COMPLAINT FILED ON: 31.08.2009<br /> DISPOED ON: 07.08.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 7TH AUGUST 2010<br /> <br /> PRESENT:- SRI. B. S. REDDY PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> COMPLAINT No.2110/2009<br /> <br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> OPPOSITE PARTIES<br /> <br /> <br /> <br /> <br /> Sri M.Chandrappa,<br /> S/o Late Munireddy,<br /> Aged about 41 years,<br /> R/at No.88/1, 8th Block,<br /> Koramangala Village,<br /> Near Anjaneya Temple,<br /> Bangalore – 560 095.<br /> <br /> Advocate: Sri. C.V. MuniReddy<br /> <br /> <br /> V/s.<br /> <br /> <br /> 1. The Managing Director,<br /> M/s Skoda Auto India <br /> Pvt. Ltd.,<br /> Plot No.A-1/1, Shendra,<br /> Five Star Industrial Area,<br /> MIDC, <br /> Aurangabad – 431 201.<br /> <br /> 2. The General Manager,<br /> M/s Skoda Auto India <br /> Pvt. Ltd.,<br /> No.3, Lavelle Road,<br /> Bangalore – 560 001. <br /> <br /> <br /> 3. The General Manager,<br /> M/s Tafe Access Ltd., <br /> No.53, St. Marks Road,<br /> Bangalore – 560 001.<br /> <br /> Advocate for OPs 1 to 3: <br /> Sri. K. Chetana <br /> <br /> 4. M/s Tata AIG General <br /> Insurance Company Ltd., <br /> No.69, 2nd Floor, <br /> J.P. and Devi Jambukeshwar <br /> Arcade,<br /> Millers Road,<br /> Bangalore – 560 052.<br /> <br /> Advocate: Sri. Y.P.Venkatapathi<br /> <br /> 5. M/s Vinayak Cars Pvt. Ltd.,<br /> No.50/2, Old Madras Road,<br /> T.C. Palya Cross,<br /> Garden City College Road,<br /> Bangalore – 560 049.<br /> <br /> Ex-parte<br /> <br /> O R D E R<br /> <br /> SRI. B.S. REDDY, PRESIDENT<br /> <br /> The complainant filed this complaint u/s 12 of the C.P. Act, 1986 seeking direction to the OPs 1 to 3 to take back the used manufacturing defective car bearing No.KA-53 P-999; to direct OPs 1 to 4 jointly and severally to pay an amount of Rs.16,00,000/- value of the car with damages to an extent of Rs.1,00,000/- and incidental expenses of Rs.2,50,000/- with costs of the litigation on the allegations of deficiency in service on the part of the OPs. <br /> <br /> 2. In the complaint it is stated that on 31.01.2008 the complainant purchased “Skoda Laura” new branded show room car from OP-2 i.e., OP-1’s authorized dealer for a basic price of Rs.16,11,607/-. OP-3 who is the authorized dealer of OP-1 and 2 delivered the car bearing registration No.KA-53 P-999 to the complainant. From the date of purchase complainant utilized the car without any obstructions till the date 03.07.2009 when he found the very important manufacturing defect in the engine while he was proceeding from Koramangala to Madiwala i.e., Sarjapura – Bangalore Road. Before finding the manufacturing defect in the engine on 11.06.2009 the complainant left his car for second free general service and other check ups in a authorized service station under the Tafe Access Ltd., and thereafter 18.06.2009 the said service station has delivered the car to the custody of the complainant by collecting sum of Rs.8,494/- towards repair and other charges. After receiving the said car without any problem till the date of major manufacturing defect found in the engine on 03.07.2009 at about 2.30 p.m. when he was proceeding for his work from Koramangala to Madiwala side, during and in the course of his driving he heard some engine burst sound and immediately he stopped his car and checked the car where exactly it has happened. Thereafter the complainant came to know that the car engine was bursted because of manufacturing and technical defect in assembling the engine spare parts while manufacturing. The complainant tried to contact the authorized service stations to take his break down car for repairs. However OPs-2 and 3 utterly failed to comply the problem of the complainant. The complainant approached some private spot crane service and towed his vehicle from Madiwala to OP-3, authorized service centre. OP-3 informed the complainant that the existing Tata AIG General Insurance Company was not tie up with the Tafe Access Ltd., Hence the directed the complainant to shift his car to the Vinayak Cars Private Ltd., i.e., OP-5. The complainant shifted his car to the OP-5 by paying another Rs.3,000/- towards towing charges. The concerned officials of OP-5 inspected the car intimated the major defect found in the car to OPs 2, 3 and 4 insurance company. Thereafter one of the surveyor of the insurance company visited the OP-5 and inspected the vehicle and obtained the colour photos of the car engine and advised the officials of OP-5 to keep the car as it is till the OP-4 gives its opinion / report to get it repaired the said defect by way of claiming insurance. OP-4 had issued insurance policy in respect of car it was valid from 26.06.2009 to 25.02.2010. Though the insurance was in force, OP-4 did not come forward to fulfill defects found in the vehicle in question and after prolonging number of days it had come to the conclusion that due to under chassis way damage, the said engine was bursted due to manufacturing defects and hence OP-4 is not liable to fulfill the claim of the complainant and further advised to approach OPs-2 and 3 to sort out the claim. The complainant approached OPs-2 and 3 and requested to get repair the engine as the warranty period of 2 years has not been completed. OPs-2 and 3 deputed one of its expert in auto mobiles to OP-5 and inspected the car and its engine and subsequently gave opinion stating that there are no hit marks or scratches or dent on the protection shield. Cylinder No.4 piston is there in cylinder valve but without piston pin and connecting rod and con rod cap. The connecting rod got bend due to heavy load in combustion chamber and the same was smack / hit the cylinder block. The air-filter found soak / saturated in water logged area. After removing cylinder head cover, found water particles (find the attachment) water is key cause to develop heavy incompressible pressure in combustion chamber. Even the mark found on the surface of the piston (valve strikes on the piston). The timing belt was intact and since the vehicle was driven through water logged area; the case is not entertained for warranty any more. After the said report of the expert, the complainant once again approached OPs-2 and 3 and explained the fact of impact and due to mechanical and manufacturing defect of engine the said engine burst was took place and demanded to replace the automobile spares with free of costs and solve the major, technical and manufacturing defect of the engine. Inspite of request and demands OPs-2 and 3 utterly failed, neglected and refused to give proper service in terms of the Skoda Laura service schedule and in accordance with page 12, condition No.2 it is bounden duty of the OP No.2 and to comply the manufacturing defect of a car in question. The said major defect in the engine was not due to the vehicle driven through water logged area and no point of time the complainant did not tried or driven his car in a water logged area. OPs-2 and 3 are liable to pay costs of the spares with free labour service. After refusal of OPs-2 and 3 to carry out and rectify the manufacturing defects of engine, the complainant obtained estimate of repairs amounting to the tune of Rs.4,67,201.89 paise excluding other service charges. After receiving the repair estimate the complainant approached OPs on several occasions to set right the major manufacturing defect of the car or else to give new branded vehicle. The efforts and correspondences made by the complainant with OPs, totally ended in vain and just because of the same, the complainant is put to untold hardship, mental agony, financial difficulties, on the other hand he is not in a position to concentrate his private business including social and political activities. Further the complainant is not in a position to proceed from one place to another place well within time to carry out his daily business and other political activities, he used to spend every day a sum of Rs.2,000/- to city taxi services to carry out his business and other political activities from the date of major manufacturing and technical defect found in his car on 03.07.2009 onwards and he is continued to be paying everyday. Hence OPs-1 to 4 are jointly and severally liable to pay the global compensation, damages including the cost of the repair work and costs of the spares estimated by the OP-5. OPs-1 to 3 refused to extend proper service. On 04.08.2009 the complainant caused legal notices calling upon OPs to rectify the major manufacturing defect in respect of car and further demanded to pay damages and other consequential reliefs. OP-3 had issued reply notice, notice caused to OP-1 has not been returned. OPs deliberately avoiding to settle the claim of complainant in terms of policy and other conditions. Hence the complaint seeking the reliefs stated above. <br /> <br /> 3. On appearance, OPs-1 and 2 filed joint version and OP-3 filed version contending that the complainant has not approached the Forum with clean hands, the complaint is frivolous and vexatious filed with sole intention of harassing the OPs. It is denied that there has been any manufacturing defect or deficiency in service on the part of the OPs. It is admitted that the complainant purchased a Skoda Laura bearing registration No.KA-53 P-999 from the show room of OP-3, the authorized dealer of manufacturing company. The Complainant has been running the car without facing any problem whatsoever till 03.07.2009. The car has run more than approximately 20,151 kms as on 11.06.2009. OP-3 admits that the complainant brought the car to the work shop on 11.06.2009 for second free service and after the service the car was delivered to the complainant on 18.06.2009. OPs are not aware as to where the complainant was when he faced a problem with the car or whether he heard any noise from the car. It is denied that the sound was due to manufacturing and technical defect in assembling the engine parts while manufacturing. The complainant has confused himself regarding the entity of Bangalore showroom. The showroom belongs to authorized dealer Tafe Access of manufacturing company and not the manufacturing company. OP-3 admits that the complainant brought the car for repairs and enquired whether OP-3 had a tie up with Tata AIG General Insurance Company for cashless transaction. OP-3 informed the complainant that they do not have tie up for cashless transaction. Thereafter the complainant enquired with OP-5 and has taken car to the workshop; OP-5 informed that the surveyor visited their workshop on 06.07.2009 and found no impact / damage from the under body but the engine casing above the skip place was found damaged. OPs-1 and 2 deputed one of the experts to examine the car and the expert examined the car and gave a report that that there are no hit marks or scratches or dent on the protection shield. The air filter was found soaked / saturated at both ends, which indicates that the car had been driven in water logged area. Water key caused to develop heavy incompressible pressure in combustion area. Since the car was driven through water logged warranty. There is no manufacturing defect in car. The car would not have moved even for a few kms let alone 20,151 kms if there was indeed manufacturing defect. The problem with the car is solely due to driving the car through water logged area, which is an act of the complainant. OPs cannot be held liable for negligent act of the complainant. It is denied that the complainant has spent Rs.2,000/- every day for his travel due to manufacturing defect in the car. It is denied that the OPs have failed to render or refused to extend proper services. It is admitted that the complainant has sent the legal notice; the OPs approached the complainant and explained the facts to him. There is no cause of action for filing the complaint. OPs are not liable to pay any amount. Hence it is prayed to dismiss the complaint with exemplary costs. <br /> <br /> 4. OP-4 filed version contending that there is no cause of action for filing complaint, as there is no deficiency of service on the part of the OP. The notice issued by the complainant was suitably replied; no consequential losses, manufacturing defect are covered under the policy which has been made here and also the main claim made herein alleging that the value of the alleged damage caused because of the burst of the engine. The alleged damage is not caused the any of the risks covered under the policy. The particulars furnished by the complainant and the surveyor observation lead to the conclusion that, it is a manufacture inherent defect and a mechanical defect, the loss is not covered under the policy. According to the surveyor, the loss was caused due to mechanical failure of the engine components on account of presence of water in the combustion chamber. The surveyor has further confirmed that there is no damage under chassis as alleged in the claim form or claim intimation. The complainant had not exercised proper care and caution as a man of ordinary prudence; he could have avoided incidents. It is submitted that the surveyor inspected the vehicle it is not admitted that he advised to keep the vehicle as it is till he gives his opinion to get the repaired by making insurance claim in respect of the insurance. Insured is aware that his claimed damage to the vehicle is not covered under the policy. OP has sent the letter of repudiation dated 13.08.2009 to the complainant brining to his knowledge as to why his claim is not able to be honoured. The legal notice has been suitably replied by this OP. There is no deficiency of service on the part of the OP; the complainant is not entitled for the relief sought. Hence it is prayed to dismiss the complaint with exemplary costs. <br /> <br /> 5. OP-5 inspite of service notice failed to appear, hence placed ex-parte. <br /> <br /> 6. In order to substantiate the complaint averments, the complainant filed affidavit evidence and produced documents. The Company Secretary in M/s Skoda Auto India Private Ltd., filed affidavit evidence on behalf of OPs-1 and 2 and produced documents. Sri. M.S. Vishwanath employed as Head-Service in OP-3 filed affidavit evidence for OP-3. Umesh Bagri working as Manager Claims for OP-4 filed affidavit evidence and produced documents with list. <br /> <br /> 7. Written arguments filed by both the parties, arguments heard. Points for consideration are: <br /> <br /> Point No.1:- Whether the complainant proved the<br /> deficiency in service on the part of the <br /> OPs?<br /> <br /> Point No.2:- Whether the complainant is entitled for<br /> the relief’s now claimed?<br /> <br /> Point No.3:- To what Order?<br /> <br /> 8. We have gone through the pleadings of both the parties, the documents produced and affidavit evidence and noted the points urged in the written arguments. We record over findings on the above points: <br /> <br /> Point No.1:- Negative. <br /> <br /> Point No.2:- Negative. <br /> <br /> Point No.3:- As per final Order. <br /> <br /> R E A S O N S<br /> <br /> 9. At the outset it is not at dispute that the complainant purchased “Skoda Laura” new branded car on 31.01.2008 from the show room of OP-3, the authorized dealer of manufacturing company Skoda Auto India Private Ltd., for a basic price of Rs.16,11,607/-. The registration number of the said car is KA-53 P-999. The complainant used the said car without any complaints till the date 03.07.2009 when he stated to have found manufacture defect in the engine; when the engine was bursted while he was proceeding in his car from Koramangala to Madiwala side. It is alleged that complainant came to know that the car engine was bursted because manufacturing and technical defect in assembling the engine spare parts while manufacturing. OPs-1 and 2 are Managing Director and General Manager of manufacture company. OPs-1 to 3 denied the fact of any manufacturing defect in the vehicle, but their defence is the car had been driven in water logged area, water was the key cause to develop heavy incompressible pressure in combustion area. The damage occurred as the car was driven through water logged area and the same cannot be considered under the warranty. The car does not have any manufacturing defect, the vehicle would not have moved even for a few kms let alone 20,151 kms if there was a manufacturing defect. <br /> 10. Out of the documents marked as 1 to 9 produced by OP-4, document No.7 is the intimation cum preliminary claim form of the complainant lodged before OP-4 claiming the insurance for the damage of the vehicle. In the said claim form while furnishing the description of accident he has stated that while he was passing on Koramangala 100 ft Road suddenly one speed breaker was came, he did not control the vehicle and driven over the speed breaker, due to this under chassis was damaged. To consider the said claim surveyor Mr. M.G. Vijay duly licensed by IRDA (Insurance Regulatory and Development Authority) visited OP-5 work shop on 06.07.2009 and examined the vehicle. The surveyor submitted the report on 28.07.2009 as per document No.9 stating that on physical inspection of the vehicle. “There were no external impact on the under chassis of the vehicle. Repairer had estimated damage to the engine assembly. The engine shield was removed from the IV. On removing the oil sump found broken and 2 inches hole was formed. Thru the hole, the broken parts of the 4th cylinder i.e., connecting rod, bearings, gudgeon pin etc., fell down. A big hole was also found in the engine block at the 4th cylinder. With the above nature of damage, the damage claim was referred to M/s Skoda India Ltd., to ascertain the cause of accident. The M/s Skoda India Ltd., sent their observations on 25.07.2009 which clearly indicates that, the above damage have not happened due to external damage. The damage have occurred due to the presence of water in the combustion chamber thru air filter. Since the damage are not due to external means and have developed internally, due to presence of water in the engine, damage do not covers under given policy terms and conditions.” <br /> <br /> Based on the above report of the surveyor OP-4 repudiated the claim as per letter dated 13.08.2009 document No.3.<br /> <br /> 11. Document No.6 Direct Information System Service (DISS) produced by OP-4 goes to show that the experts deputed by OPs examined the car and submitted report stating that “there are no hit marks or scratches or dent on the protection shield. Cylinder No.4th piston is there in cylinder wall but without piston pin and connecting rod and con rod cap. The connecting rod got bend due to heavy load in combustion chamber and the same was smack / hit the cylinder block. The air-filter found soak / saturated at both ends and it purely gives the indication that the vehicle had driven in water logged area. After removing the cylinder head cover, he found water particles (find the attachment). Water is key cause to develop the heavy incompressible pressure in combustion chamber. Even the mark found on the surface of the piston (valve strikes on the piston). The timing belt was intact and since the vehicle was driven through water logged area, the same is not entertained for warranty any more.” <br /> <br /> 12. The learned counsel for the complainant contended that the warranty period is for 2 years, within the warranty period the engine of the vehicle was bursted on account of manufacturing defect and there is no any expert opinion from the OPs side to hold that there was no any manufacturing defect. There was no reason for the complainant to drive the vehicle in a water logged area. Thus it is contended that the burst of engine was due to manufacturing defect of the vehicle. OPs-1 to 3 are liable to refund entire amount paid for the vehicle with compensation.<br /> <br /> 13. In our view on the basis of the documents marked as document No.6 and 9 it becomes clear that water is key cause to develop the heavy incompressible pressure in combustion chamber. Since the vehicle was driven in water logged area, the air-filter found soak / saturated at both ends. Therefore the damage was not on account of manufacturing defect of the machinery, but it is purely on account of the vehicle being driven in water logged area. The approved surveyor and the experts of OPs examined damaged machinery of the vehicle and have clearly opined that the vehicle was driven thru water logged area; on account of the same the machinery was damaged. <br /> <br /> 14. The complainant had taken the vehicle for second free service to OP-3 service station on 11.06.2009. After the service the vehicle was delivered on 18.06.2009 to the complainant. The complainant has issued satisfaction note, the same is produced by OPs with memo. The repair order provides the kms covered at 20,151. The satisfaction note of the complainant reveals that he had taken the road test of his car. Now the car is in good condition and performing to entire satisfaction. Thus it becomes clear that the complainant used the car for about 1½ years with mileage covering 20,151 kms as on 11.06.2009 without any complaints. Only on 03.07.2009 when the engine was bursted complainant has come up with a case of the manufacturing defects in assembling the parts of the engine; the engine has been bursted and damage has been caused. OP-5 has submitted estimation of repairs at Rs.4,67,201=89 in respect of the damage. In the complaint the complainant has not disclosed the description of accident as shown in the claim form submitted to OP-4. We are unable to accept the contention of the complainant that he has not at all submitted the claim form furnishing the history of accident. Since the surveyor submitted report stating that no external damage or external impact was noticed in the vehicle and the loss was caused due to mechanical failure of engine components on account of presence of water in the combustion chamber, there was no damage to the under chassis as alleged in the claim form, OP-4 is justified in repudiating the claim as per letter dated 13.08.2009. <br /> <br /> 15. In case if there was any manufacturing defect in assembling engine spare parts while manufacturing, the complainant would not have used the vehicle for about more than 1½ years covering the mileage of about 20,000 kms. Under these circumstances we are of the view that the complainant miserably failed to prove that there is any manufacturing defect or deficiency in the vehicle with resulted in bursting the engine, but on the other hand it occurred due to seepage of water into combustion chamber as the vehicle might have been driven in a water logged area. The complainant has not taken due care and caution in driving the vehicle and as such warranty does not extend to him. <br /> <br /> 16. It has been observed by the National Commission in voluntary organization in interest of Consumer Education and others V/s Maruthi Udyog Ltd., and others I (1992) CPJ 274 that if the complainant failed to establish that there was any defect or deficiency in the vehicle then the company is not liable to pay compensation if some accident takes place which resulted any injury and loss to the complainant. Under these circumstances we are of the considered view that the complainant is not entitled for any of the reliefs claimed. Accordingly we proceed to pass the following:<br /> O R D E R<br /> <br /> The complaint filed by the complainant is dismissed. Considering the nature of dispute no order as to costs. <br /> <br /> Send copy of this order to both the parties free of costs. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 7th day of August 2010.) <br /> <br /> <br /> PRESIDENT<br /> <br /> MEMBER MEMBER <br /> <br /> Snm:<br />