Delhi

New Delhi

CC/39/2011

Anusha Finvest - Complainant(s)

Versus

M/S. BMW India Pvt. Ltd. - Opp.Party(s)

21 Apr 2015

ORDER

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI), ‘M’ BLOCK, 1^STFLOOR,

VIKAS BHAWAN, I.P.ESTATE,

NEW DELHI-110002.

 

Case No.CC/39/11                               Dated:

In the matter of:

ANUSHA FINVEST

HAVING ITS REGISTERED OFFICE AT:

1903, PATWAON KA RASTA

CHAURA RASTA, SMS HIGHWAY, JAIPUR -302003

BRANCH OFFICE:

C-6/59-A,

SAFDARJUNG DEVELOPMENT AREA

NEW DELHI - 110016

                 ……..COMPLAINANT

       

VERSUS

1.     BMW INDIA PV LTD.

        SHIVAM HOUSE, 14F, CONNAUGHT PLACE

        NEW DELHI – 110001, INDIA

        BRANCH OFFICE AT:

        DLF CYBER CITY-PHASE II

        BUILDING NO.8, 7^TH FLOOR, TOWER-B

        GURGAON, 122002, INDIA

 

2.     DEUTSCHE MOTOREN PVT. LTD.

        H5/B1, MOHAN CO-OPERATIVE

INDUSTRIAL ESTATE, MATHURA ROAD

NEW DELHI-110044, (INDIA)

 

 ………. OPPOSITE PARTIES

 

ORDER 

President:  C.K. Chaturvedi

This complaint alleges manufacturing defects in the BMW car purchased by her from OP on 15.03.10. It is alleged that on 11^th August 2010, the car broke down on DND Flyway. It is alleged that the ignition of the car was turned off, while waiting for the traffic to move after which the car did not start and engine seized.  The board computer showed engine fault. Complainant informed OP2 to pick up the car. The OP informed the complainant that engine of the car had suffered from a mechanical damage from hydraulic malfunctioning due to ingestion of water trough engine air intake system. Complainant was informed that such damages were not covered under warranty and these are not manufacturing defects. They raised a bill of Rs.1,71,693/- for repair, which shocked the complainant. It is alleged that OP has assured that car is suitable for Indian Roads, which was a false representation. Complainant served legal notice demanding refund of money paid by her. Not finding a favorable response, the complaint of deficiency for refund of money for repair and mental agony and litigation expenses, is filed.

OP filed a reply stating that BMW are the best card sold globally with finest engineering. It is stated that there was no defect of any kind since the purchase of car in March till the day of incident on 11.08.10. It is alleged that as there were very heavy rains in Delhi, there was water logging on the roads. It is alleged that BMW car have the air intake at the height of 68 cm (2.23 ft), creating a buffer of 37.52 cm (1.23 ft) for covering water movement. It is stated that unless the car is driven in more than 30 cm of standing water, water cannot enter the engine through the intake system. It is alleged that after incident there have no report or trouble of engine. It is stated that there was no manufacturing defect, as car is approved by Automobile Authority in India. It was a user related damage and not covered under warranty.  

We have considered the rival case, OP has contended in the written submission that warranty of two year is not extended to cover the negligent handling of the car by its owner, as that was the case with the complainant. It has placed on record a copy of warranty terms & conditions, as Exh.OP1/2. It is contended that it was a case of user related damage and not a manufacturing defect and this was not covered under the terms of warranty.

OP has also taken a legal plea that the complainant company has got the insurance claim of the vehicle, and for the balance, it cannot file this complaint. OP has relied on a judgement of Hon’ble National Commission in the case of M/s. A.B Motors Pvt. Ltd. Vs. M/s. Admiral Impex Pvt. Ltd. & Anr. in Revision Petition no.1588/2006, where the Hon’ble National Commission in a similar case observed as under:

“The short point for consideration in this revision petition, therefore, is as to whether the complainant would be entitled to claim the balance amount from the petitioner/dealer when he has filed his claim before the Insurance Company, who have only partly reimbursed the expenditure incurred by him on the repair of the vehicle?  The answer to this, in our view, would be in the negative.”

In view of the above decision of National Commission, we adopt the reasoning of above order and dismissed the complaint.

Though, we have dismissed the complaint in the light of observation of Hon’ble National Commission in above case. We would like to record our observation on the plea of OP Company that it is not a warranty cover defect but a user damage against instruction in owner’s manual.

The precise question is whether ingestion of water from the engine air intake system is not a design fault from the view point of consumers from countries hearing heavy rainy season or monsoon season as in India. The instructions in the owner’s manual state that car is not to be driven in more than 30 cm of water which would imply that car cannot be taken out for driving during rainy seasons, as it is impossible to gauge the depth of water normally at any point of time, unless water is touching the ground level clearance. The instruction is Manual would imply that once the car is taken out on road and water is found accumulated, the car is not be driven and stopped and whole traffic behind is to be held up because the front car is BMW car, which cannot be driven in water. Such instructions, which are unworkable on Indian roads and Indian heavy rain season/monsoon season, are not implementable due to fault or in appropriate design of the car. Most of the other ordinary cars of Indian make are not affected by water logging. Similar faulty design is seen in Skoda cars.

In our considered view, warranty conditions cannot be confused with instructions in owners’ manual, to call it as user damage due to negligent driving, unless it is first accepted that BMW cars are for dry weather and should not be driven out in rainy season. Such a car would be called as inherently suffering from manufacturing/design defect.

In our considered view, BMW cars sold in India are suffering from faulty design and are suffering from imperfection, and not suitable for  the heavy rainy seasons of India and Indian road conditions, which do not compare favorably well with European weather conditions and road conditions, where water logging is absent due to normal and sporadic rains.

File be consigned to record room.

Copy of the order be sent to the parties free of cost.

 

        Pronounced in open Court on 21.04.2015.

 

 

(C.K.CHATURVEDI)

PRESIDENT

 

 

(S.R. CHAUDHARY)                 (Ritu Garodia)

MEMBER                                  MEMBER