DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Consumer Complaint Case No: 459 of 2011] -------------------------------- Date of Institution: 29.09.2011 Date of Decision : 23.11.2012 -------------------------------- Dr. Harpreet Kaur wife of S. Preetinder Singh, aged about 38 years, R/o H.No. 461, Sector 44-A, Chandigarh. ---Complainant V E R S U S 1] Toyota Kirloskar Motor Private Limited, No. 24, 10th Floor, Canberra Block, Vital Mallya Road, Bangalore (Karnataka) through its M.D. 2] Managing Director, Toyota Kirloskar Motor Private Limited, No. 24, 10th Floor, Canberra Block, Vital Mallya Road, Bangalore (Karnataka). 3] Globe Toyota, Globe Automobiles Pvt. Ltd., B-51, Industrial Area, Phase-VI, Mohali (Punjab), through its M.D. ---Opposite Parties BEFORE: Mrs.Madhu Mutneja PRESIDING MEMBER SH. JASWINDER SINGH SIDHU MEMBER Argued By: Ms. Palvinder Singh Sarna, Counsel for Complainant. Sh. S.R. Bansal, Counsel for Opposite Parties No.1 & 2. Sh. Dinesh Tewari, Counsel for Opposite Party No.3. PER JASWINDER SINGH SIDHU, MEMBER 1. The Complainant has preferred the present complaint, against the Opposite Parties on the ground that allured by the assurance given by the Opposite Parties that their car was theft proof as there is a theft prevention system in the car (Annexure C-1), the Complainant purchased a Toyota Innova 2.5, in Sept.2007, for about Rs.10.5 lacs from Pioneer Toyota, 177, H&I, Industrial Area, Phase-I, Chandigarh. However, to her utter dismay, the aforesaid car was stolen from outside of her house during the intervening night of 29/30.9.2009. As such, an F.I.R. was lodged with P.S. Sector 34, Chandigarh (Annexure C-2). When the car was stolen, number of articles belonging to the Complainant/ her family members, duly detailed in the copy of the F.I.R. and were lying in the said car. The Complainant claims that prior to the theft of her aforesaid car, the same was sent to Opposite Party No.3 for accidental repairs, which was returned by Opposite Party No.3 only on 7.9.2009. The Complainant also claims that the anti-theft system of the car must have been tampered by the employees of Opposite Party No.3 in order to steal the same subsequently. As such, she wrote her concern to the Opposite Parties No.1 and 2, but in turn received a vague & irrelevant reply to the effect that the said car although was safety proof until and unless the original keys are not inserted in the ignition but the said vehicle could be towed away without starting the ignition. Eventually, a legal notice dated 22.9.2011 (Annexure C-8) was served upon the Opposite Parties, to which no response has been received. Hence, this complaint. The complaint of the Complainant is duly supported by her detailed affidavit. 2. Notice of the complaint was sent to Opposite Parties seeking their version of the case. 3. The Opposite Parties No.1 & 2 have contested the claim of the Complainants by raising preliminary objections to the effect that the present complaint is not maintainable; Complainant has not approached this Forum with clean hands; there is no manufacturing defect in the vehicle and the Complainant is leveling false allegations as the safety system is only a preventive system and in no way it guarantees against theft and the vehicle can be stolen by towing it. There is no imperfection, shortcoming, inadequacy of the roadworthiness of the car in question; as such the same is not covered under Section 2(1)(d) of the Act. On merits, the Opposite Parties has repeated its preliminary objections, while replying to the averments of the present complaint, in their para-wise reply. It is claimed that the immobilizer only prevents the starting of the engine and the vehicle can be opened and towed away, which can be later dismantled and sold as parts in black markets. Receipt of the legal notice has been denied. Thus, claiming no deficiency in service on its part, the answering Opposite Parties have prayed for the dismissal of the complaint. The reply of the Opposite Parties No.1 & 2 is neither verified nor is supported by any affidavit. 4. The Opposite Party No.3 has contested the claim of the Complainant by raising preliminary objections to the effect that the accusations made by the Complainant against the answering Opposite Party are unjustified, groundless and unsubstantiated; the Complainant has not approached this Forum with clean hands and has filed the present complaint only to grab money from the answering Opposite Party and this Forum has no jurisdiction to try and decide the complaint. On merits, the Opposite Party No.3 has repeated his preliminary objections, while replying to the averments of the present complaint, in his para-wise reply. It is claimed that the Complainant had purchased the vehicle from Pioneer Toyota Chandigarh and not from the answering Opposite Party. It was denied that the articles, as alleged, were lying in the car at the time of theft as nothing was stated by the Complainant in her statement at the time of lodging the F.I.R. before the police authorities. It is admitted that a satisfactory service was provided by the Complainant and the vehicle was returned on 7.9.2009. The Complainant was always, promptly attended to, whenever the car was taken to answering Opposite Party. The apprehension of the anti-theft system being tampered by the answering Opposite Party is only based on suppositions. It is also claimed that the engine immobilizer system is a theft prevention system and it cannot be repaired because this system can only be replaced with the new immobilizer system in case it is damaged. It is further claimed that the vehicle was stolen in July 2009 and after 9 months i.e. April 2010, she received the insurance claim against the vehicle and filling of the present complaint almost after two years clearly shows the afterthought of the Complainant. Thus, claiming no deficiency in service on its part, the answering Opposite Party has prayed for the dismissal of the complaint. The reply of the Opposite Party No.3 is not verified, but is duly supported by a detailed affidavit of Vivek Dutta, Chief Operating Officer. 5. Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties, and with the able assistance of the learned counsel for the parties, we have come to the following conclusions. 6. We have minutely perused the documents and have also gone through the complaint of the Complainant through which she has claimed that the car purchased by her after having scouted for different model of cars available with other companies, and had finally, preferred to buy the car of particular model of the Opposite Parties, only for the reason that this model had the safety features, as desired by her, as she wanted to be sure that her car would not be stolen. It was on the assurance of the Opposite Parties that the said car was theft proof and that there is a theft preventive feature in the car, attracted her. While mentioning about this feature, OPs explain that only when the customized key of the concerned car is inserted in the ignition switch, the transponder chip embedded in the key transmits an electronic signal to the vehicle and the engine would only start when the electronic code of the chip responds to the registered I.D. code of the vehicle. As such, there is no question of the vehicle being stolen by starting the engine with any other key, except the one provided with the vehicle. This feature of the car is also printed in the papers/ brochure concerning the said car, the same is annexed as Annexure C-1. 7. The Complainant having invested her entire confidence and faith in the theft proof system of the car purchased by her, also used to leave other articles inside the car, not fearing the same could be stolen, due to the theft proof feature of the car. We have also gone through the reply of the Opposite Parties to these averments of the Complainant, wherein the Opposite Parties have categorically stated that the immobilizer installed in the vehicle and which could only be operated with the original key of the vehicle, actually prevents the ignition of the engine and as such, the vehicle cannot be driven away by using any other key, except for the original one. However, while explaining the feature of Engine immobilizer unit, the Opposite Parties claims that the signal can be communicated to the immobilizer unit through (a) transponder (b) remote key (c) electronic key (d) coded keypad (e) Key Switch. As such, this system is only a preventive system and in no way it guarantees against theft. There are other factors based on which the vehicle can be stolen i.e. the vehicle can be stolen by towing away; the battery can be disconnected to disable or manipulate car alarm system and thereafter, the vehicle can be towed/ pulled or started by manipulating the ignition cable; and/or where the thief had access to the original key. Hence, the engine immobilizer unit only prevents the starting of the engine and the vehicle can be opened/ towed away by any of the aforesaid means. The Opposite Parties has also objected to the present complaint on the ground that the Complainant has also received the claim on account of theft of the vehicle from the insurance company. The Complainant having been indemnified for all her losses thus cannot raise any claim any further. 8. The Complainant also claims that before the episode of theft occurs to his vehicle, her vehicle was serviced by Opposite Party No. 3 for necessary repairs after it had met with an accident; the Complainant in para no.6 claims that the vehicle was got stolen within a span of one month after the repairs and thus, apprehends that the engine immobilizer system of the car must have been tampered by the employees of Opposite Party No.,3 in order to steal the same subsequently and that her apprehension is based upon due to the aforesaid fact as she had full faith on the assurance given by the concerned officials of Opposite Parties No. 1 and 2 itself concerning the safety features of the said car. 9. The entire claim of the Complainant hinges on the fact that the vehicle of the Complainant as per the assurances of the Opposite Parties No.1 and 2 that the same cannot be stolen, by starting/igniting the engine and driving it away. The Complainant while presuming that her vehicle was driven away by the thieves on the intervening night of 29/30.9.2009 and that this episode of theft can only happen either the engine immobilizer did not have the feature as claimed by the Opposite Parties or it was itself tampered with by the employees of Opposite Party No.3, while the vehicle was got repaired from Opposite Party no.3 after it had met with an accident, a month prior to the theft. The entire complaint of the Complainant is based on these two presumptions and there is not an iota of proof, of any type which can be considered or inspires confidence. In the absence of any such proof, we feel that the presumption of the Complainant cannot take place of such a proof. The complainant has also not alleged that there was any kind of assurance or guaranty, from the side of the OPs to indemnify her, in the event of complainant suffering loss of her vehicle by way of theft, so that her claim to file the present complaint could hold good. 10. Leave aside the theft of the vehicle, it is very interesting that the Complainant was so over confident about her vehicle not being stolen, that she usually used to leave the expensive items in the vehicle itself with a notion that as the vehicle is theft proof; all other articles lying inside the vehicle, could not be stolen, as if the articles lying inside the vehicle, too, could not be removed from the vehicle, without the vehicle being started and driven away. It is however a simple common sense that anything which is not an inseparable part can easily be removed or be stolen, though the Complainant has also not placed on record to prove that the expensive articles claimed, were left inside the car and that it was her usual habit of leaving such things in her car even while the vehicle was parked outside her house, though she could easily carry away her articles and leave them to safety of her household. The complainant while lodging the F.I.R. has mentioned the loss of few Debit Cards but there is no mention of the expensive articles value of which has been claimed through this complaint. 11. As the Complainant has already been indemnified for the loss of her vehicle by the insurance company, to our mind, she is not entitled for any further claim, as prayed through the present complaint. In view of the above observations, we feel that the Complainant has failed to make out any case against the Opposite Parties. Hence, the present complaint is dismissed. No costs. 12. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 23rd November, 2012 Sd/- (MADHU MUTNEJA) PRESIDING MEMBER Sd/- (JASWINDER SINGH SIDHU) MEMBER
| | MR. JASWINDER SINGH SIDHU, MEMBER | MRS. MADHU MUTNEJA, PRESIDING MEMBER | , | |
