STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(IN APPEAL NO.250 OF 2010)

                                                                   Date of Institution: 14.07.2010

                                                                   Date of Decision:   21.12.2010

M/s Krishna Automobiles, B.M.W Dealer, Plot No.125, Industrial Area, Phase I, Chandigarh.

……Appellant.

Versus

1.      Sh. Balkar Singh, Plot No.652, Industrial Area, Phase II, Chandigarh.

2.      M/s Future General India Insurance Company, SCOI No.78-79, Sector 17C, Chandigarh.

              ....Respondents.

BEFORE:            S.  JAGROOP  SINGH   MAHAL,  PRESIDING MEMBER.

                        MRS.  NEENA  SANDHU,  MEMBER.

Argued by:   Sh. Aftab Singh Bakshi, Advocate for the appellant.

                        Sh. Hitesh Sood, Advocate for respondent No.1.

                        Sh. Rajesh Verma, Advocate for respondent No.2.

(APPEAL NO.253 OF 2010)

                                                                   Date of Institution: 16.07.2010

                                                                   Date of Decision:   21.12.2010

B.M.W India Pvt. Ltd., DLF Cyber City, Phase II, Building No.8, Tower B, 7^th Floor, Gurgaon 122 002, Haryana.

……Appellant.

Versus

Sh. Balkar Singh, Plot No.682, Industrial Area, Phase II, Chandigarh.

              ....Respondent.

Argued by:   Sh. Arvind Sud, Advocate for the appellant.

                        Sh. Hitesh Sood, Advocate for the respondent.

PER  JAGROOP  SINGH  MAHAL,  MEMBER.

1.                     This order will dispose of two appeals under Section 15 of Consumer Protection Act, 1986  one bearing F.A. No.250 of 2010 filed by M/s Krishna Automobiles/OP No.2 and the other F.A. No.253 of 2010 filed by BMW India Pvt. Ltd./OP No.1 against the order dated 11.6.2010 passed by learned District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter referred to as the District Forum) directing the OPs/appellants to replace the damaged parts of the car and to repair the same to the entire satisfaction of the complainant free of cost and also to pay to him Rs.30,000/- as compensation for mental agony and harassment and Rs.5,000/- as costs of litigation. The amount was to be paid within 45 days from the date of receipt of certified copy of the order failing which they were to pay interest @18% per annum since the date of filing of the complaint till realization of the amount in question.

2.                     The complainant/respondent had purchased a BMW car on 1.3.2009 from M/s Krishna Automobiles, OP No.2/appellant, which was manufactured by BMW India Pvt. Ltd., Appellant/OP No.1 and got it insured with M/s Future General India Insurance Co. Ltd./OP No.3. Once when he was coming to Chandigarh from Delhi at night, he noticed that the car was not going smoothly and found that the tyres of the car were swelled. When it was got checked up, he was advised to drive it at a slow speed to reach his destination. On reaching Chandigarh, he got the vehicle checked on 19.8.2009 from M/s Krishna Automobiles/appellant who found the defects in the tyres and the RIM on which Rs.85,488/- were estimated to be spent. Since the car had covered only 4058 KMs within five months period, it appeared to be a manufacturing defect and he requested the appellants to replace the same which they refused. He then lodged a claim with M/s Future General India Insurance Co. Ltd., the insurer but they declined to entertain the claim vide Annexure C-4 alleging that the loss was due to wear and tear and was not covered under the policy. He again requested M/s Krishna Automobiles and subsequently, served a notice on them but when no compensation was paid, he filed the present complaint.

3.                     M/s Krishna Automobiles, Appellant/OP No.3 filed the written reply, which was also adopted by M/s BMW India Pvt. Ltd., Appellant/OP No.1 alleging that there was no deficiency in service on their part as the damage to the tyres and alloy wheels was due to external impact while driving over an angular object, kerb, potholes or speed humps at a very high and excessive speed or at the wrong angle, stretching the carcass of the tyre and causing individual cords to break. According to them, such damage to the tyres are not covered under the warranty and therefore, the complainant was not entitled to the replacement of rim and tyre.

4.                     M/s Future General India Insurance Co. Ltd./OP No.3 contended that no cause of action has arisen against it and the claim lodged by the complainant did not fall under the purview of the terms and conditions of the certificate of insurance. According to them, the manufacturer of the vehicle noticed some bulges/cracks on two tyres of the vehicle and therefore, the dispute was between the complainant and OPs No.1 and 2 as the damage was due to wear and tear of the tyre of the vehicle regarding which no compensation is payable by them. They also prayed for dismissal of the complaint.

5.                     Both the parties were given opportunity to lead evidence in support of their contentions.

6.                     After hearing arguments of learned counsel for the parties and perusing the record, the learned District Forum dismissed the complaint against the Insurance Company i.e. OP No.3 but allowed it as against OPs No.1 and 2 by holding that there was a manufacturing defect in the tyres and the rim. Both the appellants were directed to replace the damaged parts of the car and to repair the car to the entire satisfaction of the complainant and also to pay him Rs.30,000/- as compensation and Rs.5,000/- as costs of litigation as mentioned in the opening para of the judgment. If the order was not complied with within 45 days of the date of receipt of its certified copy, the appellants were to refund the amount along with interest @18% per annum from the date of the complaint i.e. 14.12.2009 till its realization. Both the OPs No.1 and 2 have filed separate appeals against the impugned order.

7.                     Since both the appeals are against the same order, these are being disposed of through this single order.

8.                     We have heard the arguments of learned counsel for the parties and have perused the record.

9.                     The learned counsel for the appellants has argued that there is no evidence to prove that it was a manufacturing defect. They referred to the Wheel and Tyre Condition Report relating to the examination of the same showing that tyre bulge and wheel rim bent was due to external impact and therefore, it could not be said to be a manufacturing defect. No expert has been examined by the complainant to prove if it was due to manufacturing defect. The car had been purchased almost five months before the said incident and if there had been any manufacturing defect showing the bending of the wheel rim, it would have been noticed immediately after the car was purchased. The contention of OPs No.1 and 2 is that damage to the tyre and rim could be due to its driving over an angular object, kerb, potholes or speed humps at a very high and excessive speed or at the wrong angle, stretching the carcass of the tyre and causing individual cords to break. The report (Annexure C-2), therefore, clearly shows that it all occurred due to an accident.  The liability to replace the tyre and rim, therefore, cannot be fastened on the appellants.

10.                   The learned counsel for the respondent/complainant has argued that the rim has bent and the tyres have been damaged due to no fault of his and therefore, either it is a manufacturing defect for which the appellants are liable or the OP No.3 Insurer  should compensate him for the loss. As against it, the learned counsel for OP No.3/respondent argued that there is no allegation in the complaint if it is a case of accident and therefore, the damage to the wheels and rim, if any, is not payable by them. This contention also is not correct. It was mentioned by the complainant in Para No.3 that when he along with his family was coming back from Delhi in the night, he felt that the car was not running smoothly and was surprised to see that the tyres of the car were swelled. It is mentioned in Para No.5 that the wheels of the car were bulged and the alignment of the wheels was also upset. It shows that the tyres and the rim were damaged on that night and obviously, if there is no manufacturing defect, these got damaged in an accident. According to the complainant, he lodged a claim with OP No.3 as mentioned in Para No.8 of the complaint but OP No.3 declined to entertain the claim as mentioned in Para No.9. It appears, this reply of OP No.3 misguided the complainant to again approach OPs No.1 and 2 to pay the compensation regarding which legal notice was served and ultimately, the present complaint was filed. OP No.3 was also joined a party to this complaint and the request made in the last para of the complaint was that the opposite parties be directed to replace the parts i.e. tyres/alloy rims of the car and they be directed to pay Rs.50,000/- on account of mental agony, harassment, torture and inconvenience. OP No.3 had, therefore, not been exonerated by the complainant but the demand for compensation and replacement of the tyres/rims was made from it also.  The evidence (Annexure C-2), which is the report submitted by OP No.2 makes it clear that the tyre was bulging and the wheel rim was bent due to external impact. The complainant through Annexure C-3 informed OP No.3 that OP No.2 has denied to cover the damage under warranty saying that the damage to the tyres/alloy wheels was of accidental nature. There is, therefore, sufficient evidence to suggest that the damage was caused in an accident, which is covered by OP No.3 through the policy of insurance (Annexure C-1). It, therefore, cannot be said, if there is no evidence to prove the accidental damage or that the complainant never lodged or claimed relief from OP No.3.

11.                   The learned counsel for OP No.3 has argued that no claim was lodged with OP No.3 and therefore, they are not liable to pay any compensation. This fact is proved to be incorrect from the admissions made by OP No.3 in Preliminary Objection No.2 and Paras No.7 and 8 of their reply in which it was specifically admitted that the claim was lodged by the complainant with them, they scrutinized the same and declined to pay compensation alleging that the damage was due to wear and tear. This argument, therefore, cannot succeed.

12.                   The claim was denied by OP No.3 on the ground that the loss in the vehicle was due to wear and tear and therefore, was not covered under the terms of the Insurance Policy. It may again be mentioned for the sake of repetition that the car was purchased about five months back and it had covered a distance of 4058 KMs. The damage to the rim and to the tyres could not have occurred due to wear and tear in such a short span of time. Moreover, as is clear from the report (Annexure C-8) submitted by M/s Krishna Automobiles, the damage could not have been caused due to normal wear and tear. It was obviously as a result of accident and the OP No.3 was, therefore, bound to indemnify the loss to the complainant.

13.                   In view of the above discussion, both the appeals filed by the appellants are allowed. Instead of OPs No.1 and 2 (appellants), OP No.3 Insurer shall get the rim of the car repaired/replaced and shall also pay to the complainant Rs.40,800/- plus VAT, Service Tax and Cess with respect to the damaged tyres. OP No.3 shall also pay the litigation cost of Rs.5,000/- to the complainant.

13.                   Copies of this order be sent to the parties free of charge.

Pronounced.

21^st December 2010.

Sd/-

 [JAGROOP SINGH MAHAL]

PRESIDING MEMBER

Sd/-

 [NEENA SANDHU]

MEMBER

Ad/-

STATE COMMISSION

(APPEAL NO.250 OF 2010)

Argued by:   Sh. Aftab Singh Bakshi, Advocate for the appellant.

                        Sh. Hitesh Sood, Advocate for respondent No.1.

                        Sh. Rajesh Verma, Advocate for respondent No.2.

Dated the 21^st day of December 2010.

ORDER

                        Vide our detailed order of even date recorded separately, this appeal along with connected appeal bearing No.253 of 2010 have been allowed

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(APPEAL NO.253 OF 2010)

                                                                   Date of Institution: 16.07.2010

                                                                   Date of Decision:   21.12.2010

B.M.W India Pvt. Ltd., DLF Cyber City, Phase II, Buulding No.8, Tower B, 7^th Floor, Gurgaon 122 002, Haryana.

……Appellant.

Versus

Sh. Balkar Singh, Plot No.682, Industrial Area, Phase II, Chandigarh.

              ....Respondent.

BEFORE:            S.  JAGROOP  SINGH   MAHAL,  PRESIDING MEMBER.

                        MRS.  NEENA  SANDHU,  MEMBER.

Argued by:   Sh. Arvind Sud, Advocate for the appellant.

                        Sh. Hitesh Sood, Advocate for the respondent.

PER  JAGROOP  SINGH  MAHAL,  MEMBER.

1.                     For orders, see the orders passed in Appeal No.250 of 2010 titled  ‘M/s Krishna Automobiles Vs. Sh. Balkar Singh and another’ vide which this appeal has been allowed.

2.                     Copies of this order be sent to the parties free of charge.

Pronounced.

21^st December 2010.

Sd/-

 [JAGROOP SINGH MAHAL]

PRESIDING MEMBER

Sd/-

 [NEENA SANDHU]

MEMBER

Ad/-