Karnataka

Bangalore 4th Additional

CC/14/789

M/s. Vaishali S. Sounsuddi W/o. Mr. Shankar Sounsuddi Aged about 36 Years - Complainant(s)

Versus

M/s. General Motors India Pvt Ltd - Opp.Party(s)

Sri. Chethan

06 Sep 2018

ORDER

Complaint filed on: 30.04.2014

                                                      Disposed on: 06.09.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027        

 

CC.No.789/2014

DATED THIS THE 6^th SEPTEMBER OF 2018

 

PRESENT

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

	Complainant/s	V/s	Opposite party/s
	Mrs.Vaishali S Sounsuddi, W/o Shankar Sounsuddi, Aged about 36 years, R/o No.A-5, Flat No.30, Veerapareddy Layout, Munnekollala, Bangalore-37.   By.Adv.Chethan.B	1	M/s General Motors India Pvt. Ltd., Chandrapura Industrial Estate, Halol, District Panchmahals, Gujarat-389351.
		2	The Manager, M/s Trident Automobiles (P) Ltd., No.14, Langford Avenue, Langford Road, Richmond Circle, Bangalore-560 025.
		3	The Manager, M/s Trident Chevrolet Service Centre, Old Airport Road, Behind Leela Palace, Bangalore-560 008.   By.Adv.Adarsh Gangal-OP-1 B.Adv.Ashlar Law-OP-2

 

PRESIDENT: SRI.S.L.PATIL

 

1.       The Complainant has filed this complaint as against the Opposite Parties directing to deliver fully rectified Chevrolet Beat Car bearing No.KA-51-MD-6223 or return the amount paid to the OP at the time of purchase with interest, to pay Rs.1,00,000/- as compensation by way of damages for the deficiency of service, to pay costs of this proceedings and such other reliefs.

 

2.       The brief facts of the case of the complainant are that the complainant is an employee at M/s Accenture Services Pvt.Ltd., Bangalore having employee code No.10583730 and she has obtained a brand new Chevrolet Beat Car bearing No.KA-51-MD-6223 on lease from her employer under car lease scheme introduced by her employer on executing a lease agreement dt.17.1.2013. The OP-1 is the manufacturer of the above said car and OP-2 is a showroom, who delivers the said car. The complainant got delivery of the brand new car bearing No.KA-51-MD-6223 on 11.2.2013 under the lease agreement dt.17.1.2013 and she is using the above car as per the instruction in the owner manual. The complainant on 7.3.2013 as per owner manual got first service of the above said car from OP-3 and is using the said car. The complainant had also engaged the service of the duly license driver to drive the above subject car under agreement dt.8.7.2013 with M/s Four Wheel Driver Service, Bangalore and was using the car for her personal purpose. This being the case, on 23.7.2013 complainant along with her family had been to Mysore in the said car with the driver and she returned to Bangalore on 24.7.2013. Thereafter in the morning, when the driver of the above said tried to start the car and engine didn’t start and the complainant called the help dusk of OP-3 and after examination by the personal of OP-3, it was advised to shift the car to service centre for diagnosing the issue and as such, the car was towed to nearest service centre i.e. OP-3 requesting to diagnose the cause and on diagnoses, water it was found in the engine oil. To the shock and dismay on 9.9.2013, the OP-3 had given a estimate of the repair charges for Rs.1,03,672/- and on enquiry, the OP-3 disclosed the seizure of the above said engine. The above cause of the seizure of the engine is only to manufacture defect solely and since the said car is within the warranty period inspite of several request to OP-3 and the same is not been rectified rather given evasive reply absolving from their legal responsibility. The complainant all these days contacted the OP-3 telephonically and personally to deliver the rectified the said car but till date same is not complied. The complainant had also issued legal notice dt.17.2.2014 to the Ops to immediately deliver fully rectified the said car within 15 days from the date of the receipt of this notice, but the Ops have given evasive reply. Hence, the complainant submits to allow the complaint.  

 

3.       The notice was ordered to the Opposite Parties. The OP-3 has not filed version. The Opposite Parties 1 and 2 did appear and filed their version by denying the contents of the complaint filed by the Complainant.  

 

4.       The sum and substance of the version filed by the OP-1 are that the complaint is wholly false, frivolous and vexatious and filed with the malafide intention of making unlawful gains to the complainant and to cause unlawful loss to the OP-1. The OP-1 is General Motors India Pvt. Ltd., which is a world renowned car/automobile manufacturer whose vehicles are sold through-out India and is known for its quality vehicles. The cars manufactured by General Motors India Pvt. Ltd., including Chevrolet Beat LS Diesel are of international quality standards and the same are sold throughout India and also exported to other countries. These cars undergo several tests and for quality, design, performance, safety, etc., both internally and by independent authority like “International Centre for Automotive Technology” ( iCAT) Manesar, and after they pass all tests, these cars are certified and only thereafter, they are made available to customers. The OP-1 submits that the vehicle in question was purchased by Accenture Services Pvt. Ltd., Bangalore and the same is also registered in the name of the said company only and as per alleged statement of the complainant, the complainant has taken the vehicle on lease from the said company. The complainant does not have locus-standi to file the complaint and the complainant is not a proper party to this proceedings. The complaint is also bad for non-joinder of necessary parties and for mis-joinder of parties. The relevant portion of the warranty is extracted herewith for ready reference:

“Liability of under this new vehicle warranty is limited to the value of the service, repairs/replacement of parts found to be defective within the warranty period. Beyond servicing and/or repairing defective parts in the vehicle, does not undertake to replace the vehicle/ or reimburse the purchaser by paying of any money in respect of the vehicle purchased by them”

The warranty will cease to exist in following conditions:

Fuel system damage caused by water or other foreign matter in the fuel system

Damage to the engine while driving in water logged conditions or entry of water into the engine.

 

The OP-1 submits that on thorough inspection of the vehicle, it was found that failure of engine was due to hydrostatic lock, which is not covered under the provisions of the warranty. The damage to the engine block and connecting rod are irrefutable proof of engine damage on account of water entering into the engine of the vehicle. The phenomenon of damage taking place on account of water entering into the engine of the vehicle is known as “hydrostatic lock”. The phenomenon of hydrostatic lock has been judicially taken notice of in several judgments and rulings of Hon’ble State Commissions and Courts of law. “Hydrostatic lock” is not a manufacturing defect. When the vehicle is driven through water logged areas and if the depth of the water is more than the height of air intake of the vehicle; it is possible for water to enter the combustion chamber of the engine of the vehicle. Again, if the vehicle is driven at speed through waterlogged areas creating high sprays of water; then also it is possible for water to enter the combustion chamber of the engine of the vehicle. As per instructions contained in the warranty terms and conditions, vehicles are prohibited from being driven into waterlogged areas. In automobile engines, pistons compress gaseous mixture in the combustion chamber in order to make the engine work. Once water enters into the combustion chamber, the pistons encounter difficulty in compressing the gaseous mixture. The conflicting forces created by the presence of water in the combustion chamber, depending upon the amount of water that has entered into the combustion chamber and the speed of the vehicle at such point of time, causes varying levels of damage to pistons, connecting rod and the engine block. In the circumstances, there is no manufacturing defect whatsoever and the complaint is liable to be dismissed.    

 

          5.       The OP-1 further submits that the car bearing registration No.KA-51-MD-6223 registered in the name of the Accenture Services Pvt. Ltd., was received at the service station on 25.7.2013 by towing. When a preliminary investigation was done, it was not cranking/starting. On checks being made with respect to the electrical components, it showed that there were no issues with respect to electrical systems of the car. On further diagnosis, it was found that water was mixed with engine oil.  This indicated possibility of hydrostatic lock which could affect the performance of the engine. The phenomenon of hydrostatic lock mainly arises on a possibility of vehicle being driven in deep flooded water by the complainant/its driver and not to any faulty design as falsely alleged by the complainant. These observations clearly indicate that the concern noticed in the vehicle is not due to any manufacturing defect. These observations were also discussed in complainant’s presence during her visit to the service centre on 2.8.2013.  The damage is caused due to driving the car in the deep flooded waters and possible entry of water into the engine. The complainant/her driver should have taken care not to drive the car into deep flooded water, where the water level is so high that it would enter inside the engine. In the circumstances, any repair or replacement of components due to hydrostatic lock for reasons stated above is beyond the purview of warranty.  On these grounds and other grounds prays for dismissal of the complaint.

 

6.       The sum and substance of the version filed by the OP-2 are that the complaint by the complainant is misconceived and the contentions raised concerning OP-2 are misleading, erroneous and devoid of any merits.  The complainant is not a consumer as defined under CP Act. The complainant does not have locus standi to file the complaint. The vehicle was purchased by one M/s Accenture Services Pvt. Ltd., Bangalore and basis on the statement of the complainant, the complainant has taken the alleged vehicle on lease basis by executing a lease agreement and the present complaint is also bad for non-joinder and mis-joinder of parties.  The OP-2 is engaged in the business of sales and servicing of automobiles. The complainant has bought her Chevrolet Beat bearing registration No.KA-51-MD-6223 from OP-2. The OP-2 submits that the complainant brought her car to the premises of OP-2 on 25.7.2013, alleging that the car was not starting. Upon examination it was discovered that water had entered the engine due to which the engine had seized and the same was intimated to the complainant on 31.7.2013 and she was furnished an estimate for an amount of INR.1,03,627/- for the repair to the said car. The reasons for the car not starting is due to the fact that water had entered into the engine compartment, which had led to the mixture of the water with the engine oil, which caused the engine of the car to seize. The damage that occurred due to the negligence of the complainant falls outside the terms of warranty which is clearly stated in the owner’s manual of the car. The limitations to the warranty expressly exclude damage to the engine due to water entering the engine. The exception to the warranty expressly states as follows:

“Damage to the engine while driving in waterlogged conditions of entry of water into the engine”.

The OP-2 has informed the complainant that the alleged defect to the car falls outside the ambit of the warranty for the car. The complainant however denying the same has refused to pay estimated amount and to repair the said car. The OP-2 submits that following the representation made to the complainant that the damage cannot be covered under the official warranty of the vehicle, the complainant has failed to act in a bonafide manner and has continuously tried to intimidate the OP-2 with threats of legal action. Further, it is to be noted that the nature in which the car was used by the complainant is in question itself, as a reasonable amount of care was not taken by the complainant so as to ensure that the car was not used in such a manner so as to void the warranty. The complainant is also liable to pay parking charges to this OP. Further, it is pertinent to bring to the attention to this Court, the time during which the complainant states that the defect in the car arose, there was a significant amount of rainfall in the State and in the city as well. Based on these factors, it is reasonable to state that the car’s engine has seized because the driver of the said vehicle did not take reasonable precautions to ensure that water did not enter the engine bay and the engine block itself.    On these grounds and other grounds prays for dismissal of the complaint.

 

7. The Complainant to substantiate her case, filed her affidavit evidence and produced documents. The Opposite Party has also filed their affidavit evidence and produced documents. The Complainant as well as Opposite Parties, filed their written arguments. Heard both sides.                                                                                                                                                                                                                                                                                                                                                                                              

           

8. The points that arise for our consideration are:

1) Whether the complainant is a consumer comes under the

     definition of section 2 (1) (d) of CP Act?

2) Whether the Complainant proves the deficiency in service on

              the part of the OPs, if so, whether she is entitled for the relief

              sought for?

          3) What Order?

                  

 

9.  Our answers to the above points are as under:

 

Point No.1: Affirmative 

Point No.2: Negative

Point No.3: As per the final order for the following

REASONS

 

10. POINT NO.1 : We have briefly stated the contents of the complaint as well as the version of the Opposite Parties. The OP-2 has taken specific contention stating that the complainant is not a consumer as defined under CP Act. Further, the complainant has no locus standi to file the complaint. The said vehicle was purchased by one M/s Accenture Services Pvt. Ltd., Bangalore and basis on the statement of the complainant, the complainant has taken the alleged vehicle on lease basis by executing a lease agreement and the present complaint is also bad for non-joinder and mis-joinder of parties.

 

11.     We place reliance on the contents of the complaint wherein the complainant has specifically stated that she is an employee         at M/s

Accenture Services Pvt.Ltd., Bangalore and she has obtained a brand new Chevrolet Beat Car bearing No.KA-51-MD-6223 on lease from her employer under car lease scheme introduced by her employer on executing a lease agreement dt.17.1.2013. The copy of the lease agreement is at document No.2 at ink page No.9 produced by the complainant with list dt.30.4.2014 wherein at Para-2 (K & l) reads as under:

k. That in the event of cessation of my employment with the company for any reason whatsoever and or in the event of my participation in company’s Global Carrier Program, I will forthwith acquire the car at a lease termination value determined by the Leasing Company. I will notify the company immediately of any event coming to my notice that would result in cessation of my employment with the company and or in the event of receiving confirmation regarding my participation in Global Carrier Program and forthwith initiate the process to acquire the vehicle.

l. “to pay the complete consideration of the vehicle prior to my last working day with the company”

 

If the above conditions are strictly construed, she has taken the car on lease which is in her lawful position by paying the consideration. Section 2 (1) (d) of the CP Act clearly speaks if the service is obtained by paying the consideration or agreed to pay consideration or deferred payment is a consumer. In this view of the matter, we come to the conclusion that the complaint filed by the complainant is maintainable and the presence of M/s Accenture Services Pvt. Ltd., is not necessary. Accordingly, this point No.1 is answered in the affirmative holding that the complainant is a consumer.

 

12.     POINT NO.2:        In the entire contents of the complaint, the complainant nowhere whispered that the damage was due the driving in water logged conditions or entry of water into the engine. But the Ops 1 and 2 have taken the specific contention stating that when the preliminary investigation was done, the said vehicle was not cranking/starting. On checks being made with respect to the electrical components, it showed that there were no issues with respect to electrical systems of the car. On further diagnosis, it was found that water was mixed with engine oil.  This indicated possibility of hydrostatic lock which could affect the performance of the engine. The phenomenon of hydrostatic lock mainly arises on a possibility of vehicle being driven in deep flooded water by the complainant/its driver and not to any faulty design as falsely alleged by the complainant. These observations clearly indicate that the concern noticed, in the vehicle is not due to any manufacturing defect. These observations were also discussed in complainant’s presence during her visit to the service centre on 2.8.2013.  The damage is caused due to driving the car in the deep flooded waters and possible entry of water into the engine. Hence, the complainant and her driver ought to have taken care not to drive the car into deep flooded water, where the water level is so high that it would enter inside the engine. Hence, any repair or replacement of components due to hydrostatic lock for reasons stated above is beyond the purview of warranty. Hence, the estimate repair on chargeable basis, but not free of cost. In this context, the Ops have placed reliance on the unreported decision of the Delhi State Commission in the case of Ravinder Singh Mehta V/s Auto Vikas Sales and Services Pvt. Ltd., wherein Para- 7 to 11 held as hereunder:

7. It is admitted case of the complainant himself that the engine of the vehicle stopped running while it was made to wade through the water-logged road. This could happen only when water enters the combustion chamber of the engine. In the present case despite appellants varying versions, it is abundantly clear that the vehicle, which was made to run by starting its engine after it had stopped while wading through water-logged area, it was bound to result in serious damage to the engine because of presence of water inside the combustion chamber of the engine.

8. In such circumstances, appellant asking for repair charges to be borne by the manufacturer i.e. Respondent No.2 on the ground of manufacturing defect in the vehicle that, too, after having driven the vehicle 27,217 km for more than 1 year, as per the job card (Annexure R-2/B), appears to us quite un-reasonable & unjustified.

9. The following observations made in the impugned order are based on sound reasoning and cannot be faulted with:

      Once the car had stopped functioning on the water blocked road and had to be towed away to the complainant’s residence, he should not have persisted in having started the same and took the same to the workshop while driving the vehicle where he was told that the connecting rod had broken. In this job card, it is stated that complainant was told that Rs.2,500/- will be charged for checking labour. It is further evident from another job card referred to during arguments by the complainant himself that while he took the car driving it to OP-1s workshop, he complained the following defects:

1. Repair
2. Engine noise check
3. General Check
4. Steering noise on turning check

It is important to note that prior to the car having stopped functioning on the water blocked road, complainant had not complaints about the engine noise and steering noise. These defects noticed by the complainant while carrying the car while driving it to OP-1s workshop further support the version of OP-2, the manufacturers that defects occurred in the car on account of its driver having persisted to drive it despite water having entered inside.

10. We are, therefore, of the considered view that appellant has failed to establish any manufacturing defect in the vehicle or prove deficiency-in-service on the part of either of the Respondents.

11. Appeal accordingly has not merit and hence, it is liable to be dismissed. Same is dismissed. Cost easy.

 

          13.     To falsify the contention taken by the OP, the complainant has not put any extra effort by obtaining expert report in respect of manufacturing defect. Mere allegations stating that the car was found to be defective within the warranty period, which is a manufacturing defect, cannot be acceptable. In the instant case, further diagnosis, it was found that water was mixed with engine oil.  This indicated possibility of hydrostatic lock which could affect the performance of the engine. The phenomenon of hydrostatic lock mainly arises on a possibility of vehicle being driven in deep flooded water by the complainant/its driver and not to any faulty design as alleged by the complainant. Further, the Op has taken specific contention stating that the defect in the car arose, there was a significant amount of rainfall in the State of Karnataka as well as in the Bangalore city. Based on these factors, it is reasonable to state that the car’s engine has seized because the driver of the said vehicle did not take reasonable precautions to ensure that water did not enter the engine bay and the engine block itself. If the damage to the engine while driving in water logged conditions or entry of water into the engine, is not comes under the warranty clause. In this context, the Ops draw our attention to the contents of the lease agreement at Para-2 sub clause (h) wherein it is stated “to use the vehicle in accordance with instruction as indicated in the Manufacture’s Manual of vehicle”. Referring to this clause submits that the complaint has not strictly adhered the user manual.

 

          14.     Viewed from any angle, it is abundantly clear that the complainant/ her driver have not taken proper care as the said vehicle was driven in the deep flooded water and the water was mixed with engine oil. This indicated possibility of hydrostatic lock which could affect the performance of the engine, hence not comes under the warranty clause. The complainant has left her car for repair, which is to be on the basis of chargeable, but not free of cost. Accordingly, we come to the conclusion that there is no any deficiency of service on the part of the Ops. Accordingly, we answered point No.2 in the negative. 

 

15.     POINT NO.3: In the result, we pass the following:

 

ORDER

 

The complaint filed by the Complainant is dismissed.

Looking to the circumstances of the case, we direct both the parties to bear their own cost.

Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open Forum on 6^th September 2018).

(ROOPA.N.R)     MEMBER

(S.L.PATIL)     PRESIDENT

 

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Mrs. Vaishali S. Sounsuddi., who being complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Doc-1	Invoice dt.4.1.2013
Doc-2	Company lease agreement dt.17.3.2013
Doc-3	Certificate of registration dt.1.2.2013
Doc-4	Repair order dt.7.3.2013
Doc-5	Joint agreement dt.8.7.2013
Doc-6	Driving license of Uthayamani
Doc-7	Repair order dt.25.7.2013
Doc-8	Request letter dt.17.8.2013
Doc-9	Legal notice dt.17.2.2014 along with original postal acknowledgement
Doc-10	Reply notice dt.5.3.2014

 

 

 

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

Shrisha Kadandale, Authorized Signatory, who being OP-1 was examined.

G.N.Narasimhan, Authorized Representative., who being OP-2 was examined.

Copies of Documents produced on behalf of OP   

 

Doc-1	iCAT certificate
Doc-2	Original warranty
Doc-3	Warranty terms and conditions
Doc-4	E-mail correspondences between them.

 

 

 

(ROOPA.N.R)       MEMBER

(S.L.PATIL)    PRESIDENT