Chandigarh

StateCommission

CC/14/2020

Pooja Bansal - Complainant(s)

Versus

The Managing Director, BMW India Pvt. Ltd. - Opp.Party(s)

Malkiat Singh, Raksha Raghav & Rajat Turka Adv.

14 Oct 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Complaint No.	:	14 of 2020
Date of Institution	:	08.01.2020
Date of Decision	:	14.10.2022

 

 

 

 

 

Ms. Pooja Bansal daughter of Late Shri D. K. Bansal, Advocate, resident of House No.789/1, Jattanwala, Manimajra, Chandigarh – 160101, India.

……Complainant.

Versus

1]      The Managing Director, BMW India Private Limited, Oberoi Centre, Building No.11, 2^nd Floor, DLF Cyber City, DLF Phase 2, Gurugram, Haryana – 122002.

 

2]      The Managing Director of BMW India Private Limited having its Head Office at Frankfurter Ring 35, 80807 Munchen, Germany.

 

3]      The Managing Director, Krishana Automobiles (Sales and Services), Plot No.125, Industrial Area, Phase I, Chandigarh.

 

4]      Incharge/Manager, GMR, GMR Ambala Chandigarh Expressway Pvt. Ltd., Toll Plaza at KM. 23.079 on NH 152 Village Dapper, Punjab.

 

5]      National Highway Authority of India (NHAI), G 5&6, Sector-10, Dwarka, New Delhi – 110075 (India) through its Chairman.

 

6]      Continental India Pvt. Ltd., Vatika Mindscapes, 11^th Floor, Tower-B, Near Sarai Metro Station, Sector 27-D, Faridabad, Haryana-121003 (India) through its Managing Director.

 

…..Opposite Parties.

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  MRS. PADMA PANDEY, MEMBER

                  MR. RAJESH K. ARYA, MEMBER

 

Present:

Ms. Raksha Raghav, Advocate for the complainant.

Sh. Shobit Phutela, Advocate for opposite parties No.1 & 2 (on VC).

Sh. Jagvir Sharma, Advocate for opposite party No.3.

Sh. Deepak Arora, Advocate for opposite party No.4 (debarred from filing reply vide order dated 27.08.2020).

Opposite party No.5 exparte vide order dated 08.02.2022.

Ms. Rupinder Kaur, Advocate proxy for Sh. Arjun Grover, Advocate for opposite party No.6.

 

PER  RAJESH  K. ARYA, MEMBER

Complaint:

                    The case of the complainant, namely, Ms. Pooja Bansal, is that on being satisfied with the promises and assurances of Sale Representative of opposite party No.3, she purchased new BMW car 320d `Gran Turismo Luxury Line from opposite party No.3 for total sale consideration of Rs.42,25,850/- on 16.08.2018 vide Bill, Annexure C-1. The said car was comprehensively insured from The New India Assurance Company Ltd. vide Policy No.35020031180300006919 dated 16.08.2018, Annexure C-2. A package of maintenance was provided by opposite party No.1 dated 16.08.2018, Annexure C-3 to minimize the problem and risk and to avoid any untoward incident in future. For the purchase of the said car, a finance of Rs.27,40,000/- at the rate of 9.55% was also taken by the complainant from BMW Financial Services, India vide Finance Agreement, Annexure  C-4,  which was to be repaid in 8 monthly installments and the balance amount was contributed by the complainant. After 2/3 months from the date of purchase of the said car, the complainant lodged a complaint with opposite party No.3 that the car was showing service due after 8627 KMs whereas the due service of the vehicle would be at 15000 KMs. It has been averred that the Incharge of Service Center informed that there was no manufacturing defect in the car and sometimes it happened and advised him regarding service of vehicle afresh, which was got done after making payment of Rs.22,293/- towards Wheel Balancing and Alignment and change of consumable items etc. on 29.12.2018 vide invoice, Annexure C-5. It is the allegation of the complainant that on 29.12.2018, when the brother of the complainant alongwith his family was going to Ambala in the said car on Chandigarh Ambala Express Highway at normal speed of 80 to 90 KM per hour and when the car reached in the area of Drive-22 and flyover constructed by the National Highway Authority of India on the said Express Highway, then  all of a sudden, they heard big noise just like collapse of two vehicles and the car was imbalanced and suddenly, both occupants of the car became unconscious for the time being. They noticed that the front of the vehicle was badly damaged and the tyre on the right side had burst and its rim was broken, further resulting into opening of safety balloons and breaking of front screen of the car. It has been averred that the impact was so high; the surrounding vehicles stopped to see the incident and everybody was surprised how this had occurred; the speed of the vehicle was moderate and by the grace of God, the life of both occupants of the car were saved.

2]                It has further been averred that after passage of 30-34 minutes of the incident, they come out of shock; the complainant gave intimation of the incident to opposite parties No.1 to 3 vide email dated 29.12.2018, Annexure C-6, and the car was towed to the opposite party No.3 after 2-3 hours. The complainant received unsatisfactory reply from opposite parties No.1 and 2 vide email dated 02.01.2019, Annexure C-7 and she also put her grievance before the Head Office of opposite parties No.1 & 2 but no reply was received. When the complainant wanted to know the reason behind the collapsed of the vehicle, opposite parties No.1 to 3 tried to shift the responsibility and blamed each other and also told that they had sent an email to the manufacturer of the tyre company i.e. opposite party No.6. Even when the authorized person of opposite party No.3 alongwith the complainant inspected the road condition, there was no such pit on the road. The complainant alleges manufacturing defect in the vehicle, resulting its collapse on road and further the services of opposite party No.3 was not up to the mark who simply grabbed the money and harassed the complainant. It has further been stated that even no reply to the legal notice dated 24.07.2019, Annexure C-8, was received from the opposite parties.

3]                Alleging manufacturing defect in the car, deficiency in rendering service and unfair trade practice on the part of the opposite parties, the complainant has claimed refund of Rs.40 Lakhs being the diminishing value of the car alongwith interest @18% p.a. from the date of damage; compensation of Rs.5 Lakhs on account of life risk, financial risk, hardship; further Rs.5 Lakhs towards mental agony, harassment, emotional and diminishing of social life and disturbance caused to the complainant on account of aforesaid deficiency in services unfair and illegal trade practices & Rs.55,000/- as litigation costs besides claiming compensation u/s 14(HB) of Consumer Protection Act, 1986.

Defence of opposite parties No.1 & 2 (BMW India Pvt. Ltd.).

4]                Opposite parties No.1 & 2, besides taking certain preliminary objections to the effect that Court cannot re-write terms of the contract; that there are concealment and contradictory statements of complainant; that there is no privity of contract between the complainant and opposite parties No.1 & 2; that no cause of action arises against opposite parties No.1 & 2 and that the complainant has inflated the claim to invoke jurisdiction of this Commission; has pleaded on merits that the complainant, in no manner, is affected or aggrieved by the product and services provided by opposite parties, in fact, when the car met with an accident, the repair work was done under the terms and conditions of insurance policy of the complainant after which, the car was delivered to the complainant on 02.02.2019. It has further been stated that the cars of BMW make are sold by opposite party No.1 to its authorized dealers on principle-to-principal basis and the concerned authorized dealer sells the car to the end-customers. It has further been stated that the complainant had made statements which have no factual basis and also not witnesses by her. It has been denied that the sale representative of opposite party No.3 was interacting with the complainant on behalf of opposite parties No.1 & 2. It has further been stated that  BMW cars are provided with Condition Based Services (CBS) interval of which unusually becomes due in maximum of 1 year or 12,000 KMs (whichever is earlier), however, the service intervals are subject to change based on operating conditions and the same are indicated on the automated monitors installed in BMW cars.

5]                It has further been stated that engine oil service due at 8,627 KMs cannot in any manner be termed as a manufacturing related issue in the vehicle. It has further been stated that the complainant has made contradictory version of events which create ample doubts on the veracity and make the complaint only a false version. It has further been stated that the tyre burst was on account of the fact that the vehicle had hit a big pothole (as stated in insurance claim documents). It has further been stated that email dated 29.12.2018 of the complainant was replied by opposite parties No.1 & 2 vide emails dated 31.12.2018, 03.01.2019 and 15.01.2019, which the complainant has not placed on record. It has further been stated that the complainant has tried to pass of the accidental damage on account of hitting a big pothole as ‘collapse of the vehicle’. It has further been stated that the vehicle after hitting the pothole has suffered tyre burst, alloy rim/wheel damage as well as underbody damage. It has further been stated that the picture of the damaged alloy wheel/rim (Annexure OP-/5) showed that there was accidental and external impact. It has further been stated that deployment of air bags system only occurs in the event of external impact on the vehicle of certain severity. It has further been stated that the said damage was so immense that it led the safety air bags of the car to open and also led to damage to the alloy rims.

6]                It has further been stated that the complainant having already mentioned in the insurance claim form that the damage to the tyre was caused because it hit a big pothole, cannot now deny the said fact and narrate a version to shift liability on opposite parties. It has further been stated that the complainant was provided responses and explanations as apparent from Annexure OP-1/4. It has further been stated that the tyre manufacturer after examining the damage to tyre gave a separate report and thus, the complainant is portraying an accidental case as a loophole, which is neither supported by documents nor proved the veracity of such allegations as the complaint is full of concocted and self-contradictory facts. It has further been stated that legal notice dated 24.07.2019 was duly replied vide reply dated 29.08.2019, Annexure OP-1/6. Pleading no deficiency in rendering service and unfair trade practice on their part, opposite parties No.1 & 2 prayed for dismissal of the complaint being false and vexatious with costs.

Defence of opposite party No.3 (Krishna Automobiles – Sales and Services).

7]                It is the stand of opposite party No.3 that as the service requirement of the car is shown automatically on the dashboard, as per usages of the car, the required service was to be undertaken and the brother of the complainant got that service done. It has further been stated that since the complainant submitted her driving license being the driver of the car, in the Claim Form, Annexure R-1, therefore, her statement to the effect that her brother was driving the car at the time of incident is not correct. She has given a completely new stand in her complaint. It has further been stated that the complainant has mentioned that there was no bump in the particular road where the incident took place but in the Claim Form, she has mentioned that suddenly vehicle hit into big pothole and their car got damaged from right side front and under body. It has further been stated that the car in question had met with third accident and had been handed over to opposite party No.3 on account of accident at the odometer reading of 27,667 KMs on 8.08.2020. It has further been stated that the said accident was on account of rash and negligent driving by a young man as mentioned in the complaint and on the other hand, the complainant has mentioned herself as the driver of the car at the time of the accident. It has further been stated that there was no question of blaming each other and it was on the request of the complainant about the condition of the tyre, the manufacturer of the tyre was informed. It has further been stated that as per reply, Annexure R-2 of the tyre manufacturer, the tyre sustained an accident impact to its side wall which damaged the tyre and resulted cut in a localized area of damage to its main structure and the complainant was accordingly informed. Pleading no deficiency in rendering service and unfair trade practice on its part, opposite party No.3 prayed for dismissal of the complaint being meritless.

Defence of opposite party No.6 (Continental India Pvt. Ltd.).

8]                Apart from taking certain preliminary objections with regard to the complainant being not a consumer and the controversy involved not being a consumer dispute; that the complainant having no locus standi to initiate the present proceedings; that complaint hopelessly barred by limitation and that the complainant has escalated the claim amount purposely to bring the claim before this Commission, pleaded, on merits, that the complaint is false, vexatious, concocted, afterthought and does not relate to opposite party No.6. It has further been stated that there is no documentary evidence or proof to support the story concocted by the complainant. It has further been stated that the onus of establishing its claim lies upon the person who initiates the legal remedy, which in the present case is the complainant but she has not adduced any supportive documents or evidence for corroboration of his submissions. It has further been stated that the warranty policy of opposite party No.6 can be availed only for manufacturing defect, which is not there in the present case and the complainant has never approached opposite party No.6 for resolving his grievance. It has further been stated that since the complainant under the Retail Finance Agreement dated 16.08.2018 entered between BMW India Financial Services Pvt. Ltd. and complainant has agreed for New Delhi as appropriate place of jurisdiction and Arbitration Clause therein, hence, the complaint deserves dismissal on this ground too. It has further been stated that  as per the warranty claim policy of opposite party No.6, claim of tyre is addressed only in case the tyre has any manufacturing defect/process defect after going through inspection as per Inspection Report of the Technical Expert of opposite party No.6 but the complainant neither approached opposite party No.6 for a thorough technical inspection nor she has adduced any technical expert’s report in this matter. It has further been stated that opposite party No.6 is a part and parcel of internationally recognized tyre manufacturing company and the tyres are tested and checked before release for sale and international & national standards are followed during the manufacturing of the tyre. Pleading no manufacturing defect and deficiency on its part, opposite party No.6 prayed for dismissal of the complaint with cost.

9]                It may be stated here that Opposite party No.4  (GMR Ambala Chandigarh Expressway Pvt. Ltd.) was debarred from filing reply vide order dated 27.08.2020 and Opposite party No.5 was proceeded exparte vide order dated 08.02.2022.

10]              We have heard the Ld. Counsel for the parties and have gone through the pleadings of the parties, documentary evidence on record and the written arguments very carefully.

11]              It is the case of the complainant that due to manufacturing defect in the vehicle and improper proper service therefore, front of the vehicle was badly damaged and the tyre on the right side had burst and its rim was broken, further resulting into opening of safety balloons and breaking of front screen of the car 29.12.2018, whereas on the other hand, it is the specific case of opposite parties No.1 & 2 that the tyre burst was on account of the fact that the vehicle had hit a big pothole as stated by the complainant herself in insurance claim documents. It is also their case that the vehicle after hitting the pothole suffered tyre burst, alloy rim/wheel damage as well as underbody damage, which was accidental and external impact and further led to opening of the safety air bags of the car. It is also their case that the complainant concealed this fact in her complaint, which is false and vexatious.

12]              After hearing the Ld. Counsel for the parties and going through the pleadings of the parties; documentary evidence on record and the written arguments, we are of the considered view that the complaint is liable to be dismissed straightaway on the ground of concealment of material facts on the part of the complainant and for the reasons to be recorded hereinafter:-

13]              Bare perusal of Claim Intimation Letter dated 22.01.2019, Annexure OP-1/1, placed on record by opposite parties No.1 & 2 clearly transpires that the complainant, Ms. Pooja Bansal, filled this document in her own hand wherein the date and time of accident was mentioned as 29/12/18 at 6:50 PM and the estimated loss was mentioned as Rs.15,16,000/-. The name of driver, who was driving at the time of accident is mentioned as ‘Pooja Bansal’, meaning thereby that the complainant herself was driving the car at the time of accident, whereas, in the complaint, she has stated that her brother was driving the said vehicle. Not only above, in the next document, which is Motor Vehicle Claim Form, dated 22.01.2019, against the Question: “Brief particulars of the accident”, the complainant mentioned as under:-

“Suddenly vehicle hit into Big Pot Whole and our car damage from right side, front and under body.”

14]              During the course of arguments, when a query was put to the Ld. Counsel for the complainant with regard to above statement made in the Motor Vehicle Claim Form, she could not deny the same and rather argued that it was done as advised by opposite parties No.1 & 2. We are not convinced with such an argument made by the Ld. Counsel for the complainant. It is a case of clear cut concealment of facts on the part of the complainant. In the Motor Vehicle Claim Form, the complainant clearly mentioned the reason behind the damage occurred to the vehicle, which as per her own version, was the vehicle hitting into a Big Pot Hole. In the complaint filed before this Commission, the complainant has concealed this fact, which goes to the grass root level of the controversy involved. By concealing this material fact, the complainant has approached this Commission with unclean hands. The factum of vehicle hitting a pothole further stands corroborated from email dated 09.01.2019 sent by BMW India Pvt. Ltd. to the complainant, Annexure OP-1/4, wherein it was clearly informed to the complainant that as per the feedback of the Technical Team of BMW India, the damages have been caused due to external factors and the damages caused due to the said reasons cannot be considered as flaw in quality of product or manufacturing defect. Even from bare perusal of photographs, Annexure OP-1/5, it is clearly made out that the damage to the tyre, which had been cut in an arc manner and the rim/allow also broke, was due to high accidental impact, which as per her own admission in the Motor Vehicle Claim Form was the result of the vehicle hitting into Big Pot Whole. Thus, the complainant has concocted a false story, which was an afterthought, in order to fetch undue benefit out of it.

15]              Not only above, even the manufacturer of the tyre i.e. Opposite party No.6 vide its Tyre Complaint Report dated 06.01.2019, Annexure OP-1/2, has also ruled out any manufacturing defect in the tyre and has recorded the following remarks:-

“Remarks

For Front Right Tire(s):

The tire(s) has sustained an accidental impact to its sidewall which has damaged the tire(s) and resulted cut in a localized area of damage to its main structure.

Whilst our product is designed to resist most known road hazard, accidental damage of this nature is unfortunately sometimes unavoidable.

In view of the conclusions of our examination and the fact that no manufacturing defect was present, we are unable to offer any form of compensation on the tire(s) in this instance.”

16]              The Hon’ble Supreme Court of India in case Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines & another,  Appeal (Civil) No.8701 of 1997 decided on 02.11.1999, while stating the true interpretation of deficiency of service, observed as under:-

“6.     The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortuous acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. In case of bonafide disputes no wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed. If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bonafide, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service.”

The complainant has miserably failed to make out any case of deficiency in rendering service on the part of the opposite parties, as required of the above observations of Hon’ble Apex Court.

17]              Once it is established from the record that the damage to the car occurred due to hitting into a big pothole as per the own statement of the complainant given in Motor Vehicle Claim Form, therefore, the false allegation as regards manufacturing defect in the car or the tyre, itself goes being based on concealment of true material facts from the Commission. Also, under given circumstances of the case and factual position on record and specially in view of concealment of material facts on the part of the complainant as regards the cause of accident, which was hitting the vehicle into a big pothole, there is no requirement of any expert report/opinion or any other evidence in this case, when Motor Vehicle Claim Form, dated 22.01.2019 speaks of truth itself.

18]              It may also be pertinent to mention here that vide order dated 27.04.2022, when the factum of complainant submitting claim with the New India Assurance Co. Limited, vide Annexures R-1 & R-2, to the knowledge of this Commission, we directed the Ld. Proxy Counsel for the

 

complainant appearing on the said date to place on record the relevant information & documents showing the quantum of claim received from the said New Inia Assurance Co. Ltd. However, it was only on 24.08.2022, that the Ld. Counsel for the complainant placed on record Tax Invoice dated 27.02.2019 issued by The New India Assurance Co. Ltd., SCO No.36-37, Sector 17A, Chandigarh. During the course of arguments, Ld. Counsel for the complainant admitted receipt of the claim from The New India Assurance Co. Ltd., which fact has been concealed in the complaint.

 

19]              Thus, it is not a case of manufacturing defect or deficiency in service or unfair trade practice on the part of the opposite parties but a case projecting pure concealment of material facts from this Commission. Therefore, we are not going into other objections raised by the opposite parties, when the complaint itself proved to be frivolous and vexatious. To put an end to the tendency of filing frivolous and vexatious litigation, Section 26 was inserted in the Consumer Protection Act, 1986 which provides for a maximum penalty of Rs.10,000/- on complainants if their complaints are baseless. However, taking a lenient view, we are not imposing any cost on to the complainant in the instant case.

 

20]              In this view of the matter, the complaint is baseless and flagrant abuse of the process of law to harass the opposite parties. Complainant is taking disadvantage of provisions of the Consumer Protection Act, 1986. There is an increasing tendency on the part of litigants to indulge in speculative and vexatious litigation and adventurism. We think such a tendency should be curbed. As such, the complaint is liable to be dismissed under Section 26 of the Consumer Protection Act, 1986 being frivolous and vexatious.

 

21]              For the reasons recorded above, the complaint is dismissed being false and vexatious with no orders as to costs. All pending miscellaneous applications in this case also stands disposed of having become infructuous. 

 

22]              Certified copies of the order be sent to the parties free of charge.

Pronounced.

14.10.2022.                 

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

(PADMA PANDEY)

        MEMBER

 

 

 

(RAJESH K. ARYA)

MEMBER

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