State Consumer Disputes Redressal Commission
1.Skoda Auto India Private Ltd. A1/1, ... vs 1.Lt. General (Retd.) D.P. Sehgal Son Of ... on 16 August, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.632 of 2001 Date of Institution: 10.05.2011 Date of Decision: 16.08.2012 1. Skoda Auto India Private Ltd. A1/1, five Star Industrial Estate, Shendra, MIDC, Aurangabad 431201 through Shri Trivikram Guda, Company Secretary. 2. Giriraj Motors Pvt. Ltd. Opposite JMD Pacific Square, Near 32 Milestone, Chander Nagar, Sector 15, Part 2, Gurgaon 122001. Appellants (Ops 1 & 2) Versus 1. Lt. General (Retd.) D.P. Sehgal son of Late Sh. J.R. Sehgal, resident of 708, sector 23, Gurgaon-122017. Respondent (Complainant) 2. Reliance General Insurance Company Ltd., Reliance Center 19, Walchand Hirachand Marg Ballad Estate Mumbai-400001. Second address:- Regional Claims Manager, Reliance General Insurance Company Ltd. Plot No.60, Second Floor, Okhla Industrial Area, Phase III, New Delh-110020. Respondent (OP-3) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: None for appellants. Respondent No.1 - Lt. General D.P. Sehgal (Retd.) in person alongwith Shri Anil Goel, Advocate . Shri Tajinder Joshi, Advocate for respondent No.2. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 14.03.2011 passed by District Consumer Forum, Gurgaon.
The case of the complainant (respondent No.1 herein) as set up before the District Consumer Forum is as under:-
The complainant on the representation of the opposite party No.1 (appellant herein) had purchased Skoda Octavia Model Car on 07.01.2009 bearing registration No.HR-26 AV 9001 under Free Maintenance Scheme for a sum of Rs.10,27,230/- inclusive of insurance, Registration Charges. The complainant was assured that it was a new model car of 2009 but lateron it was found August, 2008 Model. According to the complainant, from the very beginning, the car developed various defects like its Battery was dead just after eight Kms drive but the same was replaced by the opposite parties. In the first month of its purchase, the doors of the car were found loose creating noise while its Boot could not be closed properly beside some other mechanical and A.C. problems. Thus, due to the defects in the car, the complainant took the car time and again to the opposite parties No.1 and 2 i.e. the manufacturer and the dealer for necessary repair.
On 03.02.2010 the complainant while driving his car at the speed of 35 KMPH reached in front of Ashoka Hotel, an Indica car ahead of the complainant suddenly applied brakes, the complainant also applied brakes but his car had a small impact on the rear bumper of Indica Car which resulted minor damage on the bumper of the Indica Car as well as on the front bumper and the bonnet cover of the complainants car with slight dent. Complainant noticed that his car got filled with silverfish colour smoke and similar smoke came out from engine component from the bonnet. The complainant went in a shock because of feat psychosis as he thought his car was about to catch fire which he latter realized that was not so and it was all due to the malfunctioning of the Air Bags which came out from the containers partly and drop out un-inflated and were hanging like normal cloth bags. The complainant remained under shock and trauma for few days after the accident as if the accident would have actually happened, then he would have certainly lost his life due to non proper deployment of Air Bags. The complainant had purchased the car with the facility of air bags at a premium price to protect his life which has been denied to him due to this inherent defect in it. According to the complainant there was no question of opening of the air bags as the impact was minor, secondly it was not inflated properly. Complainant further stated that the other cars of the same Batch were suffering from one or the other manufacturing defects. The car was handed over to the opposite parties No.1 and 2 for the said problem and remained in their possession for a considerable long period as they had not received approval from CZECH Republic-The H.O. of manufacturer by assuring him that a favourable approval would be received soon. However, the opposite parties No.1 and 2 stated that there was no fault with the air bags. The opposite parties denied the payment on the ground that there was no manufacturing defect in the car. Opposite Party No.3 Insurance Company also did not release the insurable benefits though remained in contact with the opposite parties. According to the complainant due to illness of his mother, she remained in ICU of the Fortis Hospital, Vasant Kunj on 16.2.2010 but because of non-availability of his car, he could not attend to her properly and she died on 5.3.2010. The car was not handed over to the complainant by the opposite parties No.1 and 2 even on the date of last rites of his mother due to which the complainant had to bear the expenses of hired taxis. The complainant asked the opposite party No.1 to replace his car but the opposite party No.1 raised a bill of Rs.2,60,958/- for replacement of his Air Bags and dashboard though, it was not his liability. But the complainant under the compelled circumstances, paid Rs.2,60,958/- on 5.4.2010 to the opposite party No.2 and took the delivery of his car under protest for which he had sent a protest letter through E-mail on 4.4.2010 to the opposite parties. The opposite parties No.1 and 2 repaired the air bags of the car without the consent of the opposite party No.3 Insurance Company despite the fact that there was manufacturing defect in the car. Legal notice dated 15.3.2010 through registered post as well as by Courier, E-Mail was given to the opposite party but of no use. Thus, alleging it a case of deficiency in service and unfair trade practice, the complainant invoked the jurisdiction of the District Consumer Forum by filing complaint Upon notice, the opposite parties appeared and contested the complaint. Opposite Parties No.1 and 2 filed their written statements whereas the opposite party No.3 was proceeded exparte.
Opposite Party No.1 in its written statement took the plea that without mechanical inspection of the vehicle by an independent and competent agency, it cannot be said that there was any manufacturing defect in the vehicle. Several preliminary objections with respect to non-maintainability of the complaint were taken. It was further stated that the car had met with accident two times and after necessary repairs the car was delivered to the complainant. It was admitted that the complainant had purchased the car of his own of 2008 Model at the very beginning of January, 2009. It was denied that the opposite party No.1 had forced the complainant to purchase the said car. It was also denied that the car was having any inherent defect. It was denied that the automotive battery was dead or doors and Boot thereof cranked and did not close as alleged by the complainant. The deployment of the Air Bags under given facts and circumstances was on day and the deployment passed perfectly. The case of touch and go is being misconstrued by the complainant as a case of collision by explaining its working as per literature. It was further denied that the impact caused from collision and force resulting therefrom was not significant as much to trigger the deployment of Air Bags. The opposite party No.2 had rightly charged the complainant against repairs undertaken upon the vehicle, however, the delay in repairs occurred due to approval of the complainant and rejection on the part of insurance Company. The other allegations levelled by the complainant were denied.
Opposite Party No.2 in its written statement took several preliminary objections with respect to the non-maintainability of the complainant. It was denied that they had lured the complainant to purchase the car. The complainant never complained them about the Model of the car. The car was not having any manufacturing defect. The automotive battery of the vehicle was dead and the same was changed without any charges. The car Air Bags was O.K. and when the car met with an accident, they were supposed to open for the safety purpose and not due to the defect in its Air Bags. The company surveyors had inspected the car and could not found any defect in the car and the same was found without any manufacturing defect. Thus, denying the claim of the complainant, it was prayed that the complaint merited dismissal.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Forum accepted complaint and issued direction to the opposite parties as under:-
6. Even about the said accident of the Car, A DD Report No.9A dated 3.2.2010 in Police Station, Chankya Puri, New Delhi at 12.30 P.M. was recorded, wherein also it is reported that both the drivers of the Cars were present and it was a case of simple touching of the vehicle and no action was required to be taken against the parties and thus it was filed (Copy placed on file) (Photos of Car also on file). It also supports the claim of the complainant that it was a case of consequent applying of brakes by the Car ahead of the complainants Car and touching each other causing no damage to the Cars of anyone except of deployment of Air Bags in the Car of the complainant. Thus, it is not a case of serious frontal collision-as required for AIR BAG deployment. Though, the opposite party No.1 manufacturer has denied that it is not a case of a defective Air Bags or inherent defect in the Car but is simply of an ordinary required function of the Air Bags, as per warranty. (Though it is contradictory to its function as discussed above). The case of Touch & go is being misconstrued as a case of collision and that such case did not warn the deployment of Air Bags. It has also no merit as simply by applying brakes by the driver of a Car while the Car was only at the speed of 30-35 Km as mentioned in Job Card dated 9.2.2010 (without an accident) with force deployment of Air Bags shows that it is malfunctioning as applying of brake is different then an accident with a third person/object. Consequently, in our case, the deployment of Air Bags itself is defective which has caused not only harassment, fear, psychosis to the occupier of the Car i.e. complainant but also a manufacturing defect of one of its basic component AIR BAG function of a luxury Car for which the manufacturer is liable to compensate the owner, though not for replacing the Car itself as there is no manufacturing defect in the impugned Car. Thus, as per Warranty Certificate any expenses related to property damaged/Car the manufacturer is liable to pay.
Consequently, the complainant is entitled to the charges paid to the opposite party No.2 by him i.e. Rs.2,60,958/- - Rs.28,693/- = Rs.2,32,265/- as the Insurance Company OP No.3 has only reimbursed their liability to the extent of only Rs.28,693/- as admitted by the complainant.
7. The complainant has also alleged that he could not perform his duty to serve his ailing mother who was in ICU since 16.2.2010, when his Car was out of order and in possession of the opposite party i.e. after the incident dated 3.2.2010. Even, the complainant feels guilty as she passed away on 5.3.2010 and because of his car with the opposite party, he could not serve her properly and even after hiring taxis to attend her in the hospital @ Rs.2000/- per day claiming monetary loss. Consequently, the opposite parties No.1 & 2 are deficient in providing the services to the complainant causing harassment and mental agony. Thus, he is entitled to further damages of Rs.25000/-.
8. Thus, he is entitled to Rs.50,000/- + Rs.25000/- + Rs.2,32,265 i.e. total Rs.3,07,265/- as compensation. The relationship between opposite party No.1 & 2 is of principal to principal basis, thus they are jointly and severally liable to pay the compensation within 30 days, failing which the complainant will be entitled to recover it with interest @ 12% p.a. from the date of payment i.e. 5.4.2010 till realization. The complainant is also entitled to Rs.5000/- as litigation charges. The complainant is at liberty to recover the amount from opposite party No.2.
Aggrieved against the order of the District Forum, the opposite parties No.1 and 2 have come up in appeal.
Heard.
We have perused the case file as well as the written arguments submitted on behalf of the appellants.
It is not disputed that the car of the complainant had met with an accident on 03.02.2010. The only dispute on which the claim has been challenged by the Company is with respect to the impact of the accident in which the car was damaged. According to the complainant the car was damaged and photographs have been filed on the record. Impact was of touch and go. It is also not disputed that the accident took place at the speed of 30-35 KMPH as per job card which was prepared soon after the accident. Our attention has also been drawn by the learned counsel for the appellant with respect to the warranty Air Bags, issued by the opposite party which is in front of the vehicle. as per the warranty of Air Bags, it is specifically mentioned in the booklet that the airbag system is so designed that it will be deployed during a serious frontal collision. Further it is established that in case it is a great impact in the front head of collision, then full airbags are opened. In the instant case the empty airbags had opened but did not get inflated and only cloth came out without gas as speed was 30-35 Kmph. This fact has been mentioned in the Job Card issued from GIRIRAJ MOTORS PVT.LTD. This itself established that the version of the complainant that the car had suffered minor accident of touch and go. But the complainant had spent a sum of Rs.2,60,958/- on the repair of his car out of which the Insurance Company opposite party No.3 has reimbursed only for Rs.28,693/- and was not to compensate for the manufacturing defect of the Airbags system.
Having taken into consideration the facts and circumstances of the case we find that it is a fit case where the complainant should be compensated. However, at the same time feel that the compensation of Rs.25,000/- and Rs.50,000/- is not in consonance with the claim of the complainant and also that the interest @ 12% p.a. is on higher side. Hence, the impugned order is modified to the extent that the appellants shall pay Rs.2,32,265/- to the complainant alongwith interest @ 9% per annum from the date of payment to the Skoda Auto India Private Ltd. i.e. 5.4.2010 till its realization. Litigation expenses of Rs.5,000/- awarded to the complainant is maintained.
With the aforesaid modification in the impugned order, this appeal stands disposed of.
The statutory amount of Rs.25,000/- deposited at the time of filing the appeal and Rs.1,54,129/- deposited on 27.06.2011 in view of the order dated 27.05.2011 of this Commission, be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 16.08.2012 President B.M. Bedi Judicial Member