R.S. Sharma, President:
1. The complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 against the opposite parties for seeking direction to the opposite parties : (a) to pay the price of the B.M.W. Rs.35,80,309/-, (b) to pay interest on the said amount @ 18% p.a. from 29.03.2013 till date of payment (c) to pay compensation for mental agony Rs.2,00,000/-, (d) to pay cost of litigation and other relief, which this Commission deems fit and just.
2. Brief facts of the complaint as per the complainant are : that the complainant is a reputed businessman and his business spread all over the State of Maharashtra and Chhattisgarh. The O.P. No.1 is manufacturer of B.M.W. Car and its office is situated at D.L.F. Cyber City, Phase “ 2, No.8, Tower B, 7th Floor, Gurgaon, Haryana and the O.P.Nos.2 and 3 are the authorized dealers of O.P.No.1 and their offices are situated at Raipur and Nagpur. The complainant purchased B.M.W.X .1 20 DX Line Car from O.P.No.2 on 29.03.2013 at the price of Rs.35,80,309/- and the payment was made by the complainant to the O.P.No.2. The complainant purchased the said vehicle on the basis of its reputation and impression given by the O.P. No.2 regarding the said vehicle. On 26.06.2013 when the complainant was driving the vehicle, suddenly he realize that there was a lot of vibration in the vehicle and therefore, he immediately informed the O.P.No.3 regarding it. The O.P.No.3 advised and instructed the complainant not to start the vehicle and the complainant followed all the instructions given by the O.P.No.3. On 27.06.2013, the vehicle was taken by the employees of the O.P.No.3 in their workshop. On 28.06.2013, the complainant received a message through email from Swapnil Satone, Service Manager of O.P.No.3 that the vehicle in question was passed through the waterlogged area and therefore, some damage and insurance needs to be claimed from the Insurance Company i.e. Bajaj Allianz and O.P.No.3 directed the complainant to file some documents. O.P.Nos.1 to 3 did not properly give response and the vehicle was not repaired timely and the approach of the OPs are casual and due to negligent act of the OPs, the complainant suffered lot of mental agony and the OPs had given false assurance to the complainant that the vehicle would be handed over to him after repairing works within stipulated time. The complainant is depositing a sum of Rs.65,900/- per month as installment. The vehicle was not repaired by the O.P.No.3 within prescribed time and vehicle was kept in the workshop of O.P.No.3 for near about 3 months and so the complainant could not ply the vehicle. Due to non-repairing of the vehicle in time, the complainant operated his business after obtaining a car on rent and he incurred a sum of Rs.1,25,000/-. On 28.06.2013, the O.P.No.3 told the complainant that the engine of the car had suffered mechanical damage from hydrostatic locking, due to ingestion of water through the engine's air intake system. The ground taken by the O.P.No.3 is false. The vehicle was never driven in water surface area. The complainant is depositing a sum of Rs.65,900/- per month as installment. The O.P.No.3 kept the vehicle unauthorizedly for near about 3 months. The complainant sent legal notice to the OPs on 22.08.2-13, but OPs did not remove the defect of the vehicle and O.P.No.3 kept the vehicle in its possession unauthorized for near about 3 months. Therefore, the OPs committed deficiency in service and complainant was forced to file consumer complaint before this Commission. The complainant filed complaint before this Commission against the OPs seeking reliefs, as mentioned in relief clause of the complaint.
3. The O.P.Nos.2 and 3 filed their written version and pleaded that the complainant made complaint before the O.P.No.3 on 26.06.2013 and on the next day the vehicle was taken in workshop (establishment) of O.P.No.3 for repairing work. After inspection of the vehicle, the O.P.No.3 found that the vehicle was driven in water surface area and in the vehicle the water stored. The O.P.No.3 intimated the complainant on 28.06.2013. The complainant purchased the B.M.W.X .1 20 DX Line Car bearing registration No.C.G.07-AK-3111 on 29.03.2013 from O.P.No.2 after inspecting the vehicle and being satisfied with the condition of the vehicle and complainant successfully plied the vehicle for near about 4-5 months and the vehicle had run for near about 3000 kms and the complainant never made any complaint during this period to the O.P.No.2. On 26.06.2013, when the complainant had driven the vehicle through deep water and due to deep water enters in the vehicle. O.P.No.3 inspected the vehicle and took the vehicle in its workshop (establishment) at Nagpur. Before taking possession of the vehicle, the O.P.No.3 instructed the complainant not to start the vehicle till further instruction. On inspection it is found that the vehicle was driven in deep water and due to deep water, car had suffered mechanical damage from hydrostatic locking, due to ingestion of water through the engine's air intake system. The O.P.No.3 started repairing work of the vehicle and advised the complainant to make claim before the Insurance Company and also demanded insurance certificate from the complainant and on 29.06.2013, the complainant provided insurance certificate of the vehicle to the O.P.No.3 and Bajaj Allianz General Insurance Company Limited approved the claim on 31.07.2013. For repairing of the vehicle, set bolt part was required to be replaced / changed, therefore, O.P.No.3 demanded the set bolt part from O.P.No.1 on 02.08.2013 through purchase order No.PP013020A and set bolt part was received by the O.P.No.3 on 08.11.2013 and on 08.11.2013 itself replaced set bolt part and after completing repairing work of the vehicle, intimation regarding this was given to the complainant and Insurance Company. On 11.11.2013, the complainant himself came to the workshop (establishment) of O.P.No.3 and Shri Swapnil, Service Manager of the O.P.No.3 told the complainant that defect was completely removed and the vehicle was ready for plying and O.P.No.3 gave bill of Rs.3,55,558/- for repairing work to the Insurance Company, out of which Rs.3,07,057/- was paid by the Insurance Company and the rest of the amount Rs.48,501/- was demanded by O.P.No.2 from the complainant, but the complainant did not pay the said amount to the O.P.No.3. O.P.Nos.2 and 3 never committed any deficiency in service, therefore, the complaint of the complainant, is liable to be dismissed.
4. O.P.No.1 filed its written version and pleaded that there is no privity of contract between the complainant and O.P. No.1, therefore, the complainant is not consumer of O.P.No.1 and the complaint is liable to be dismissed. B.M.W. India Pvt. Ltd. sales its cars to several dealers in India. No technical report has been filed by the complainant to establish any manufacturing defect in the car. Prior to 29.06.2013, no complaint was made by the complainant regarding defect of the car and the complainant had driven the car for near about 3 months without any problem. O.P.No.1 carefully checked the quality of the cars at every stage and are internationally recognized for their reliability and efficiency and admired all over the world. Bajaj Allianz General Insurance Company Limited, who is insurer of the complainant is necessary party in the complaint and for want of necessary party, complaint is liable to be dismissed. On being inquired by O.P.No.1 from O.P.No.3, the O.P.No.3 intimated the O.P.No.1 that repairing work of the vehicle will be commenced only on 31.07.2013 after the Insurance Company, had approved it. There was delay for more than 1 month in the regard, because the vehicle was had to be examined by the Surveyor of the insurer and the survey work was done on 29.07.2013, therefore, some delay was caused. The complainant had not paid the repairing charges and the complainant has wrongly impleaded the O.P.No.1. There is no privity of contract between the complainant and O.P.No.1 and no cause of action has arisen against the O.P.No.1. The engineer examined the car and he found that the engine of the car had suffered mechanical damage from hydrostatic locking, due to ingestion of water through the engine's air intake system and hydrostatic lock occurs when a car is driven at a high speed through deep water logged ditches. The Owner's Manual clearly warns against this and advises caution for optimum and safe user. The complainant has not approached this Commission with clean hands and has made false and misleading allegations against O.P.No.2, therefore, complaint is liable to be dismissed. There is no manufacturing defect in the vehicle, hence O.P.No.1 is not responsible for paying any compensation to the complainant.
5. On the basis of averments of both the parties, the points for determination are :-
1. Whether the O.P.No.3 has unauthorizedly kept the vehicle for near about 3 months ?
2. Whether the complainant incurred a sum of Rs.1,25,000/- towards rent of the vehicle for operating his business after obtaining a car on rent ?
3. Whether OPs have committed any deficiency in service ?
4. Whether the complainant is entitled to receive back the price of the vehicle from the OPs ?
Conclusion and its reason :
6. Now, firstly we shall consider whether the vehicle was having any manufacturing defect.
7. Shri B.C. Mishra, learned counsel appearing for the complainant argued that the complainant purchased B.M.W.X .1 20 DX Line Car bearing registration No.C.G.07-AK-3111 on 29.03.2013 from O.P.No.2 and paid a sum of Rs.35,80,309/-. He further argued that on the basis of reputation of B.M.W Car, the complainant impressed and purchased the B.M.W. Car for safety and comfort. On 26.06.2013, when the complainant was driving the car, he felt strong vibration in the car and complainant reported the matter to O.P.No.3. The employees of O.P.No.3 had taken the vehicle to their workshop (establishment), but after lapse of 2 ½ months, the O.P.No.3 did not repair (remove) the default of the car and gave false assurance to the complainant. Due to non repairing of the car, the complainant operated his business after obtaining a car on rent and he incurred a sum of Rs.1,25,000/-. On 28.06.2013, the O.P.No.3 told the complainant that the engine of the car had suffered mechanical damage from hydrostatic locking, due to ingestion of water through the engine's air intake system. The ground taken by the O.P.No.3 is false. The vehicle was never driven in water surface area. The complainant is depositing a sum of Rs.65,900/- per month as installment. The O.P.No.3 kept the vehicle unauthorizedly for near about 3 months. The complainant sent legal notice to the Ops on 22.08.2-13, but OPs did not remove the defect of the vehicle and O.P.No.3 kept the vehicle in its possession unauthorized for near about 3 months. Therefore, the OPs committed deficiency in service.
8. Shri Mohit Diwan, learned counsel appearing for the O.P.No.1 argued that there is no privity of contract between the complainant and O.P. No.1, therefore, the complainant is not consumer of O.P.No.1 and the complaint is liable to be dismissed. B.M.W. India Pvt. Ltd. sales its cars to several dealers in India. No technical report has been filed by the complainant to establish any manufacturing defect in the car. Prior to 29.06.2013, no complaint was made by the complainant regarding defect of the car and the complainant had driven the car for near about 3 months without any problem. O.P.No.1 carefully checked the quality of the cars at every stage and are internationally recognized for their reliability and efficiency and admired all over the world. Bajaj Allianz General Insurance Company Limited, who is insurer of the complainant is necessary party in the complaint and for want of necessary party, complaint is liable to be dismissed. On being inquired by O.P.No.1 from O.P.No.3, the O.P.No.3 intimated the O.P.No.1 that repairing work of the vehicle will be commenced only on 31.07.2013 after the Insurance Company, had approved it. There was delay for more than 1 month in the regard, because the vehicle was had to be examined by the Surveyor of the insurer and the survey work was done on 29.07.2013, therefore, some delay was caused. The complainant had not paid the repairing charges and the complainant has wrongly impleaded the O.P.No.1. There is no privity of contract between the complainant and O.P.No.1 and no cause of action has arisen against the O.P.No.1. The engineer examined the car and he found that the engine of the car had suffered mechanical damage from hydrostatic locking, due to ingestion of water through the engine's air intake system and hydrostatic lock occurs when a car is driven at a high speed through deep water logged ditches. The Owner's Manual clearly warns against this and advises caution for optimum and safe user. The complainant has not approached this Commission with clean hands and has made false and misleading allegations against O.P.No.2, therefore, complaint is liable to be dismissed. There is no manufacturing defect in the vehicle, hence O.P.No.1 is not responsible for paying any compensation to the complainant. He placed reliance on Indian Oil Corporation vs. Consumer Protection Council, Kerala and Another, (1994) 1 Supreme Court Cases 397; Maruti Udyog Limited. Vs. Arjun Singh and Anr. III (2009); Hero Honda Motors Limited vs. K.B. Murleedharan and Anr. II (1994) CPJ 27 (NC); Maruti Udyog Limited vs. Nagender Prasad Sinha and Anr. II (2009) CPJ 295 (NC); Rajiv Dhiman vs. Maruti Udyog Limited and Others, Appeal No.199 of 2005 decided by Union Territory Consumer Disputes Redressal Commission, UT Chandigarh on12.04.2006; Tata AIG General Insurance Co. Ltd. vs. M/s Ayushveda Informatics (I) Ltd., First Appeal No.34 of 2012 decided by The state Consumer Disputes Redressal Commission, Union Territory, Chandigarh on 09.02.2012; Tata AIG General Insurance Co. Ltd. Through Its General Manager vs. Dr. Navneet Agnihotri and others, First Appeal NO.114 of 2013 decided by State Consumer Disputes Redressal Commission, U.T., Chandigarh on 09.07.2013; The New India Assurance Co. Ltd. vs. Rakesh Chawla, RBT/First Appeal No.58 of 28.03.2011 decided by State Consumer Disputes Redressal Commission, U.T., Chandigarh on 18.01.2012; M/s Talwarsons Jewellers vs. BMW India Private Limited and Others, R.B.T. /Consumer Complaint No.392 of 2013 decided on 10.12.2013 by District Consumer Disputes Redressal Forum “ I, U.T. Chandigarh; Om Prakash Jindal, M/s Sarvpriya Tuber Pvt. Ltd. vs. M/s Krishna Automobiles and Others, Consumer Complaint No.CC/404/20 decided by District Consumer Disputes Redressal Forum “ II, U.T. Chandigarh on 31.10.2013; Subhash Sharma vs. BMW India Pvt. Ltd. and Others, Consumer Complaint No.779 of 2012 decided on 26.07.2013 by District Consumer Disputes Redressal Forum “ I, U.T. Chandigarh on 27.06.2013; M/s Escorts Ltd. and Anr. Vs. N.K. Dasappa, CPT 1995 (2) V-VI-196; M/s A.B. Motors Private Ltd. vs. Admiral Impex Pvt. Ltd. II (2010) CPJ 317 (NC); Shri Vithalbhai Valajibhai and Anr. Vs. Patil Nanajibhai Khodabhai Kayada, (1993) I CTJ 599 (Gujrat SCDRC); Sushila Automobiles Pvt. Ltd. vs. Dr. Birendra Narain Prasad and Ors. III (2010) CPJ 130 (NC); Ajitha Chit Funds (P) Ltd. Vs. Tata Engineering and Locomotive Co. Ltd. and others, 2007 CTJ 617 (CP) (NCDRC); Tata Engineering and Locomotive Co. Ltd. and another vs. M. Moosa (1994) 2 CTJ 1046 (CP) (NCDRC); Maruti Udyog Ltd. vs. Susheel Kumar Gabgotra and another, AIR 2006 SC 1586.
9. Shri Sudeep Tiwari, learned counsel for the O.P.Nos.2 and 3 argued that the O.P.Nos.2 and 3 are authorized dealer of O.P.No.1 and on 26.06.2013, the O.P.No.3 received information from the complainant regarding vibration in the vehicle, then the O.P.No.3 instructed the complainant not to start the vehicle. On next day i.e. 27.06.2013, the vehicle was taken into workshop of O.P.No.3. The Engineer of the O.P.No.3 inspected the vehicle and he found that the vehicle was passed through deep water and as water had entered in the engine of the vehicle and due to ingestion of water in the engine through air and oil filter, hydrostatic locking occurred in the vehicle. The information regarding above problem was given to the complainant by O.P.No.3 and O.P.No.3 wrote a letter to O.P.No.1 for providing parts and when parts were received, the vehicle was repaired and the expenditure of near about Rs.3,55,558/- was incurred. The O.P.No.3 advised the complainant to make claim before the Insurance Company. The Insurance Company paid a sum of Rs.3,07,057/- to the O.P.No.3 as repairing charges and rest of the amount i.e. Rs.48,501/- was required to be paid by the complainant. He further argued that the O.P.No.3 sent message to the complainant to deposit rest of the amount i.e. Rs.48,501/- and take delivery of the vehicle, but the complainant did not show his interest and was not keen to take delivery of the vehicle and instead of paying repairing charges, the complainant filed a false complaint with ulterior motive and mala fide intention, therefore, the complaint is liable to be dismissed. He placed reliance on Maruti Udyog Ltd. vs. Susheel Kumar Gabgotra and another, AIR 2006 SC 1586.
10. We have heard the arguments of learned counsel for the parties and have also perused the documents produced.
11. The complainant filed documents. Document Ex.P-1 is Proforma Invoice of Munich Motors, document Ex. P-2 is Tax Invoice of Munich Motors, document Ex. P-3 is Acknowledgement note, document Ex. P-4 is Motor Vehicle Cover Note, document Ex.P-5 is Trade Certificate, document Ex.P-6 to Ex. P.-8 are Money Receipts dated issued by Mandhan Motors Pvt. Ltd., document P-9 is New Vehicle Warranty Terms and Conditions, document Ex.P.10 is a letter written the complainant, document Ex.P-11 is Job Card dated 27.06.2013 of Munich Motors, document Ex. P-12 is notice dated 22.08.2013 sent by Shri Rahul Dharmadhikari, Advocate to the OPs on behalf of the complainant, document Ex.P.-13 is demand draft dated 15.09.2013, Ex.P-14 is statement of account.
12. O.P.No.2 and 3 also filed documents. Schedule 1 is Vehicle Inventory Slip, Schedule 2 is Job Card Copy of Munich Motors, Schedule 3 is Insurance Final Approval document, Schedule 4 is purchase order dated 02.08.2013, Schedule 5 to 7 are copies of email sent, Schedule 8 is Tax Invoice dated 12.07.2013, Schedule 9 is Insurance Liability Details.
13. O.P.No.1 filed documents. Document Annexure A is New Vehicle Warranty Terms and Conditions, document Annexure “ B is 2011 BMW Dealer Agreement between BMW India Private Limited and Mandhan Motors Private Limited, document Annexure C is copy of the relevant pages of the Owners Manual, document Annexure D is copy of the letter dated September 13, 2013, document Annexure E is copy of the post office receipt for the registered post A/D.
14. Now we shall examine whether the complaint is maintainable against the manufacturer and manufacturer is also jointly and severally liable for payment of compensation to the complainant.
15. We have perused record. In the complaint the complainant did not plead that the vehicle in question was suffering from any manufacturing defect. He simply pleaded that on 26.06.2013 when he was driving the vehicle, then he felt that there was a lot of vibration in the vehicle and therefore, he immediately informed the O.P. No.3 regarding it. The engineer of the O.P.No.3 inspected the vehicle in question and he found that there was no manufacturing defect in the engine of the vehicle and he found that hydrostatic locking occurred due to ingestion of water in the engine through air and oil filter. In the complaint neither the complainant pleaded nor placed any documents to prove that there was manufacturing defect in the car. On the contrary, from the perusal of the documents submitted by the OPs, it appears that the car was passed through deep water and as water had entered in the engine of the vehicle and due to due to ingestion of water in the engine through air and oil filter hydrostatic locking occurred in the vehicle. Therefore, the complainant has not been able to prove that the car was suffering from any manufacturing defect. It is admitted fact that the complainant informed the O.P.No.3 regarding vibration in the car. It is also admitted fact that the O.P.No.3 instructed the complainant not to start the car. On the next day, the employees of the O.P.No.3 took the car then they found that hydrostatic locking occurred due to ingestion of water in the engine through air and oil filter.
16. O.P.No.1 pleaded that the complainant is not a consumer and he placed reliance on Indian Oil Corporation Vs. Consumer Protection Council, Kerala, (Supra). The above arguments is not acceptable. The O.P.No.1 is manufacturer of the B.M.W. Car and O.P.No.2 and 3 are its authorized dealers and the complainant purchased the car from the authorized dealer and if any manufacturing defects are occurred in the car, then the manufacturer and dealers are jointly and severally responsible and the consumer is not concerned with any agreement executed between the manufacturer and the dealer and both are responsible for the defects in the product.
17. In the case of Jose Philip Mampillil vs. Premier Automobiles Ltd. and Anr., AIR (2004) (SC) 1529 = 2000 Volume II SCC 278 = 2004 Volume 1 CPJ 9, it has been observed that defect in the car “ liability to repair the car would be jointly and severally on the manufacturer and the dealer. [See also R. Raju Rao vs. Mysore Auto Agency and another, 2006 (2) CPJ 64 (NC)]
18. On the basis of above judgments, it appears that the complainant purchased the car from the authorized dealer of the O.P.No.1, who is manufacturer of the car, therefore, the complainant is consumer of the OPs.
19. It is admitted fact that O.P.No.3 took the vehicle in its premises on 27.06.2013. The complainant sent legal notice to the OPs on 22.08.2013. In the said notice, it is mentioned that "at this juncture I have been instructed that even the name of the insurance company has been wrongly mentioned in the mail dated 15.07.2013. My client insured his vehicle with Bajaj Allianz and the Customer Service of you noticee in the said mail blamed Bharti Axa General Insurance Company. My client was also given a false assurance in the said mail that the vehicle would be handed over to him post repairs in standard time."
20. Annexure D is the reply dated 13.09.2013 to the letter dated 22.08.2013 sent on behalf of Shri Harmit Singh B. Sethi. In the said document Annexure D, it is mentioned that "We would also like to advise your client via this letter that we are continuously monitoring the parts consignments as we are eager to restore his vehicle back to series standard so he can once again continue to enjoy the unrestricted use of his vehicle.
21. The O.P.Nos.2 and 3 filed documents. In Annexure “ 4 it is mentioned :
"Order Type : IPVO
Sales Order : 1103024022
Purchase order : PP0130020A
Requested Date : 02.08.2013
Order Status : Completed.
Net Value : 120,027.33 INR"
22. In Annexure 7 which is email sent on 21.12.2013, it is mentioned that "Please to inform you that we arrange the said bolts and the said car is complete from our side we took the test drive and car is running fine. Today we update this status to insurance company and they will come soon for the final inspection of the car. Once all formalities will complete we will update you on the same."
23. In document Annexure 9, which is email sent on 17.12.2013, it is mentioned :
"Total liability is Rs.307057/- bifurcation is given below. Liability is Rs.21146 for claim no.OC-14-2101-1801-00000690 of Vehicle No.CG07A3111 of Mr. Harmit Singh Sethi. Liability Rs.285911 for claim no.OC-14-2101-6608-000000033 of vehicle No.CG07A3111 of Mr. Harmit Singh Sethi".
24. Looking to the above documents, it appears that the car was not repaired by the O.P.No.2 timely and still the vehicle is kept in the premises of the O.P.No.3.
25. The O.P.No.3 in its reply pleaded in para 23 that the expenditure incurred of repairing of the car is Rs.3,55,558/- and it received a sum of Rs.3,07,057/- from the Insurance Company and the rest of amount Rs.48,501/- is to be paid by the complainant to the O.P.No.3 and the same has not been paid to it till date.
26. The complainant prayed for refund total price of the car along with interest, but the complainant has not been able to prove that the car was suffering from any manufacturing defect and defect was due to passing of the car through the waterlogged area, therefore, the complainant is not entitled to receive back the value of the car.
27. In the case of Maruti Udyog Ltd. vs. Susheel Kumar Gabgotra and another, AIR 2006 SC 1586, Hon'ble Supreme Court has observed thus :-
"10. In Corpus Juris Secundum the observations to which reference was made by the High Court read as follows :
"On a sale of motor vehicle by a manufacturer to dealer there may be an implied warranty that it is reasonably fit for, or adapted to, the uses for which it is made and sold; and such a warranty is not excluded by the silence of the contract of sale as to warranties."
11. The principles stated above can never be doubted. But what is relevant in the case at hand is that the warranty conditions were specially stated. This is not a case of silence of a contract of sale as to warranty. Therefore, the High Court was not justified in directing replace of the vehicle.
12. But on the peculiar fact of the case relief to the respondent No.1 has to be moulded. In almost a similar case certain directions were given in Jost Phillip Mampillil vs. Premier Automobiles Ltd. 2004 (2) SCC 278."
28. In Rita Bhalla vs. Tata Motors, Marketing and Customer Support and Anr. 2014 (1) CPR 240 (NC), Hon'ble National Commission observed that Consumer Protection Act, 1986 “ Sections 15, 17, 19 and 21 “ Automobile “ Manufacturing defect “ District Forum directed Ops to get vehicle repaired all defects mentioned in expert report, free of cost, deliver vehicle to Complainant free of all defects and pay Rs.10,000/- as compensation and litigation cost “ State Commission after considering evidence on file and expert report, dismissed appeal “ Expert report does not show that vehicle has any manufacturing defect “ It only mentions that there may be some problem at the time of sub-assembling of engine which will require Rs.80,000/- for its repair “ Fora below have already ordered for removal of defects and to repair vehicle without taking any charges from complainant “ Revision Petition dismissed.
29. Vehicle in question was not suffering from any manufacturing defect, but according to O.P.Nos.2 and 3 there may be problem in the engine which will require expenditure of Rs. Rs.3,55,558/ for its repairing and according to the O.P.No.2 and 3 they received repairing charges Rs.3,07,057/- from the Insurance Company and therefore, the O.P.No.2 and 3 are not entitled for receiving any further charges for the repairing of the vehicle from the complainant. The O.P.No.2 are liable to remove the defect in the car and to repair the car without taking any charges from the complainant and O.P. Nos.2 and 3, who received repairing charges of Rs.3,55,58/- from the Insurance Company are liable to refund it to the complainant and they are also liable to remove the defect in the car and to repair the car without obtaining any charges from the complainant.
30. After having considered the contentions of both the parties, we are of the considered view that the car was not suffering from any manufacturing defects, therefore, the complainant is not entitled to receive back the price of the vehicle and it must be borne in mind that the car was passed through deep water and water was entered into engine of the car, therefore hydrostatic locking occurred due to ingestion of water in the engine through air and oil filter, which is not a manufacturing defect, therefore, the complainant is not entitled for refund of the price of the car.
31. Looking to the documents, it appears that car had been taken for repairing to the workshop of O.P.No.3 and the car is still kept in the workshop of O.P.no.3 and O.P.No.3 received a sum of Rs.3,07,057/- from the Insurance Company. So called defect in the car was occurred within 3 months from the date of purchase of the car, therefore, the Ops are liable to remove the defect in the car and to repair the car without taking any charges from the complainant.
32. Therefore, the complaint is partly allowed. OPs are directed to release the car in favour of the complainant without taking any amount from the complainant. The O.P.No.3 will also refund the amount of Rs.3,07,057/- (Rs. Three Lakh Seven Thousand and Fifty Seven only) to the complainant with interest @ 6% from the date when he received the amount from the Insurance Company till date of payment and the car must be roadworthy and sans defect. The order of this Commission be complied within 30 days from the date of the order. The OPs will also pay a sum of Rs.50,000/- (Rs. Fifty Thousand Only) as compensation for mental agony and Rs.10,000/- (Rs. Ten Thousand Only) as cost of litigation to the complainant. If the order of this Commission is not complied within stipulated time, then the complainant is entitled for receiving penalty of Rs.500/- (Rs. Five Hundred Only) per day till the car is handed over to him.