Delhi District Court
Ms Massorie Himalayan Resorts Pvt. Ltd ... vs Audi And Others on 3 September, 2024
IN THE COURT OF MS. PURVA SAREEN,
DISTRICT JUDGE-01, SOUTH, SAKET COURT, NEW DELHI
Civil Suit No.208327/16 (Old No.21353/2014)
DLST01-001091-2014
(I) M/s Massorie Himalayan Resorts Pvt Ltd
H-43, Green Park Extn.,
New Delhi-110016
(II) Ajay Agrawal
(III) Sameera Agrawal
Both R/o H. No.35, Sector-16A,
Faridabad, Haryana-121002
.... Plaintiffs
VERSUS
(I) Audi AG
I/FF-3, 85045
Ingolstadt, Germany
(II) Skoda Auto Volkswagen India P. Ltd
4th Floor, Silver Utopia
Cardinal Gracious Road,
Chakala, Andheri (East)
Mumbai, Maharashtra-400099
(III) Audi Gurgaon
Orchid Centre
Golf Course Road,
Gurgaon, Haryana-122002
..... Defendants
Date of institution : 02.05.2015
Date for reserving orders : 07.08.2024
Date of pronouncement of judgment : 03.09.2024
JUDGMENT
SUIT FOR DAMAGES CS No.208327/16 (Old No.21353/2014) Page 1 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors
1. The present suit has been filed by the plaintiffs namely (i) Massoorie Himalayan Resorts Pvt Ltd (hereinafter referred to and called as plaintiff no.1), (ii) Ajay Agrawal (hereinafter referred to and called as plaintiff no.2) and (iii) Sameera Agrawal (hereinafter referred to and called as plaintiff no.3) for claiming damages against the defendants namely (i) Audi AG (hereinafter referred to and called as defendant no.1), (ii) Skoda Auto Volkswagen India Pvt Ltd (hereinafter referred to and called as defendant no.2) and (iii) Audi Gurgaon (hereinafter referred to and called as defendant no.3).
2. The case of the plaintiff is that plaintiff no.1 is a company incorporated under the provisions of Companies Act, engaged in the business of Real Estate Projects, development, construction and sales of various residential and commercial projects. Plaintiff no.2 is Authorized Representative of plaintiff no.1 and plaintiff no.3 is wife of plaintiff no.2. Defendant no.1 is a German Automobile manufacturer company having its headquarters at Ingolstadt, Bavaria, Germany. Defendant no.2 is a company established in March 2007 and is manufacturer of high quality and innovative luxury cars. (Skoda Auto India Pvt Ltd, earlier mentioned as defendant no.3 but later on amalgamated with defendant no.2, hence deleted). The defendant no.3 (earlier mentioned as defendant no.4 before filing of amended of parties) namely Audi Gurgaon was engaged in business of promotion and sales of motor vehicles. ICICI Lombard General Insurance Company Ltd (earlier mentioned as defendant no.5 before filing of amended memo of parties) was an insurance company through which plaintiffs had insured their vehicle i.e. Audi A4 2.0 TDI, CS No.208327/16 (Old No.21353/2014) Page 2 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors bearing registration no.DL-3CBM-2379 through policy no.61349764 (renewed in 11.10.2012). Defendant no.5 was also deleted vide order dated 04.10.2018.
3. Plaintiff no.1 intended to purchase an Audi A4 2.0. The plaintiff no.2 met the representatives of defendant no.3 who provided information to him regarding the said Audi car and plaintiff no.1 booked the said car for the use of plaintiff no.2 and purchased the same on 19.08.2009 on making a payment of Rs.28,94,900/- and got the same registered. The said car/vehicle was got insured on 11.10.2012 through ICICI Lombard General Insurance Company Ltd for Rs.40,001/- and same was got renewed for the period 07.10.2012 till 06.10.2013.
4. On 02.09.2013, plaintiff no.2 and 3 were travelling in the said car driven by driver namely Mr. Virender. Plaintiff no.2 got down at venue of the meeting and plaintiff no.3 proceeded in the said car. While the said car was being driven, plaintiff no.3 noticed a passerby frantically waving his hands around pointing towards the front of the vehicle. Vehicle was stopped at the side of the road and the driver stepped out to examine the front of the vehicle. Plaintiff no.3 after waiting few second stepped out of the vehicle with her hand bag and approached the driver. As soon as she stepped out of the vehicle, the flames burst around the headlight. The doors were got auto-locked before she could take out her other belongings. The driver immediately pushed the plaintiff no.3 away and within few seconds, entire vehicle blew up in flames.
5. Plaintiff further stated in the plaint that if the driver and plaintiff no.3 CS No.208327/16 (Old No.21353/2014) Page 3 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors would have been stuck in the car as it got auto-locked, they would have perished in the said vehicle itself. The plaintiff no.3 is mother of two children and driver namely Virender is the sole bread earner of his family. Plaintiff no.3 called her husband i.e. plaintiff no.2 who rushed to the spot. They informed the insurance company. Plaintiff no.2 contacted the senior officials of defendant no.3 Audi Gurgaon several times but there was no response. On 02.09.2014, defendant no.3 approached the plaintiff and took away the car and suggested to file insurance claim.
6. Plaintiff no.2 filed his claims before the insurance company and requested to find out the actual cause of the fire. The plaintiffs were assured that the best possible support would be extended from the defendant no.2 Skoda Auto Volkswagen India P. Ltd and defendant no.3 Audi Gurgaon. Plaintiff no.2 sent several e-mails to defendant no.3 Audi Gurgaon for the status report but they kept on delaying. After much follow up, defendant no.3 Audi Gurgaon finally reverted and washed off its responsibilities stating that incident did not take place because of any manufacturing defect. The fire had occurred due to malfunction in the electronic components of the front left fog light. According to them, the fire was caused because of an exceptional incident due to external factors but no external factors were mentioned. Accepting the fault on their part, defendant no.3 Audi Gurgaon offered replacement of car Audi-6 bearing registration no.HR-26BZ-8300 for a period w.e.f 06.09.2013 to 25.11.2013.
7. Plaintiff received an e-mail dated 19.11.2013 from representatives of defendant no.3 stating that the incident is an exceptional one caused due CS No.208327/16 (Old No.21353/2014) Page 4 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors to external factors and defendant no.3 blatantly denied any fault attributable to them and offered a new Audi4 of near similar specification without any liability on them to provide the same. The compensation that had been offered would only amount to Rs.5,00,000/- which was 50% of the difference between cost of new Audi which was Rs.30,00,000/- and insurance value which was Rs.20,00,000/-. The offer was not acceptable to plaintiff no.2 and 3. The defendant no.3 failed to ensure that the car was free from all defects even when the same was sent to the company for its servicing. Defendant no.1 and 2 had failed to comply with the duty cast upon them to meet the quality and safety requirements qua the vehicle. Hence, the present suit was filed by the plaintiffs.
8. Written statement was filed on behalf of all the defendants.
(i) Defendant no.1 stated in his written statement that the suit was not maintainable as the answering defendant did not have any role to play in the matter of claims, calculation and allegations. Defendant no.1 was not even involved in manufacturing, selling or after sale of the said vehicle.
No specific allegations had been made against defendant no.1. He further stated that the present court did not have territorial jurisdiction to try this case as the defendant no.1 was based outside the country. No cause of action was disclosed against defendant no.1 and he was never aware of the sale of the said car to the plaintiff or after sale service history. Defendant no.1 was not even aware of the accident and he had been made a party for extracting money and for harassing him. The said car was manufactured in Aurangabad by defendant no.2 and defendant no.2 used manufacturing facility of defendant no.3 who assembled the different models of Audi. Defendant no.1 was not properly served in CS No.208327/16 (Old No.21353/2014) Page 5 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors compliance with rules and regulations on the services of judicial and extra judicial documents in Civil or Commercial matter. He further stated that the verification of the suit was defective and not in accordance with the provisions of CPC. There was no privity of contract between plaintiff and defendant no.1. The suit was bad for misjoinder of parties and defendant no.1 was not a necessary party. In parawise reply, defendant no.1 denied all the averments made by the plaintiffs.
(ii) Written statement was filed by defendant no.2 and it was stated that plaintiff had already recovered the insurance amount from defendant no.5 on ground of accident. Further, the incident had taken placed after four years of purchase of car. Defendant no.2, 3 and 5 were residents of Maharashtra. Defendant no.1 was a resident of Germany and defendant no.4 (now defendant no.3) was a resident of Gurgaon, Haryana. Hence, the suit was barred by territorial jurisdiction. The allegations made with respect to providing a defective car were also and malafide and there was no expert report stating the same. In fact, the fire was caused due to plaintiffs own negligence and mishandling. Plaintiffs were trying to give an accident a colour of manufacturing defect and that too after availing insurance benefits towards accidental damage to the car. The plaintiffs had not come with clean hands to the court. In parawise reply, defendant no.2 denied all the averments made by the plaintiffs. Defendant no.2 further explained that it was the sales company providing customers a warrant of certain period on the vehicle sold upon certain terms and conditions and not defendant no.2. The car had already run 88628 km and no manufacturing defect was made out. The car caught fire due to plaintiffs own mishandling and not any mechanical or technical failure as no complaint had ever been made in the four years when the car was CS No.208327/16 (Old No.21353/2014) Page 6 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors being used. The money that was recovered from the insurance was also on the ground of accidental damage and not manufacturing defect. In fact, defendant no.2 as a goodwill gesture had even offered a new Audi Car with a discount of Rs.5,00,000/- which was 50% of the difference between cost of new Audi which was Rs.30,00,000/- and insurance value which was Rs.20,00,000/-. The car had also been reported for accidental repairs prior to the alleged incident dated 09.02.2013.
(iii) Written statement was filed on behalf of defendant no.5 who was later on deleted from the array of defendants. Hence, the averments of written statement of defendant no.5 are not being considered.
(iv) Defendant no.3 was deleted from the array of defendants vide order dated 19.03.2018.
(iv) Defendant no.4 Audi Gurgaon also filed written statement wherein all the allegations were denied and it was stated that plaintiff was guilty of suppression, misrepresentation and misleading the court. They had approached the court with unclean hands and material facts had been suppressed. There was no cause of action against defendant no.4 and the suit was devoid of merits. In parawise reply, defendant no.1 denied all the averments made by the plaintiffs.
9. Plaintiff filed replication to the written statements of defendants controverting the stand taken by them in their written statement and reiterated the facts of his plaint.
10.From the pleadings of the parties, following issues were framed vide order dated 09.01.2019:-
1.Whether there was a manufacturing defect in the car AUDI A4 2.0 TDI CS No.208327/16 (Old No.21353/2014) Page 7 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors having registration no.DL3CBM2379? If yes, its effect? OPP.
2. Whether there is no liability of defendant no. 1 and it is a unnecessary party? OPD1.
3.Whether this court does not have the territorial jurisdiction to entertain the present suit? OPD1.
4.Whether the plaintiffs are estopped to recover the suit amount on account of insurance claim? OPD5.
5.Whether there was any contributory negligence of the plaintiff? If yes, its effect? OPD2.
6.Whether the plaintiff is entitled to damages of Rs.1 crore as prayed in clause I ? OPP
7.Whether the plaintiff is entitled to any what rate and interest? If yes, at for which period? OPP
8. Relief.
11.Thereafter, matter was listed for plaintiff evidence. Both the parties consented to get the evidence conducted through Local Commissioner.
12.During the plaintiff evidence, plaintiff examined Sameera Agrawal as PW1 who tendered her affidavit in evidence as Ex.PW1/A. She relied upon the documents as under :-
1) Ex.PW1/1 (colly), set of original photographs.
PW1 stated in her examination in chief on affidavit that she was the wife of plaintiff no.2 and plaintiff no.1 which was the company belonging to her husband booked the car for the use of her husband and for use by company on payment of Rs.28,94,900/- on 19.08.2009. The vehicle was got registered on 09.09.2009.
CS No.208327/16 (Old No.21353/2014) Page 8 of 28Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors On 02.09.2013, at around 07.25 pm when the driver Virender was driving the vehicle, fumes coming out of the vehicle were noticed by passerby who raised alarm. The plaintiff no.3 and the driver came out of the car and within few minutes, the fumes increased and turned into flames which started engulfing the entire vehicle. In no time, the entire vehicle blew up in the flames. PW1 was traumatized by the incident and called her husband who rushed to the site. The witness stated that without any external triggering factor the car had caught fire which clearly indicates a case of manufacturing defect. Witness was so shaken up by the incident that she faced sleepless nights and did not sit in any vehicle for two months. She faced immense trauma due to the near death experience faced by her and also had severe depression due to the above incident.
In her cross examination, she stated that the car was purchased by the company and any Director of the company could have used the same. During the said period, her husband i.e. plaintiff no.2 was using the car. She further stated that the car was not owned by any individual as such. She further stated that her husband was Director of the company and she was not related to the company in any capacity. On being specifically asked, she stated that she could not tell for how long the driver was serving the company on the date of the accident. She further stated that she was not aware as to who lodged the insurance claim and that whether she had signed any document pertaining to insurance or not. On being shown the motor insurance claim form, witness admitted that in the " details of accident", she had mentioned the details as demanded by the company. She denied that the use of car by her was unauthorized or impermissible as she was not using the vehicle CS No.208327/16 (Old No.21353/2014) Page 9 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors for company purposes. She stated that there was a lady near Chhatarpur Metro Station who waved her hand to indicate something to them. She stated that the said lady was about her age. She further clarified that the passerby was a lady and the mention of 'He' instead of 'She' was a typographical mistake. She denied that she was making false statements deliberately to make out a case which never existed. She denied that the car had met with a few accidents prior to the date of incident but she stated that there had been one accident soon after it was bought. She denied that the car was driven rashly or negligently and that it had met quite a few accidents before the date of the incident. She had never personally visited the service station when the car was sent for routine or other repairs. She stated that she was not aware about automobiles. On being questioned regarding external triggering factor, she stated that " car banging up on something or some object thrown at the car or car running over some objects or something falling on the car ". She admitted that the car had been in use for about four years but she could not tell as to how many kilometers it had run before the incident.
She was shown the tax invoice dated 02.02.2013 as per which the car had run 79058 km and as per Ex.D1. The car had run 88628 km before the date of incident. She stated that the front of the car got fire first but she could not tell whether the passenger cabin of the car was burnt or not. She could only tell from where she was standing that the entire car was on fire. Qua manufacturing defect she stated that there was no reason for a moving car to have caught fire but for a manufacturing defect. She admitted that insurance company had settled the claim for the vehicle. She denied that she had not suffered any trauma or depression due to the incident. She also denied that there was no manufacturing CS No.208327/16 (Old No.21353/2014) Page 10 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors defect or that the suit had been filed for unjust enrichment at the cost of the defendants.
13.Thereafter, plaintiff examined PW2 Ajay Agrawal who tendered his affidavit in evidence as Ex.PW2/A. He relied upon the documents as under :-
1) Insurance paper dated 11.10.2012, Ex.PW2/1.
2) Tax Invoice for purchase of vehicle, Ex.PW2/2.
3) RC of the car, Ex.PW2/3.
4) Insurance policy for the period w.e.f 07.10.2012 to 06.10.2013, Ex.PW2/4.
5) Computer generated copy of e-mail dt.10.10.2013, Ex.PW2/5.
6) Computer generated copy of e-mail dt.16.10.2013, Ex.PW2/6.
7) Computer generated copy of e-mail dt.26.10.2013, Ex.PW2/7.
8) Computer generated copy of e-mail dt.28.10.2013, Ex.PW2/8.
9) Computer generated copy of e-mail dt.05.11.2013, Ex.PW2/9.
10) Computer generated copy of e-mail dt.12.11.2013, Ex.PW2/10.
11) Computer generated copy of e-mail dt.19.11.2013, Ex.PW2/11.
12) Tax Invoices from 24.11.2012 to 02.02.2013, Ex.PW2/12 (colly).
PW2 in his cross examination stated that he was an MBA by qualification. However, he had no certification in Automobile Engineering. He was a director in the plaintiff no.1 company and also the AR in the present suit. He stated that the car was purchased for him as he was a Director in M/s Conscient Infrastructure Pvt Ltd but he could not tell if the car was for official use only. He admitted that there was no specific averments to the effect that M/s Conscient Infrustructure Pvt Ltd was the holding company of Ms/ Massorie Himalaya Resorts Pvt Ltd and CS No.208327/16 (Old No.21353/2014) Page 11 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors further stated that it was a standard practice for holding companies to have several subsidiary companies and to book expenses through such companies. He also admitted that the fact of car catching fire was narrated to him by his wife. He admitted that the driver was an employee of M/s Conscient Infrastructure Pvt Ltd and not the plaintiff company. He was at his office in Gurgaon when he received the call regarding the incident at 08.00 pm and he reached the spot at around 08.30 to 08.45 pm. He immediately made a call to defendant no.3/dealer at around 09.00 pm. They were surprised to hear about the incident and advised him to inform the insurance company immediately. The Senior Accountant who was looking after the insurance matters kept informing him about the development in his claim case and he finally received the claim in December 2013/January 2014. He admitted that he had not stated anything about receiving the insurance claim in his plaint. Witness was confronted with his replication wherein he had denied recovering the insurance claim. He stated that the same was an inadvertent error. He further stated that no sum of money had been disbursed by defendant no.5 towards insurance claims to the plaintiff.
He admitted that there was no medical record or prescription filed by the plaintiff. He had never personally visited the service station with his car for repair and maintenance. The representative of defendant no.3 used to collect the car from his residence for routine repair and maintenance and deliver the same back. The representative of defendant no.3 used to get the signature of plaintiff on a challan. On being asked whether the car had ever met with an accident, the witness answered that the car had met with few accidents and one particular accident was more then a minor accident and otherwise the car had gone for routine repair CS No.208327/16 (Old No.21353/2014) Page 12 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors work only. He described the said accident stating that once when he was going to his office in Gurgaon, someone had hit the car from the back which had caused some damage and the car had to be sent for repair. The said incident took place within one to two years of the purchase of the car. He stated that he could not tell how many people used to drive the car but his wife used to drive the same vehicle. He admitted that there could be more then one driver who used to drive the car but it was very occasional. He admitted that the complete insurance record had not been filed by the plaintiff but he denied that the same was done to conceal the accident history of the vehicle. For the same reason, all the repair and maintenance work papers were not brought on record.
He admitted that from the date of purchase till the incident, there had been no allegation of manufacturing defect raised by the plaintiff with any person or company. He further stated that the claim was settled on total loss basis.
On being asked about the survey report, the witness stated that plaintiff no.1 company asked several times for a survey report from defendant no.5 which was not forthcoming. Defendant no.3 assured the plaintiff no.1 that they would give a complete report but no report was ever provided.
In his further cross examination he further stated that the entire incident was narrated to him by his wife and later on by his driver. He stated that no application for seeking the survey report was made by the plaintiff but he denied that no serious efforts were made by him. He stated that he had mentioned about the mental trauma and harassment suffered by his wife due to accident.
He also admitted that as per tax invoice dated 04.12.2009, the CS No.208327/16 (Old No.21353/2014) Page 13 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors car had been reported for 'accidental repairs'. He denied that he wanted to replace his Audi A4 with Audi A6 with limited contribution of Rs.20 lacs only. He denied that car was ever driven rashly or negligently. He denied that there was no manufacturing defect in the car or that he had filed the claim for unjust enrichment at the cost of the defendant.
14.No other witness was examined by plaintiff in support of his case and plaintiff's evidence was closed vide order dated 07.11.2017 and matter was listed for defendant's evidence.
15.In defendant's evidence, defendant no.1 examined Salil Date as DW1. He exhibited his special power of attorney as Ex.DW1/1. He stated in his affidavit that he was the Assistant General Manager (Legal) with defendant no.2 and he had SPA in his favour dated 22.09.2017. Defendant no.1 was involved in sale of cars in India, while defendant no.2 dealt in marketing and service of Audi vehicle. The car was sold by defendant no.2 through its authorized dealer to plaintiff so no issue of the plaintiff could be attributed to defendant no.1. Defendant no.1 was not involved in any transaction at any point of time and was made a party only to extort money. No proper service was made on defendant no.1 as the company was based in Germany.
DW1 was duly cross-examined by counsel for plaintiff. Witness stated that he had signed his affidavit in Mumbai before the Notary Public. He was working with defendant no.2 since 11.10.2011 and was not aware of the incident which occurred on 02.09.2013. He stated that Volkswagon Group India Pvt Ltd and Skoda Auto India Pvt Ltd had amalgamated into Volkswagon India Pvt Ltd and had adopted a CS No.208327/16 (Old No.21353/2014) Page 14 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors new name Skoda Auto Volkswagon India Pvt Ltd. The SPA had been executed by Dr. Kissling and Dr. Dirkmann who were a part of legal team of defendant no.1 company in Germany. The SPA was signed in Germany which was executed on Indian stamp paper. There was only a contractual relationship between defendant no.1 and defendant no.2. At the time of the incident, defendant no.2 paid to defendant no.1 for fully imported cars that was sold by defendant no.2. The parts of the vehicle were imported and not manufactured by Skoda. He stated that defendant no.1 did not conduct any audit of defendant no.2. He denied that defendant no.1 was liable to any damages or compensation.
16.Defendant no.2 examined Vikesh Sharma as DW2, who was the General Manager / Field Technical Service with defendant no.2. He stated that he had technical expertise on the engineering and functionality aspects of the matter due to his qualification and work experience. He stated that he had gone to Germany for gaining knowledge about engineering aspects of Audi Cars and during his experience, he had handled several accidental car cases for fact finding. Subsequent to the present incident on 03.09.2013, he had personally visited the workshop of the dealer to see the car. He further stated that the car had passed through stringent quality and safety tests and as per high quality requirements and safety standards and only thereafter the car was delivered to the authorized dealer. He also stated that defendant no.1 did not have any role to play qua the alleged claims. He further stated that defendant no.2 was not a manufacturer but a sales company providing customers a warrant of certain period through the dealer upon certain terms and conditions.
The car was being used by the plaintiff since four years CS No.208327/16 (Old No.21353/2014) Page 15 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors without any complaint prior to the date of incident. The car had already run 88628 kilometers since the date of its purchase and it had been reported to the workshop several times for routine maintenance as well as accidental repairs. He stated that the car was driven rashly and negligently and had met several accidents a number of times in a short span of time. He further submitted that the fire incident dated 02.09.2013 was also due to mishandling and negligence towards the vehicle. After the car was reported to the workshop prompt services were provided to the plaintiffs. The witness had connected the diagnostic tester with the car and found out from the log sheet report that first fault was reported at 07.50 pm from the side of front left fog bulb of the car due to some external impact. Repair order was opened and plaintiffs were advised to approach the insurance company. Plaintiffs filed the insurance claim with defendant no.5. Witness also checked the car manually for any traces of short circuit due to internal reasons which was alleged by the plaintiff but nothing was found in the log sheet report which was personally analyzed and scrutinized. The electrical system was also functioning properly and cause of fire was external reasons only. Plaintiffs recovered insurance amount from defendant no.5 on total loss basis and now they were trying to extract money from the other defendants on the ground of manufacturing defect. The incident of 02.09.2013 was also because of plaintiffs negligence and rash driving. Plaintiffs were giving an incident of fire a colour of manufacturing defect after availing insurance benefit.
Witness relied upon the documents as under:-
i) Affidavit, Ex.DW2/A.
ii) Original copy of warranty policy, Ex.DW2/1.
iii) Copy of service report dated 03.09.2013, Ex.DW2/2.CS No.208327/16 (Old No.21353/2014) Page 16 of 28
Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors
iv) Copy of vehicle repair history, Ex.DW2/3.
v) Copy of insurance claim, Ex.DW2/4.
vi) Copy of letter dated 19.12.2013, Ex.DW2/5.
vii) Copy of e-mail dated 06.01.2014, Ex.DW2/6.
viii) Copy of e-mail dated 07.01.2014, Ex.DW2/7.
DW2 was duly cross-examined by counsel for plaintiff and witness stated that he was working with Audi India and Head Office of the company was in Mumbai. He was working with Gurgaon regional office at the time of incident. He stated that he had gone to Germany to learn about the Engineering aspects of Audi Car from 04.02.2013 to 30.04.2013. As to who manufactured the parts of the cars, he stated that almost 99% parts were manufactured out of India. He stated that Director no.2 was directly responsible for any manufacturing defect in Audi vehicle sold in India. There was a contract between defendant no.1 and defendant no.3 when defendant no.3 was appointed as authorized dealer of Audi Car. He stated that in case of any problem with the customers, it was a combined responsibility of defendant no.2 and 3. He further stated that defendant no.1 was not informed about the incident as it was an accidental issue and not a technical one. He stated that defendant no.2 was not directly involved with the service and repair of the vehicle and defendant no.2 did not have access also to the record of defendant no.3 company. On being asked as to how he was stating that the vehicle had been mishandeled by the plaintiff and had met with accident a number of times, he answered that he had checked the vehicle service history and found out that the vehicle had met with an accident five times in four years and all those accidents occurred from the front side of the vehicle. He pointed to Ex.DW2/3 to substantiate the same. He stated that DW2/3 CS No.208327/16 (Old No.21353/2014) Page 17 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors was a system generated document but he could not bring any proof of the same. He mentioned the dates when the accidental repair was done on 19.09.2009, 04.12.2009 and 18.01.2011. He further stated that 28.01.2010 could also be called an accidental repair as body paint was undertaken on the said dates.
Witness also named one person Ishteyaque Ahmad as representative of defendant no.3 who was told by the representative of the plaintiff that before causing fire in the car it had met with minor front impact resulting in short circuit of wiring at fog lamp area due to external impact. He admitted that the said statement was a hearsay statement but denied that it was a false statement to cover up the liability of the defendant. He admitted that defendant had not placed the insurance survey report on record but denied that no independent survey report was ever prepared. He admitted that there was no document on record to show that plaintiffs asked for a new Audi A6 as replacement of Audi A4 while limiting the plaintiffs contribution to Rs.20 lacs only which was denied by the defendant. He denied that the cause of fire was a manufacturing defect and not an accident caused by the plaintiff prior to the incident.
17.No other witness was examined by defendants in support of their case and defendant's evidence was closed and matter was listed for final arguments.
18.Final arguments were addressed by the counsel for both the parties and written submissions were also filed by the counsels for the parties in support of their respective submissions.
CS No.208327/16 (Old No.21353/2014) Page 18 of 28Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors
19.I have gone through the documents placed on record and perused the evidence of the parties and file carefully.
20.My Issue-wise findings are as follows:
I shall decide the issue no.1, 6 and 7 together as they are inter connected which are as under :-
1.Whether there was a manufacturing defect in the car AUDI A4 2.0 TDI having registration no.DL3CBM2379? If yes, its effect? OPP.
6.Whether the plaintiff is entitled to damages of Rs.1 crore as prayed in clause I ? OPP
7.Whether the plaintiff is entitled to any what rate and interest? If yes, at for which period? OPP The onus to prove these issues was upon the plaintiffs.
The plaintiffs had to prove if there was any manufacturing defect in the vehicle in order to make defendant no.1 and 2 liable for damages. It is pertinent to mention that car was purchased in the year 2009 and till then it had run about 88628 kilometer till the date of incident on 02.09.2013 which fact has not been denied by the plaintiffs. The main defence of the defendant is that the vehicle from the time of purchase was misused and manhandled and that there was no evidence placed by the plaintiff on record to show any manufacturing defect. Ex.DW2/1 which is the warranty of the car specifically reads that the warranty was for two years for unlimited kilometer and it covered (I) defects in manufacturer's material or workmanship, (ii) defects in manufacturer's material for Genuine Audi parts and (iii) defects in manufacturer's material for Genuine Audi Accessories, amongst other CS No.208327/16 (Old No.21353/2014) Page 19 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors warranties. The exclusion specifically contained damages or malfunction caused by accident among other things. Exclusions also included compensation of vehicle severally damaged and declared to be total loss by the insurer. Therefore, even if the car would have been covered under warranty, the case of the plaintiff would not have been maintainable as the plaintiff has not been able to prove the manufacturing defect by any cogent evidence or an expert report. The documents filed by the defendant have been admitted by the plaintiff in admission/denial affidavit which includes the service report dated 03.09.2013 which is Ex.DW2/2, insurance claim form filled by the plaintiff which is Ex.DW2/4, letter dated 19.12.2013 issued by the plaintiff to insurance company towards full and final claim which is Ex.DW2/5, e-mail dated 06.01.2014 addressed by the insurance company which is Ex.DW2/6 and e-mail dated 07.01.2014 which is Ex.DW2/7.
As the plaintiff has throughout claimed that there was manufacturing defect and hence the accident took place due to the same, the burden of proof to establish this facts lies upon the plaintiffs who assert the existence of a particular state of things on the basis of which he claims relief. Section 101 of the evidence act defines the burden of proof. It states that the burden of proof lies on the person who wants the court to give judgment based upon the facts they assert which means that whoever desires the court to give a judgment as to any legal right or liability, depending upon the existence of facts which he asserts, must prove that those facts exists. The weakness of the defence hence cannot be a justification to decree the suit.
The suit of the plaintiff must also stand on its own legs. In Ganpat Lal Vs Nandlal Haswani AIR 1998 MP 209 and Harish CS No.208327/16 (Old No.21353/2014) Page 20 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors Mansukhani Vs Ashok Jain 2009 (109) DRJ 126 (DD), it was held that the onus to prove the case is upon the plaintiff. It is an elementary rule of civil litigation that the plaintiffs have to prove their case and he cannot be entitled to a decree merely because the defendants failed to lead their evidence or for any other reason. Similar proposition has been held in case title Smriti Debbarma (dead) Vs Prabha Ranjan Debbarma & Ors 2023 SCC Online SC 9. The plaintiff has not placed on record any survey report which could show that there was any manufacturing defect in the car. In the cross examination conducted of plaintiff no.2., on being asked about the survey report, he stated that plaintiff no.1 company asked several times for a survey report from defendant no.5 which was not forthcoming. Defendant no.3 assured the plaintiff no.1 that they would give a complete report but no report was ever provided. He stated that no application for seeking the survey report was made by the plaintiff.
Defendant's witness also admitted that defendant had not placed the insurance survey report on record but denied that no independent survey report was ever prepared. In the case decided by Learned Delhi State Consumer Disputes Redressal Commission in case title Mr. Gaurang Kanth Vs South End Honda & Ors, wherein learned Commission has referred to the case title M/s Reliance General Insurance Company Ltd Vs Dr. Anish Sebastian Prathibham (supra).
59. The learned District Forum has rightly opined while discussing the case titled Tata Motors Vs Rajesh Tyagi & Ors (supra) that the onus to prove manufacturing defect in the vehicle was on the appellant/complainant and same should be proved by expert evidence and in absence of which no liability can be attributed to the manufacturer CS No.208327/16 (Old No.21353/2014) Page 21 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors and to compensate the complainant.
The case of Classic Automobiles Vs Lila Nand Mishra and Anr I (2010) CPJ 235 (NC) has also been referred in this para, wherein it has been stated that the onus to prove the manufacturing defect was on the complainant and it is necessary to obtain expert opinion before saying that there was manufacturing defect.
Regarding Classic Automobiles Vs. Hira Nand Mishra & Anr (supra) in that case car was brought for repairs/rectifications repeatedly within the warranty period which shows that there was a manufacturing defect. Manufacturing defect would be a defect without which the car cannot function. There was no complaint regarding the functioning of the engine of the car.
It is clear from the record that plaintiff never made any effort to pursue the survey report in order to prove that there was manufacturing defect which he has been arguing from the inception of the suit. No e-mails or applications have been placed on record by the plaintiff to show his diligence in pursuing the procuring of the survey report.
DW2 in fact appeared as witness of the defendant stating that he had inspected the car on the next day of the incident and connected the diagnostic tester which showed that the fault had occurred on the front left fog bulb due to external factors. Plaintiff could not rebutt the statement of DW2, hence his claim qua manufacturing defect stands not proved.
The defendant has all the time claimed that the car was driven rashly and negligently and met number of accidents prior to the date of incident. It is argued that the fire incident also took place due to the CS No.208327/16 (Old No.21353/2014) Page 22 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors mishandling and negligence of the plaintiff. The plaintiff over a period of four years never made any allegation regarding manufacturing defect. The plaintiffs have for the first time raised issue of manufacturing defect after the fire incident which took place because of the plaintiffs mishandling the vehicle.
It is also pertinent to mention here that PW1 Ms. Sameera Agrawal during her cross examination dated 11.03.2019 has admitted that the subject car had met few accidents prior to the date of incident. She further stated that the car had met with an accident soon after it was bought. The vehicle repair history of the subject car i.e. Ex.DW2/3 clearly reveals that the car had met with accidents regularly which is shown in serial number 2 dated 19.09.2009, serial number 4 dated 04.12.2009, serial number 13 dated 18.01.2011 of the said document.
The plaintiff has thus not been able to show that there was a manufacturing defect in the car due to which incident took place rather the court has no hesitation in believing that the car had been mishandled on number of occasions prior to the incident and the present incident could have also happened due to an accident. The documents Ex.DW2/2 also mentions the repair done on the vehicle on 03.09.2013 by Zenika Cars India Pvt Ltd as "accidental repair". Hence, the plaintiff has not been able to show that there was a manufacturing defect in the car AUDI A4 2.0 TDI having registration no.DL3CBM2379.
Accordingly, the issues no.1 stands decided in favour of the defendants and against the plaintiffs.
21.As far as the 2nd issue of damages is concerned, the damages can be loss of earnings, property damages and medical expenses. The damages can CS No.208327/16 (Old No.21353/2014) Page 23 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors be non economic also such as pain and suffering and emotional distress. The plaintiff has miserably failed to prove any loss sustained by them due to the fault of the defendants. There has obviously been no loss of earning and property damages cannot be attributed to the defendants and medical expenses has not been brought on record by the plaintiffs. The plaintiffs have not been able to show that the incident was attributable to defendant no.1 and 2 or their representative.
The plaintiffs have also prayed for seeking damages for mentally agony and trauma but has failed to provide any medical record to show if any mental injury or trauma was caused to them due to the incident. He has already been paid the insurance claim for the damage to the vehicle. Hence, in the present circumstances from the material available on record, the plaintiff has miserably failed to prove any losses caused to them, pecuniary or otherwise. Hence, the issue of damages also stands decided against the plaintiff and in favour of the defendants. The issue no.6 stands decided against the plaintiffs and in favour of the defendants.
As no damages are ordered in favour of the plaintiff, hence, there is no question of interest accruing to the plaintiff. Accordingly, issue no.7 also stands decided against the plaintiff.
22.Now, I shall decide the issue no.2 which is as under :-
2. Whether there is no liability of defendant no.1 and it is a unnecessary party? OPD1.
The defendant no.1 in his written statement has stated that there was no privity of contract between plaintiff and defendant no.1. However, it is an admitted fact that defendant no.1 was a German CS No.208327/16 (Old No.21353/2014) Page 24 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors Automobile manufacturer which designs, engineers, produces, markets and distributes automobile parts worldwide and has also production facility spread worldwide. It is also admitted by defendant no.1 and 2 that cars are assembled in India but 99% of the parts are imported from outside India. As of now, as the court has decided the issue no.1, 6 and 7 in favour of the defendants, hence, no purpose shall be served to delve into the question of defendant no.1 being a necessary party or not. If the court would have decided the issue no.1, 6 and 7 to the contrary as already decided, than the liability of the defendant no.1 would have been an important issue to be decided by the court. Therefore, the court is not inclined to make any observations as to the liability of defendant no.1 as no liability has been attached upon any of the defendants.
23.Now, I shall decide the issue no.3 which is as under :-
3.Whether this court does not have the territorial jurisdiction to entertain the present suit? OPD1.
As far as this issue is concerned, the incident of fire took place on 02.09.2013 near Chhattarpur Metro Station, Mehrauli which has led to the filing of the present suit. After the fire incident, the defendant towed away the car from Chhattarpur Metro Station at Mehrauli and took it to their workshop.
The terms of Section 20(c) of CPC, the court where cause of action wholly or in part arises, will have territorial jurisdiction. In the present case, the entire cause of action which has led to the filing of the present suit has arisen in Chhatarpur Metro Station, at Mehrauli which falls within the territorial jurisdiction of this Court. Therefore, the present issue stands decided in favour of the plaintiffs and against the CS No.208327/16 (Old No.21353/2014) Page 25 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors defendants.
24.Now, I shall decide the issue no.4 which is as under :-
4.Whether the plaintiffs are estopped to recover the suit amount on account of insurance claim? OPD5.
The onus to prove this issue is upon the defendant no.5. Although, the defendant no.5 i.e. insurance company has been deleted from the array of defendants vide order dated 04.10.2018. It is an admitted fact the plaintiff recovered Rs.14,68,000/- from the defendant no.5 for accidental damages. The plaintiffs had sent a letter dated 19.12.2013 to defendant no.5 stating that the vehicle had met with an accident on 02.09.2013 and also specifically stated that " I wish to convey my willingness and agreement with respect to the full and final assessment of the vehicle towards the claim no.MOTO3303956 lodge with your company for an amount of Rs.19,25,000/-. I would like to confirm that I will not claim/demand any amount further to a payment of Rs.14,68,000/- with regards to our claim no.MOTO3303956 of Massorie Himalayan Resorts Pvt Ltd full and final settlement of vehicle registration no.DL3CBM2379 has been done as a SCRAP".
The predecessor court also noticed in its order dated 04.10.2018 that Rs.14,68,000/- were paid to the plaintiff by defendant no.5 in December 2013. The court further noted that as the plaintiffs had already received the amount, there was no occasion for it to implead the insurer as a party but at the same time there was no estoppel to recover the amount for damages caused to the plaintiff from the other defendants on account of any manufacturing defect if the same was proved by the plaintiffs. Although, the plaintiffs have not been able to prove any CS No.208327/16 (Old No.21353/2014) Page 26 of 28 Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors damages but in case they were able to do so, there was no estoppel upon them to recover the amount even if they had received the claim amount from the insurance company. Hence, this issue is accordingly stands decided in favour of plaintiffs and against the defendant.
25.The only issue remains to be decided is issue no.5, which is as under :-
5.Whether there was any contributory negligence of the plaintiff? If yes, its effect? OPD2.
It is an admitted fact that there has been several accidents of the vehicle prior to the incident of 02.09.2013 but whether they contributed to the happening of fire incident or not, has not been proved by the defendant. Merely making a bald averment to the fact that the vehicle was mishandled or driven negligently does not go to show that there was any contributory negligence on the part of the plaintiff in the incident of 02.09.2013. Just like, the plaintiffs have not been able to prove any manufacturing defect, similarly, the defendants have not been able to show contributory negligence on part of the plaintiffs. Even if the incident took place due to accident, whether the accident was due to the fault of the plaintiff or a third party has also not been proved. Hence, contributory negligence cannot be attributed to the plaintiffs as stated by the defendant.
In view of the above, issue no.5 also stands decided in favour of the plaintiff and against the defendant.
26.Relief.
In view of the above findings, suit of the plaintiff stands dismissed.
CS No.208327/16 (Old No.21353/2014) Page 27 of 28Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors
27.Both the parties to bear their own cost. Decree sheet be prepared accordingly.
28.File be consigned to Record Room after due compliance. Digitally signed
by PURVA
PURVA SAREEN
Date:
SAREEN 2024.09.09
13:01:13
Announced in open court (Purva Sareen)
+0530
On 3rd September, 2024 District Judge-01, South,
Saket District Courts,
New Delhi
CS No.208327/16 (Old No.21353/2014) Page 28 of 28
Massorie Himalayan Resorts Pvt Ltd & Ors Vs Audi AG & Ors