State Consumer Disputes Redressal Commission
Hyundai Motor India Limited vs Jagpal Singh And Anr. on 11 May, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1424 of 2013
Date of Institution: 23.12.2013
Date of Decision: 11.05.2016
Hyundai Motor India Limited, Plot No.H-1, SIPCOT, Industrial Park,
Irrungattukattai Sriperumbudar Taluk, Kancheepuram District,
Tamilnadu 602105 through its Authorized representative.
Appellant/Opposite party no.2
Versus
1. Jagpal Singh S/o Saun Singh, village Khizarpur, P.S
Chamkaur Sahib, Tehsil Chamkaur Sahib, District Roopnagar.
Respondent no.1/Complainant
2. Bhakra Service Station Pvt. Ltd., Kurali Road NH 21 Near Toll
Barrier, District Ruppnagar.
Respondent no.2/Opposite party no.1
First Appeal against order dated
06.09.2013 passed by the District
Consumer Disputes Redressal Forum,
Ropar
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri.J.S Gill, Member Present:-
For the appellant : Sh.Amit Gupta, Advocate
For the respondent no.1 : Sh. MS. Longia, Advocate
For the respondent no.2 : None
............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant of this appeal (opposite party no.2 in the complaint) has directed this appeal against order dated 06.09.2013 of District Forum Ropar, accepting the complaint of the complainant First Appeal No.1424 of 2013 2 against respondent no.2 of this appeal by directing it to pay compensation of Rs.50,000/- to respondent no.1 of this appeal for mental harassment. The appellant of this appeal is opposite party no.2 in the complaint and respondent no.1 of this appeal is the complainant in the complaint and respondent no.2 of this appeal is opposite party no.1 in the complaint and they be referred as such hereinafter for the sake of convenience.
2. The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he purchased a Varna 1.4 EX Car bearing registration no. PB-12M-0434 from M/s Bhakra Service Station Pvt. Limited/OP no.1 for Rs.9,20,128/- on 20.06.2012. OP no.2 M/s Hyundai Motors India Limited is the manufacturer of the car and OP no.1 Bhakhra Service Station is authorized dealer of the car. The car purchased by the complainant was equipped with air bag supplemental restraint system, which did means that the car was having safety devises i.e. a driver front air bag, passenger front air bag, side air bag and curtain air bag. As per assurance given by OPs, the air bag is to inflate in collision in order to help, protect the occupants from serious physical injuries and no speed limit was prescribed. The air bags were designed to inflate based upon severity of collision and its directions. On 18.08.2012 at about 5.30; am the complainant accompanied by his son Manjinder Singh, daughter Mandeep Kaur and Sukhwinder Singh son of his sister-in- law were proceeding from airport to their village Khizarpur. The car First Appeal No.1424 of 2013 3 in question was being driven with due care and caution. When they reached away from G.T Road HSIDC Rai District Sonepat, a cow suddenly came in front of the car from right side. Emergency brakes were applied to avoid accident, but the car became out of control and collided with tree from front side and all the occupants received multiple injuries, despite the fact that they were wearing safety belts and they were taken to Parnami Hospital Kundli, where they were medically treated. Number of the car was PB-12R-0506 and FIR, vide NCR No.142/2012 dated 18.08.2012 was lodged under Section 155 Cr.P.C. The complainant hired services of Shiva Crane Services Sonepat by paying Rs.12,500/- to tow the vehicle to OP no.2 Bhakra Service Station Pvt. Ltd. The estimate of the vehicle was got prepared and the repair cost of the vehicle was Rs.9,42,432/-. The complainant and his son received serious injuries on right arm and Mandeep Kaur also received injuries on her left arm. The injuries could have been avoided, if the air bags instantly inflated. The complainant alleged that these injuries being result of defective safety system. OPs indulged in unfair trade practice and sold the vehicle fitted with defective safety system. The air bag system failed to inflate, sensor failed to produce electronic developments, inflate signal and air bag remained in the storage compartment. OP no.1 through the insurance company got the estimate of the car prepared and it was found that defective air bag failed to inflate in accident. The complainant has, thus, filed the complaint directing the OPs to pay Rs. 8 lac as compensation on account of sale of defective Varna First Appeal No.1424 of 2013 4 1.4 EX Car to complainant and further prayed for Rs.50,000/- as compensation for mental harassment and Rs.25,000/- as costs of litigation.
3. Upon notice, OP no.1 filed its separate written reply and contested the complaint of the complainant vehemently. It was averred that complaint is not maintainable in the present form against OP no.1. No cause of action has accrued to complainant against OP no.1. The complainant was denied to be 'consumer' of OP no.1. It was further averred that there is no territorial jurisdiction on the District Forum concern to decide the complaint. It was averred that in 1.4 EX Model of Hyundai Varna Car, there is only one airbag in front of the driver's seat i.e. with the steering. The air bags are supplemental restraint system and not a substitute for seat belts and to maximize the product, one must always wear the seat belt, while travelling in the car. The front air bags are designed to inflate only in severe frontal collision and they are not designed to inflate in any rear impacts, side impacts, rollovers or frontal collision. A strong or head on collision is very much required to bring the air bag into operation. On merits, OP no.1 pleaded that in case of strong frontal collision, the said frontal air bag will work. Other averments of the complainant have been denied by OP no.1 and it prayed for dismissal of the complaint.
4. OP no.2 filed its separate written reply and contested the complaint of the complainant vehemently. It was averred in preliminary objections by OP no.2 that complaint is false and First Appeal No.1424 of 2013 5 frivolous. It was admitted that vehicle met with an accident on 18.08.2012. It was averred that, as per version of the complainant, emergency brake was applied to avoid accident, as a cow suddenly came in front of car from right side and car became out of control and collided with a tree from front side, which resulted in injuries to driver and other passengers of the car and damage to the car. It was averred that driver turned his car towards left and lost control of his car and car in question turned sideways and fell in adjoining ditch and collided with tree sideways. Mr. Kailash Chandra has prepared survey report dated 05.10.2012 in this regard. It was pleaded that car in question was turned and rolled over sideways and complainant claiming frontal collision is an absolute lie in the complaint. It was further averred that the complainant was very much aware of deployment of airbags as OP no.2 provided the complainant with owner's manual and service booklet, wherein function of different parts have been described including functioning of air bags. The front airbags are designed to inflate in a frontal collision depending upon the intensity, speed or angles of impact, from a front collision. The impact on the car should be direct and should meet a predetermined set values of sudden de-acceleration in car movement. SRS is designed to deploy the air bags only when an impact is sufficiently severe and when impact angle is less than 30 degree from the frontal longitudinal axis of the vehicle and would not deploy in rear, side or rollover impacts. Airbags would not deploy in frontal crashes below the deployment threshold speed, all above First Appeal No.1424 of 2013 6 conditions are clearly mentioned in owner's manual. The said vehicle had been reported for free servicing on 31.07.2012 and no problem with respect to the said vehicle was then reported. OP no.2 operates with all its dealers on a principal-to-principal basis and sole responsibility, if any is of the authorized dealer. The complainant got his vehicle insured from Oriental Insurance Company. It was averred that retail sale is strictly inter se of complainant and OP no.1. It was admitted that complainant purchased Verna car, which has only one air bag and which is placed in front of driver's seat. Deployment of air bags depends upon a number of set conditions built into the logic of control unit and it was clearly mentioned in owner's manual, which was provided to the complainant. OP no.2 prayed for dismissal of the complaint.
5. The complainant tendered in evidence, his affidavit Ex.C-1, affidavit of Engineer Shingara Singh Ex.C-10 along with copies of documents Ex.C-2 to Ex.C-9 and Ex.C-11 to Ex.C-27. As against it; OPs tendered in evidence affidavit of Sh. S.K. Chhabra Managing Director Bhakhra Service Station Pvt. Ltd Ex.OP-1 along with copies of documents Ex.OP-2 to Ex.OP-9. On conclusion of evidence and arguments, the District Forum Ropar, accepted the complaint of the complainant by virtue of order dated 06.09.2013. Dissatisfied with the order of the District Forum Ropar dated 06.09.2013, the OP no.2 the present appellant, carried this appeal against the same.
6. We have heard learned counsel for the parties and have also examined the evidence on the record in this case.
First Appeal No.1424 of 2013 7
7. Affidavit of Jagpal Singh Ex.C-1 on the record. This affidavit has proved that he purchased the car in question from OP no.1 for a price of Rs.9,20,128/- on 20.06.2012, which was manufactured by OP no.2 and OP no.1 was the authorized dealer thereof. The car purchased by the complainant was equipped with air bag supplemental restraint system. He further stated that air bag is to inflate instantly in the event of serious frontal air collision in order to help, protect the occupants from serious physical injuries. No speed limit was prescribed. He deposed in his affidavit that accident took place on 18.08.2012 at about 5.30 am, while returning from the airport to their village Khizarpur, where injuries were received by complainant and other passengers of the car in question. He further stated that FIR was lodged at police station Rai District Sonepat, vide NCR No.142/2012 dated 18.08.2012 about this accident. He further deposed that repair cost of the car was Rs.9,42,432/-. He attributed the cause of injury due to non-working of the air bag, when car collided with tree. Ex.C-2 is receipt dated 20.06.2012 for payment of Rs.31,281/- paid by complainant to OP no.1. Ex.C-3 is also receipt dated 20.06.2012 for payment of Rs.9,20,128/- by the complainant to OP no.1. Ex.C-4 is temporary registration certificate of the vehicle. Ex.C-5 is copy of FIR. Ex.C-6 is receipt regarding charges of Rs.12,500/- paid by the complainant to Shiv Crane Service for bringing the vehicle from the spot of accident to the authorized service station of OP no.1. Ex.C-7 is estimate of repair prepared by OP no.1 to the tune of Rs.9,42,432/-. Ex.C-8 is invoice First Appeal No.1424 of 2013 8 cash memo dated 12.09.2012 issued by OP no.1. Ex.C-9 is copy of driving licence of Jagpal Singh complainant. Affidavit of Engineer Shingara Singh purported to be an expert witness examined by complainant is Ex.C-10 on the record. This witness testified in his affidavit that he is B.Sc Engineer and valuer investigator and received degree from Mechanical and Industrial Engineering Punjab University Chandigarh in 1971. He further deposed that he examined the vehicle in this case by duly issuing notice to OPs. He inspected the vehicle at M/s R.M. Motors Roopnagar with the consultation of complainant and OP no.1. He proved that due to heavy impact on right hand side front wheel and front side, the impacts are in front sensor's range, so the driver's air bag must have inflated. He prepared his report Ex.C-11 and found defect in the air bag, which failed to protect the complainant and his family from the injuries. Ex.C-13 is certificate of registration of complainant. Ex.C-14 is literature of with regard to air bag functioning on the record. Ex.C-15 to Ex.C-26 are the photographs of the accidental vehicle. Similarly, we have also examined other documents Ex.C-27 and Ex.C-28 on the record.
8. To refute this evidence, OPs tendered in evidence affidavit of S.K. Chhabra Managing Director Bhakha Service Station Pvt. Ltd Ex.OP-1. This witness denied any deficiency in service on the par of OP no.1. He deposed in his affidavit that there is only one airbag in front of the driver's seat i.e. within the steering. The air bags are supplemental restraint system and not a substitute for seat belts. He First Appeal No.1424 of 2013 9 further stated that the purpose of air bag warning light system in the instrument panel is to alert the occupant of a potential problem with his air bag supplemental restraint system (SRS) when the ignition switch is torn On, the working light, which illuminate for about six seconds, then go Off. He further stated that at the time of accident, emergency brakes were applied and the vehicles turned turtle/rolled down into the ditches. He further stated that complainant has already got approved the claim/compensation from the Oriental Insurance Company, vide letter dated 04.03.2013 issued by the company. Ex.OP-2 is copy of FIR dated 18.08.2012. Ex.OP-3 is retail invoice of the vehicle issued by OP no.12 on 20.06.2012. Ex.OP-4 is operating system of the parts of the vehicle. The air bags are supplemental restraint system and not a substitute for seat belts to maximize the product, one must always wear the seat belt, while travelling in the car. Ex.OP-7 is literature with regard to air bag functioning on the record.
9. The District Forum has recorded the finding in the order that claim of the complainant has been approved by Oriental Insurance Company with regard to damage of the vehicle. Once, there is no denial to this point by the counsel for the OPs before us., hence, the same amount cannot be awarded to the complainant, as it would be unduly enriching the complainant by awarding him compensation on two counts. Report of expert Ex.C-10 remained un-rebutted on the record by the OPs. The report of expert witness Ex.C-10 cannot be discarded by us, because no contrary expert evidence has been First Appeal No.1424 of 2013 10 produced by OPs on the record. Air bags are primarily designed for the safety of passengers. In this case, the complainant's side received injuries. Vide Ex.C-28 amount of Rs.7500/- was paid by the complainant for dressing his wounds from Parnami Ortho & Spine Hospital Kundli Sonepat. There is no rebuttal evidence led by the OPs to this effect on the record. The District Forum paid compensation of Rs.50,000/- to complainant for mental and physical harassment only. The District Forum observed that complainant has already received compensation from Insurance Company for the damage of the vehicle. We find that on account of above damage in the air bag, the complainant's side received injuries and suffered unnecessary physical and mental harassment therein. They also paid the amount to the doctor for dressing his wounds and so on. Consequently, we do not find any ground to interfere with the amount of compensation as determined by the District Forum under challenge in this case. The OPs failed to prove that there was non- compliance of the instructions by the complainant with regard to owner's manual that how the system operates.
10. As a result of our above discussion, the order of the District Forum is affirmed in this appeal by us and resultantly appeal filed by appellant/OP no.2 is ordered to be dismissed.
11. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the complainant by way of crossed cheque/demand draft after the expiry First Appeal No.1424 of 2013 11 of 45 days. Remaining amount shall also be paid to complainant by the appellants, as per order of District Forum within 45 days from receipt of the copy of this order
12. Arguments in this appeal were heard on 06.05.2016 and the order was reserved. Copies of the order be communicated to the parties as per rules.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (J.S GILL) MEMBER May 11, 2016 (ravi) First Appeal No.1424 of 2013 12