had covered a distance of 9000 KMs only. After topping up of the engine oil and other minor repairs, the car was handed over to the complainant in good condition on 11.09.2010. Admittedly on that day, there was heavy rain. While the complainant was passing trough a flooded road, the car suddenly stopped. It was toed to the workshop of the authorised dealer again. During inspection of the car, it was found that there was water in the air filter as well as the engine oil. Thus, the water had entered the engine due to flooding of the road. 17. The complainant has failed to place on record any evidence to prove that there was any manufacturing defect in the engine. As per the report of the surveyor, which was appointed by OP No.3, there was hydrostatic locking of the engine due to entering of the water through air inlet line and the air filter was also wet and the water was mixed with the engine oil. In these circumstances, it cannot be said that there is any manufacturing defect in the engine. So, there is no deficiency of service on the part of OPs No.1 and 2. 18. As far as OP No.3 is concerned, as per Clause– I under the heading “LOSS OF OR DAMAGE TO THE VEHICLE INSURED”, under Sub Clause (v) of the insurance policy, OP No.3 – Insurance Company is liable to indemnify the insured against the loss or damage to the vehicle insured, which occurred due to flood, typhoon, hurricane, storm, tempest-inundation, cyclone, hailstorm and frost. Therefore, OP No.3 is liable to pay compensation for the loss, which occurred due to flood or heavy rains. As per the report of the surveyor, it is established that the loss had occurred due to ingestion of water in the engine on account of flood and heavy rains. In these circumstances, OP No.3 is liable to indemnify the complainant of the loss occurred to him due to ingestion of water in the engine. The car has been repaired at the agency of the company and not by an outside party. 19. Annexure C-4/A is the Bill amounting to Rs.1,76,769/- paid by the complainant on account of repair of the car whereas as per the report of the surveyor/Loss Assessor, the liability of OP No.3 is to the extent of Rs.67,192/-. He has not given any reason for disallowing the balance amount. In its reply, OP No.3 has stated that the damage to the engine is an aggravation of the loss. Otherwise, the engine could be repaired only by flushing out and cleaning the water from it. This fact has not been discussed by the surveyor in his report. This stand taken by OP No.3 is not sustainable. Admittedly, the water had entered in the engine because of flood and heavy rain. The ingestion of water in the engine is not an aggravation of the loss. In fact, the engine got damaged because of entering of water in it and there was hydrostatic locking of the engine due to it. In these circumstances, to our mind, OP No.3 is liable to indemnify the entire loss and part of the loss cannot be denied because the surveyor has not given any reason for disallowing the rest of the amount. The surveyor’s report does not make any mention of any consequential loss as has been pleaded by OP No.3 for denial of the claim. Hence, OP No.3 is deficient in service for not indemnifying the total loss. 20. In view of the above findings, this complaint is allowed qua OP No.3 only with the following direction to: - (i) to pay a sum of Rs.1,76,700/- to the complainant being the loss caused to him on account of ingestion of water in the engine; (iii) to pay a sum of Rs.7,000/- to the complainant as costs of litigation. 21. However, the complaint qua OPs No.1 and 2 is dismissed. 22. This order be complied with by OP No.3 within 30 days from the date of receipt of its certified copy, failing which OP No.3 shall pay the aforesaid amount of Rs.1,76,700/- along with interest @18% per annum from the date of filing the complaint i.e.26.11.2010 till actual payment besides payment of Rs.7,000/- as costs of litigation. 23. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 14th December, 2011 Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER Sd/- (JASWINDER SINGH SIDHU) MEMBER Ad/-
C.C.No.765 of 2010 Present: None. --- Vide our detailed order of even date recorded separately, this complaint has been allowed qua OP No.3 only. However, the complaint qua OPs No.1 and 2 has been dismissed. After compliance file be consigned. Announced. 14.12.2011 Member President Member
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MR. JASWINDER SINGH SIDHU, MEMBER | |
