D.O.F:24/02/2021
D.O.O:10/03/2023
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD
CC.No.49/2021
Dated this, the 10th day of March 2023
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Valiya Pura Abdul Khader,
S/o ValiyapuraHassankutty,
V.P. House, : Complainant
Mogral P.O, Mogral,
Kasaragod- 671321
(Adv. K.Abdul Nasir & Giriprasad.P)
And
EVM Autokraft India Pvt. Ltd,
23/649 A1,
Angel Plaza, NH 47,
South Kalamassery, : Opposite Party
Kochi- 682022
(Adv. Benny Jose)
ORDER
SRI.RADHAKRISHNAN NAIR.M : MEMBER
The facts of the case in brief is that the complainant purchased a BMW X1SDRIVE 20 DX line car from the opposite party on 29.02.2020,which was registered with No.KL 14 Z 222.The complainant was maintaining the car properly and all periodical services were done with in time. The complainant collected the vehicle from the Calicut BMW service centreon 28.08.2020 and on the way back he noticed that both the rear tyres were vibrating.He approached the Mangalore BMW service centre and the technician checked the vehicle and stated that the rear alloy wheel is bent. The car was purchased as a wedding gift for his daughter and son in law. The car was used by the son in law, who noticed unusual tearing of the rear tyres within a short period of time. Within 4 months of use the rear tyres were completely worn out. The complainant felt ashamed that he gifted a defective vehicle to his daughter and son in law.On repeated requests the opposite party replaced the tyres but did not take any steps to find out the actual defects and cure the same. The replaced tyres are also tearing rapidly.The wheels fitted with the vehicle are defective and only by replacing the wheels the issues could be solved.But the opposite party is not ready to replace the wheels. There is manufacturing defects in the wheels. There was no occasion of running the vehicle on rough roads. Another issue is that eventhough the opposite partyhad agreed to send the security number plate of the car soon after the registration it was not sent in spite of several demands.
The act of the Opposite Party amounts to unfair trade practice and service deficiency, due to which the complainant suffered great mental agony and monetary loss.
Hence the complaint is filed for a direction to the Opposite Party to repair the vehicle by replacing the defective wheels and to pay Rs.10,000,00/- towards the compensation for mental agony and hardships with cost.
The notice sent to the Opposite Party served and they entered appearance through their counsel, who filed written version.
As per the version of the Opposite Party, the complaint is false frivolous vexatious and not maintainable in law and as such it is liable to be dismissed. The complaint is bad for non-joinder of necessary parties as the manufacturer of the tyre is not made party.
It is admitted that the complainant purchased the car from the opposite party. But all the other averments in the complaint are false and hence denied. The opposite party submit that the complainant reported the complaint only after about 6 months of the purchase of the car. On examination it was found that tyres worn out are due to the driving style of the customer and not due to any manufacturing defect. At that time the odometer reading of the vehicle was 8227km. Thereafter the complainant directly sent complaintto the BMW Company via E-Mail. After considering the said complaint BMW company also confirmed and replied to the issue andconfirmed that it is not due to the manufacturing defect and hence the replacementis not possibleunder the warranty.But the complainant was persistently creating nuisance and hence the superior persons in the management of BMW instructed to change the tyres and accordinglythe opposite party provided two brand new tyres costing Rs.41,000/-. Even after that the complainant filed complaint that he found bent on both rear alloy wheels after the repairs. But there after the complainant did not take the vehicle to the service centres of the opposite party to ascertain whether there is any problem.
When the complainant filed e-mail complaint raising the defects in the alloy wheels, the opposite party sent reply directing to produce the vehicle for inspection but that was not complied with.
The opposite party is only a dealer and they are not responsible for the manufacturing defects of the tyres. The complainant is not entitled to for any relief claimed in the complaint.There is no deficiency of service on the part of the Opposite Party.The complaint is liable to be dismissed.
As per the order in the IA No.65/2021 filed by the complainant, an expert commission was appointed and after inspection the commissioner filed his report.
The Complainant filed the proof affidavit in lieu of chief examination and produced documents which are marked as Ext. A1and Ext.C1
The Ext - A1 is the owner’s manual of the vehicle. Ext.C1 is the report of the expert commissioner. The complainant was cross examined as PW1.
The Manager of the opposite party also filed the proof affidavit in lieu of chief examination,who was cross examine a DW1.
Based on the pleadings and evidence of the rival parties in this case the followingissues are framed for consideration.
1. Whether there is any unfair trade practice or service deficiency on the part of any of the opposite party?
2. If so, what is the relief?
For convenience, both these issues are considered together.
Here the case of the complainant is that the two wheels fitted with the BMW X1SDRIVE 20 DX line car purchased from the opposite party are defective and only by replacing the wheels the issues could be solved. But the opposite party is not ready to replace the wheels. There is manufacturing defects in the wheels. There was no occasion of running the vehicle on rough roads. Another issue is that even though the opposite party had agreed to send the security number plate of the car soon after the registration it was not sent in spite of several demands.
The opposite party submit that the complainant reported the complaint only after about 6 months of the purchase of the car. On examination it was found that tyres worn out are due to the driving style of the customer and not due to any manufacturing defect. At that time the odometer reading of the vehicle was 8227km. Thereafter the complainant directly sent complaint to the BMW Company via E-Mail. After considering the said complaint BMW company also confirmed and replied to the issue and confirmed that it is not due to the manufacturing defect and hence the replacement is not possible under the warranty.
Regarding the evidence in this case, Ext.C1 is the report of the Expert commissionerMr.Sujith George, Asst. Motor Vehicle Inspector,RT Office Kasaragod reports that he inspected the disputed vehicle BMW X1SDRIVE 20 DX line car with No.KL 14 Z 222 at the premise of the RTO Kasaragod on 10.03.2021, 13 hours, in presence of Mr.Premkumar.V, Customer Relation Manager, EVMAutokraft India Pvt.Ltd. and Mr.Valiyapura Abdul khader.
“On physical and thorough inspection, I have noticedthat the two alloy wheels were bent. Also inspected those alloy wheels in wheel balancing machine and the same defect is confirmed. Hence this complaint is genuine”.
The opposite party did not file any objection to the commission report nor filed any steps to set aside the report.
The opposite party submits that on their examination of the car it was found that tyres worn out is due to the driving style of the customer and not due to any manufacturing defect. But they did not produce a copy of their report prepared after examination of the car. There is no evidence to show that the rapid worn out of the tyres are due to driving style of the complainant.
The expert commissioner conclusively reports that on physical and thorough inspection, he had noticed that the two alloy wheels were bent. Also inspected those alloy wheels in wheel balancing machine and the same defect is confirmed. Hence this complaint is genuine.
Therefore it can be concluded that the rapid wearing out of the tyres is due to the defective alloy wheels, which are seemed to be having bent.
The opposite party submit that they are only a dealer and they are not responsible for the manufacturing defects of the tyres. But the complainant booked and purchased a complete vehicle and not part by part. It is the dealer who arranged the wheels of their choice and fitted to the vehicle and delivered to the complainant. So the opposite party dealer is definitely answerable for the defective wheels.
The opposite party submits that they have already replaced two brand new tyres costing Rs.41,000/-in the place of worn out tyres. But it has come to light from the evidence that the main defect is on the wheels, due to which the tyres are rapidly wearing out. They ought to have chosen and fit defect free wheels to the vehicle of the complainant.
Therefore this commission is of the view that the opposite party is liable to replace the two defective wheels with defect free wheels. Since the opposite party was not ready to replace the defective wheels on request made by the complainant there is negligence and service deficiency on their part.
Considering the facts and circumstances of the case, this commission is of the view that there is negligence and service deficiency on the part of the OppositeParty, due to which the complainant suffered mental agony and hardships apart from financial loss.
The complainant estimate the damage caused to him to a tune of Rs.10,00,000/- But there is no evidence for such a huge damages. Thecomplainant submit that the car was purchased as a wedding gift for his daughter and son in law. The complainant felt ashamed that he gifted a defective vehicle to his daughter and son in law. Considering all these, this commission holds that a total amount of Rs.50,000/- will be a reasonable compensation in this case.
In the result the complaint is allowed and the Opposite Party is directed to replace the two wheels (which are bent) of the complainant’s No. KL 14 Z 222 BMW X1SDRIVE 20 DX line carwith new defect free wheels. The opposite party is also directed to pay Rs. 50,000/- (Rupees Fifty Thousand only) towards compensation and Rs.5,000/- (Rupees Five Thousand only) towards litigation cost to the complainant .
Time for compliance is 30 days from receipt of the copy of this judgement.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1: Manual of the vehicle
C1: Report of the expert commissioner
PW1: V.P. Abdul Khader
DW1: Gimson Jose Edappilly
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Ps/ Assistant Registrar
