Karnataka

Kolar

CC/30/2019

Rohan Kumar.K - Complainant(s)

Versus

The Manager,Nissan Motor India Pvt Ltd - Opp.Party(s)

Sri.Nataraja.K

22 Oct 2019

ORDER

Date of Filing: 23.04.2019

Date of Disposal: 22.10.2019

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 22^nd DAY OF OCTOBER 2019

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., PRESIDENT

SMT. A.C. LALITHA, BAL, LLB.,  ……  LADY MEMBER

 

CONSUMER COMPLAINT NO. 30 OF 2019

Rohan Kumar.K,

S/o. Kempanna,

Aged About 31 Years,

R/at: Teachers Colony,

Behind St. Anne’s Public

School, Mulbagal Town.                                   ….  COMPLAINANT.

(Rep. by Sri. K. Nataraja, Advocate)

 

- V/s –

1) The Manager,

Nissan Motor India Pvt Limited,

5^th Floor Orchid Business Park,

Sohna Road, Sector-48,

Gurgaon-1220014,

Haryana, India.

(Rep. by Sri.V.K. Prashanth, Advocate)

 

2) Lakshmi Car Zone Pvt Limited,

Surya Nisan, Sy. No.9/1,

Dodda Nakkundi Village,

K.R. Puram Hobli,

Marathalli Outer Ring Road,

Bangalore-37.

(Exparte)

 

3) The Manager,

Manufacturing Plant,

Renault Nissan Automotive India Pvt. Ltd.,

Plot No.1, SIPCOT Industrial park,

Oragadam, Mathur,

Sriprambudur Post,

Kancheepuram District-602105,

Tamil Nadu.

(Rep. by Sri. V.K. Prashanth, Advocate)

4) Future General India Insurance Company

Limited, 1^st Floor, D.N.7-1-21-AA-PDL

Estate Opp Country Club,

Hyderbad, Telangana-500016.

(Rep. by Sri.B. Kumar, Advocate)                                 …. OPPOSITE PARTIES.

:: ORDER ::

BY SRI. K.N. LAKSHMINARAYANA, PRESIDENT

01.   The complainant has filed this Consumer Complaint against the OPs and prays to direct the OPs to deliver the new vehicle to the complainant and to pay compensation of Rs.5,00,000/- and prays to allow the complaint.

02.   The brief facts of the complainant case is that, he is the owner of the Datsun Redi-Go T(O) bearing Registration No. KA-07-N-0226 and he purchased the said vehicle from OP No.2 on 30.06.2018 for Rs.3,41,800/-.     The said vehicle was delivered on 30.09.2018 and insured the said car with OP No.4.  In the first week of March-2019 while the complainant was driving the said vehicle, all of a sudden the said vehicle was stopped due to seizure of engine due to leakage of oil.  The complainant took the said vehicle to OP No.2 by towing the same and OP No.2 not repaired the said vehicle on one or the other pretext.  The complainant sent message through e-mail to Datsun customer care on 15.03.2019 and intimated about the said fact and requested to repair the said vehicle by recovering the amount through Insurance as the policy was in force.  The said authorities replied the said message that the entire responsibility is on the insured risk.  The complainant has also approached the OP No.3 to repair the said vehicle, but it went in vain.  The said vehicle is in the custody of OP No.2 since from 45 days and all the efforts made by the complainant are went in vain.  Due to the acts of the OPs the complainant suffered physical and mental pain and he lost Rs.5,00,000/- towards his business loss for which he has purchased the said vehicle and due to the seizure of the engine of the vehicle he was unable to do his business properly and made loss of his business.  The complainant don’t want the said vehicle and OPs are held responsible to deliver a new vehicle to him as the said vehicle’s engine was seized within the warranty period and policy period.  The complainant approached the OPs on several times to settle the matter, but it went in vain.  On 21.03.2019 the complainant issued legal notice to the OPs through RPAD and the same was served to OP Nos.2 to 4 and they did not come forward to settle the matter.  The complainant approached this Forum and produced documents to support his case and prays to allow the complaint.

03.   The complainant has produced following 10 documents along with the complaint:-

(i) Xerox copy of the RC – Document No.1

(ii) Xerox copy of the new vehicle delivery check list –Document No.2

(iii) Xerox copy of Tax invoice – Document No.3

(iv) Xerox copy of delivery challan /gate pass – Document No.4

(v) Xerox copy of the Temporary certificate of registration – Document No.5

(vi) Xerox copy of the delivery guidelines and features explanation – Document No.6

(vii) Xerox copy of Insurance policy – Document No.7

(viii) Xerox copy of mails – Document No.8

(ix) Xerox copy of legal notice – Document No.9

(x) Xerox copy of postal receipts and acknowledgment – Document No.10

 

04.   OP Nos.1, 3 and OP No.4 appeared through their counsel separately.  OP No.2 did not appear before the Forum in spite of service of notice and placed exparte.

05.   OP No.1 filed version that he is the authorized representative of OP Nos.1 & 3 and denied the contention made by the complainant as unsustainable and baseless.  The complainant has not made out any case against them.  The said complaint is false, malicious, incorrect and filed this complaint to avail undue advantage.  The complainant has made baseless allegations.  The said OPs are not related to the complaint and unnecessarily dragged as parties to the complaint.  The questions involved are between the complainant and OP Nos.2 & 4.  OP Nos.1 & 3 are engaged in the business of manufacturing of motor vehicles.  OP No.2 is the authorized dealer of OP Nos.1 & 3.  The said OP contended that, the complainant purchased the Datsun Redi-Go T(O) vehicle on 30.06.2018 vide registration No. KA-07-N-0226 and when the complainant was driving the said vehicle, all of a sudden the vehicle was stopped due to seizure of engine and thereafter the complainant found that, due to oil leakage the engine was seized, thereafter the vehicle was taken to service center of OP No.2 by towing the vehicle, but OP No.2 has not repaired the vehicle and mis-guided the complainant on one pretext or the other, that the complainant wants the vehicle to be replaced as the engine was seized and it is within the warranty and policy period, said that, the complainant sent the message through mail to Datsun customer care on 15.03.2019 and intimated the said fact and requested to repair the said vehicle by recovering amount through insurance, that the vehicle has been given in the custody of OP No.2 for 45 days, the repair has not been undertaken by OP No.2 and thereafter the complainant approached OP No.3 who refused to do the needful.  The said OP contended that, the vehicle history report does not reflect any manufacturing defect during the service of the vehicle and the defect is due to complainant’s default.  The plain reading of the allegations it is clear that, there is no allegation leveled against OP Nos.1 & 3 and all the allegations are made against OP No.2 and the complaint is not maintainable against OP Nos.1 & 3.  The complainant is not a Consumer of OP Nos.1 & 3 and prays to dismiss the complaint against them.

06.   OP Nos.1 & 3 has produced following 02 documents:-

(i) Copy of the Dealership Agreement between Nissan Motors India Private Limited and Lakshmi Car Zone Private Limited –Annexure-1.

(ii) Copy of the Vehicle History maintained by the Team of OP Nos.1 & 3 – Annexure-2

07.   OP No.4 has filed version and contended that, the allegations made in the complaint are false and the complaint is not maintainable either in law or on facts.  The complainant is the owner of the vehicle bearing registration No. KA-07-N-0226 and purchased the same from OP No.2 on 30.06.2018 for Rs.3,41,800/-, that the said vehicle was insured with this OP.  During first week of March-2019 while the complainant was driving the said vehicle all of a sudden the vehicle stopped due to seizure of the engine and the vehicle was taken to OP No.2 by towing and OP No.2 did not repair the vehicle and till date the vehicle is lying idle and OP No.2 is misguiding the complainant that, later on the complainant informed the Customer Care on 15.03.2019 through mail to Datsun Redi-Go are all denied as false.  This OP has specifically contended that, the complainant is making misrepresentation before the forum and playing fraud.  The complainant has furnished the claim form and the complainant has mentioned that, “on the way to Bangalore a stone fell from the moving loaded tractor, on which his car ran and he felt the hit, soon in few minutes the vehicle stopped and he toed the vehicle”, this was the description furnished by the complainant and subsequently he changed the version in the complaint.  The complainant has suppressed the same while filing the complaint and the complainant has no way pleaded about stone falling from the tractor.  The complainant has not produced the claim form. 

7(a). The OP No.4 submitted that IRDA licensed approved surveyor being appointed so as to assess the loss, as well on the physical inspection of the vehicle and observed that, “After the accidental impact on the oil sump, due to insufficient oil supply has led to an extension damage to the internal parts of the engine and once there is no sufficient oil in the oil sump, the above mentioned nature of damage to the bearing and the engine, clearly shows that, the vehicle is being driven without sufficient lubrication and this has led to the extension damage to the internal parts of the engine and other related parts after the accident.”  The explanation offered by the complainant about the seizure of engine or Datsun Car which is purely caused on account of lapses on the part of the complainant and as such the complaint is not maintainable and the same is liable to be dismissed in limine.  This OP No.4 has further contended that, immediately after receipt of the Claim Form one Mr. M.G. Vijay, Surveyor and Loss Assessor, has been appointed.  The said surveyor is of the opinion that, after the accidental impact on the oil sump, due to insufficient oil supply led to an extensive damage to the internal parts of the engine and he is of the opinion that, the vehicle was being driven without sufficient lubrication and this has led to extensive damage to the internal parts of the engine and other related parts after the accident.  OP No.4 has also narrated about own risk of the insured.  This OP has repudiated the claim on 19.03.2019 based on the report of the investigator and the information gathered and that the engine damage is not considered in the assessment as there is no direct external impact to the engine outside.  Following the incident the oil sump was damaged, resulting in leakage of oil.  But the vehicle was continued to be driven without engine oil, resulting in seizure of the engine.  The vehicle service manual supplied by the manufacturer narrates that, if the engine is not stopped immediately after the engine oil pressure warning lights is illuminated, severe damage could result.  The complainant has not come to the Forum with clean hands and there is no deficiency of service on the part of OP No.4 and prays to dismiss the complaint.

08.   OP No.4 has produced 09 documents along with version:-

(i) True copy of policy with terms and conditions

(ii) Call center claim intimation letter

(iii) Claim form submitted by complainant

(iv) KYC documents of complainant

(v) Letter sent to complainant dated: 19.03.2019 with postal receipt

(vi) Letter sent to complainant dated: 04.04.2019 with postal receipt

(vii) Repudiation letter dated: 23.04.2019 with postal receipt

(viii) Surveyor Report

(ix) Reply to legal notice.

 

09.   The complainant has filed affidavit evidence by way of examination-in-chief with list and 10 documents as follows:-

(i) Notarized copy of RC – Annexure-1

(ii) True copy of new vehicle deliver check list – Annexure-2

(iii) True copy of Tax Invoice – Annexure-3

(iv) True copy of delivery challan – Annexure-4

(v) Original delivery guidelines and features explanation – Annexure-5

(vi) Copy of insurance policy – Annexure-6

(vii) Copy of mails pages 1 to 6 – Annexure-7

(viii) Office copy of legal notice – Annexure-8

(ix) Postal receipts – 4 in Nos – Annexure-9 to 12

(x) Postal acknowledgment – 3 in Nos. Annexure-13 to 15.

 

10.   On 13.09.2019 the counsel for OP No.1 & 3 has filed affidavit evidence of one Mr. Shoban Babu, the authorized representative of OP Nos.1 & 3 by way examination-in-chief.  On 25.09.2019 the counsel for OP No.4 has filed affidavit evidence of one Sanjana Rao, Senior Executive on behalf of OP No.4 by way of examination-in-chief and so also produced Exhibit-R.1 to Exhibit-R.3.

11.   On 25.09.2019 counsel for complainant has filed a memo with 03 documents pertaining to repair estimation and submitted written argument.  On 13.09.2019 the counsel for OP Nos.1 & 3 has submitted written arguments of OP Nos.1 & 3. 

12.   Heard arguments of complainant and OP Nos.1 & 3 and OP No.4.

13.   Now the points that do arise for our consideration are that:-

1. Whether the complainant has proved deficiency of service on the part of the OPs and is entitled for the relief as prayed by him?

 

2. What order?

 

14.   Our findings on the above stated points are:-

POINT 1:-                Is in the Negative

       

POINT 2:-                As per the final order

for the following:-

REASONS

15.   POINT 1:-

        We have perused the complaint, version, affidavit evidence of both parties and the written arguments.  It is an admitted fact that, the complainant is the registered owner of the Datsun Redi-GO T(O) bearing registration No. KA-07 N-0226 and he purchased the said vehicle from OP No.2 who is none other than the authorized dealer of OP Nos.1 & 3.  The complainant has insured the said vehicle with OP No.4.  The complainant has produced Xerox copy of the RC as Document No.1, Xerox copy of the new vehicle delivery check list as Document No.2, Xerox copy of the Tax Invoice as Document No.3, Xerox copy of the delivery challan as Document No.4, Xerox copy of the Temporary Certificate of registration as Document No.5, Xerox copy of the delivery guidelines as Document No.6, Xerox copy of the Insurance policy as Document No.7, and Xerox copy of the legal notice as Document No.9.  On perusal of document No.7 i.e., policy of insurance the same is with effect from 10.07.2018 to 09.07.2019. 

16.   The complainant has stated that, in the first week of March-2019 while he was driving the said car, all of a sudden the vehicle was stopped due to seizure of engine and thereafter the complainant has taken the said vehicle to OP No.2 by towing the same and OP No.2 has not repaired the car on one or the other reasons.  The complainant has also sent message through e-mail to Datsun customer care on 15.03.2019 and intimated the facts and requested to repair the vehicle by recovering the amount from OP No.4 as policy was in force and the said authorities replied that, it is entirely at the instance of owner’s risk.  The complainant has also approached OP No.3, but in vain.  The complainant has also contacted the OPs on several times to settle the matter but in vain.  On the other hand OP No.1 has specifically contended that, OP Nos.1 & 3 are the manufacturers of motor vehicles and as per the history of vehicle i.e., Annexure-2 it does not reflect any manufacturing defect during the service of the vehicle and the defect is due to complainant’s default.  The above said material fact and Annexure-2 clearly reveals that, there is no any manufacturing defect in the alleged vehicle and the defect was caused only due to default of the complainant and hence there is no case is made out as against OP Nos.1 & 3.  These OP Nos.1 & 3 are only a formal parties.

17.   The OP No.4 has also specifically contended that, the complainant is making misrepresentation and played fraud and to that effect OP No.4 has produced claim form as document No.3.  On perusal of the said document No.3 wherein the complainant has stated that, “on the way to Bangalore, a stone fallen from the moving loaded tractor, on which his car ran and he felt the hit, soon within a few minutes the vehicle stopped and he tow the vehicle”.  But in the complaint, the complainant has stated that, “in the first week of March-2019 while the complainant was driving the said vehicle, all of a sudden the vehicle was stopped due to seizure of the engine and he found that, due to oil leakage the engine was sized”.  The above said material fact reveals about suppression of real material facts by the complainant to gain unlawfully.  The complainant has not at all stated the real facts in his complaint and he has not come to the Forum with clean hands.  The complainant has filed this complaint with an intention to gain unlawfully from OP Nos.2 & 4.  The above said alleged mishap is only due to the negligent act of the complainant himself.  The complainant saw the fallen of stone from loaded moving tractor and he should have been stopped the car to avoid any damage, but the complainant has ran the car on a fallen stone which leads to damage and leakage of oil and seizure of the engine, which is due to negligent act of the complainant himself.  Hence OP Nos.2 & 4 are not liable to pay any compensation as the said alleged mishap was happened due to the negligent act of the complainant himself, hence there is no deficiency of service on the part of OP Nos.2 & 4.  The alleged defect was only due to the negligent act of the complainant himself.  On perusal of the above said material facts, it clearly goes to show that, the complainant has not come to the Forum with clean hands and he is not entitled for any relief as prayed by him.   The warranty is not applicable in view of the alleged mishap caused only due to the negligent act of the complainant himself and it leads to leakage of oil and seizure of the engine and deficiency would not arise owing to the conduct of the complainant.

18.   OP No.4 has also produced the report of the Surveyor and loss assessor as document No.8, wherein the surveyor has given his report that, “after the accidental impact on the oil sump, due to insufficient oil supply has led to an extensive damage to the internal parts of the engine and the vehicle is being driven without sufficient lubrication and has led to the extensive damage to the internal parts of the engine and other related parts after the accident”.  On perusal of the said report of the Surveyor it clearly reveals that, the complainant has driven the alleged vehicle without oil in the engine and the engine was seized and it is only due to the negligent act on the part of the complainant himself.  The complainant has not taken any precautions and ran over the fallen stone and it leads to seizure of the engine and the complainant is responsible for the same.  Hence as discussed above, there is no deficiency of service against OPs as alleged by the complainant and the OPs are not liable to pay any compensation to the complainant. 

19.   Further the complainant has stated that, he has purchased the said vehicle for his business and due to the alleged mishap he has lost Rs.5,00,000/-.  The said fact clearly reveals that, the complainant has purchased the alleged vehicle for business purpose, but he has not purchased the said vehicle for self-employment for earning his livelihood.  Hence the complaint filed by the complainant is also not maintainable as the complainant is not a Consumer as contemplated Under Section 2(1)(d) of the Consumer Protection Act, 1986.  Under these circumstances as discussed above, we answer Point No.1 is in the Negative.

POINT 2:-

20.   In view of our finding on Point No.1 and the discussions made thereon, we proceed to pass the following:-

 

ORDER

01.   The complaint filed by the complainant is hereby dismissed.  No order as to costs.

02.   Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 22^nd DAY OF OCTOBER 2019)

 

 

 

 

   LADY MEMBER                            PRESIDENT