State Consumer Disputes Redressal Commission
M/S Neva Garments Limited, vs M/S Skoda Auto India Pvt. Ltd on 14 May, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.14 of 2008.
Date of Institution 13.03.2008.
Date of Decision: 14.05.2012.
1. M/s Neva Garments Limited, Village Hussainpur, G.T. Road (W),
Opp. Hotel Amaltas, Ludhiana through its Deputy Manager Accounts.
2. Vishal Jain, Director, M/s Neva Garments Limited, Village
Hussainpur, G.T. Road (W), Opp. Hotel Amaltas, Ludhiana.
.....Complainants.
Versus
1. M/s Skoda Auto India Pvt. Ltd., Plot No.A-1/1, Shendra Five Star
Industrial Area, MIDC, Aurangabad, through its Director.
2. M/s Krishna Auto Sales, Dhandari Kalan, Ludhiana through its
Partners.
...Opposite parties.
Consumer Complaint U/s 17 of the
Consumer Protection Act, 1986.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Jasbir Singh Gill, Member.
Present:- Sh. J.S. Ahuwalia, Advocate, counsel for the complainants.
Sh. A.S. Bakshi, Advocate, counsel for the respondents. INDERJIT KAUSHIK, PRESIDING MEMBER:-
M/s Neva Garments Limited and another, complainants have filed this complaint u/s 17 of the Consumer Protection Act, 1986 (hereinafter called as "the Act").
2. Facts in brief are that the complainants purchased one Skoda Octavia ride 1.9 TDI bearing Engine No.ALHE11076, Chassis No.TMBCGCIU16A008056, colour Sahara Beige, for a sum of Rs.11,18,500/- , manufactured and sold by opposite party no.1 through its dealer opposite party no.2, vide invoice no.2006-07/000025 dated 24th April, 2006. Opposite party no.1 issued Form No.22, stating that the vehicle complies with pollution Consumer Complaint No.14 of 2008 2 standards and safety standards of component and roadworthiness as per the provisions of the Motor Vehicles Act, 1988 and the rules made thereunder. The said vehicle was insured with M/s Reliance General Insurance w.e.f. 22.04.207 to 21.04.2008 and was registered with the registering authority, vide no.PB-10-BX-9111.
3. As per the service manual, the vehicle contains two air bags, one for the driver and the other for the passenger in the front seat and one for the safety of the passenger sitting on the rear seat. In case of accident, these air bags would open and provide cushion between the dash board and the passenger/driver, so that both are saved from getting injuries by striking against the dash board. One air bag is provided at the side, so that if there is any impact on that side, the air bag would provide the cushion for the safety in the front seat and rear seat. At the time of purchase of the vehicle in question, it was assured by the opposite parties that the air bags system is provided in the vehicle and is functioning. The service manual contains all other details regarding the air bags.
4. Sh. Vishal Jain, Director of the complainant company was travelling in the said car from Ludhiana to Delhi on 04.11.2007 and was sitting in the front seat i.e. parallel to the seat of the driver. When the vehicle reached near Ambala, a truck going ahead of the car, suddenly turned towards right side and the car struck against the truck from the front and also from left side. The air bag which is provided in the vehicle for the safety of the passenger did open, but it was punctured and did not have any air in it and it could not perform the function of providing safety for which it was put there. Sh. Vishal Jain struck against the dash board and broke his arm, besides receiving other injuries. The right arm of Sh. Vishal Jain was fractured and plaster was put by the doctor.
5. The vehicle in question was handed over to opposite party no.2 for repair and providing all the components including the air bags. The car was repaired by opposite party no.2 and spares worth Rs.2,98,538-68 were Consumer Complaint No.14 of 2008 3 put besides labour charges of Rs.50,000/- and service tax, making a total bill of Rs.3,92,036/-. In the detail of the spare parts to be put in or replaced at nos.4,8 and 35, it is shown that the air bag, steering side worth Rs.32,200/-, air bag control unit worth Rs.22,113-78 and air bag passenger side worth Rs.51,016-89 were replaced.
6. Opposite party no.2 did not release the vehicle even though the defect in the system was manufacturing defect and insisted on the payment which was made as part payment under protest vide cheque for Rs.1,34,000/- and the balance was shown as Rs.2,58,036/-.
7. The complainants sent an E-mail on 14.11.2007 at 3.25 p.m. to opposite party no.1, informing that the punctured air bags opened when the vehicle met with the accident, but the system did not work as described in the service manual. Opposite party no.1 replied the E-mail vide its E-mail message dated 28.11.2007, without explaining as to why the punctured air bags opened.
8. The director of the complainant company was taken to General Hospital, Ambala Cantt after the accident on 04.11.2007 and thereafter, he was treated for fractured arm at Mittal Nursing Home and Trauma Centre (P) Limited, Main Road, Kitchlu Nagar, Ludhiana. He was admitted on 05.11.2007 and X-ray of the elbow of the right arm and the wrist of the right arm was conducted and was discharged on 06.11.2007 after operation of the right arm and was put on medicines. He also visited eight times the said hospital for follow up. He spent Rs.10,000/- on his treatment besides transportation. Due to immobilization of the right arm, the director could not perform his normal duties and after cutting of the plaster, he could not perform his duties due to stiffness of the arm, which took one to two weeks to become normal and the complainant company suffered the business loss. A legal notice was also served vide letter dated 16.11.2007.
9. It was prayed that the opposite parties be directed to make good the loss of Rs.50.00 lacs and to pay to the complainants damages/ Consumer Complaint No.14 of 2008 4 compensation to the tune of Rs.10.00 lacs besides Rs.30,000/- as litigation charges and Rs.10,000/- as medical charges.
10. In the reply filed on behalf of the opposite parties, preliminary objections were taken that the complaint has no cause of action. The air bags admittedly opened as per the warranty and protected the complainant's driver's face and chest and there is no deficiency in service. The complainant no.2 was himself guilty of negligence as he did not fasten the belt. In any case, the front balloon was not meant to protect the right arm of the front left seat passenger.
11. On merits, purchasing of the Skoda Octavia car in question, issuance of Form No.22 and the fact that the vehicle was insured with M/s Reliance General Insurance and was registered with the registering authority having the above registration number, was admitted. It was also admitted that whatever is stated in the service manual, the opposite parties admit the same. It was further pleaded that some of the relevant features are as follows:-
(a) "In addition to the three point seat belt with belt tensioners the air bag system offers further protection for the driver and passenger's head and chest in serious frontal collision".
"Apart from to normal protective function the seat belt has the task of keeping the driver or passengers in such a position so that the air bag can offer maximum protection".
12. It was further pleaded that the air bags are meant mainly for the protection of the head from striking the dash board and the chest from being pierced by the steering wheel. The function of the air bag is to create a cushion between face and chest of the driver and the co-passenger and the dash board. The version of the complainants that the air bags in front did open but the same were punctured, is self contradictory because if the balloon was punctured, it would not open at all. Whenever there is accident, the air bags inflate instantly to protect the face and chest and rapidly deflates to allow the driver a clean vision to drive the car. In the present case, front Consumer Complaint No.14 of 2008 5 balloons have played their warranted role as laid down in the manual. There was no deficiency in service. The head and chest of the driver and side passenger were fully protected. Instead of praising the system which saved their lives, the complainants are ungrateful and are trying to earn a bonanza out of this situation.
13. The balloons offer no protection to lower portion of the body, including arms and there is no deficiency. If the seat belt is fastened, the elbow cannot reach the dash board. The illustrations have been shown in the service manual. There was no manufacturing defect. Similar pleas were repeated and other allegations of the complaint were denied and it was prayed that the complaint may be dismissed with Rs.10,000/- as special damages under section 26 of the Act.
14. Rejoinder was filed in which the averments of the complaint were reiterated and that of the written reply were denied.
15. The complainants have filed affidavit of Sh. Suraj Parkash Sharma, its Deputy Manager (Accounts) along with documents Annexure C-1 to Annexure C-33.
16. The opposite parties filed affidavit in the shape of reply of Sh. Trivikram Guda, Company Secretary of opposite party no.1 and the affidavit in the shape of reply of Sh. Vijay Passi, Proprietor of opposite party no.2.
17. We have heard the learned counsel for the parties and have minutely examined the entire record placed on the file and also perused the written arguments filed on behalf of the complainants.
18. In the written arguments filed on behalf of the complainants, the pleas regarding the purchasing of the vehicle, its insurance and the safety standards and the information contained in the service manual was repeated. It was further submitted that in case of accident, the air bags would open and provide a cushion between the dash board and the passenger/driver, so that both are saved from fatal injury, by striking against the dash board. Sh. Vishal Jain, Director of the complainant company while travelling in the said car on Consumer Complaint No.14 of 2008 6 04.11.2007 was sitting on the front seat and received injuries when the car collided with a truck and his left arm was fractured, as air bags were punctured and he took treatment. The vehicle was handed over to opposite party no.2 for repair, who charged Rs.2,98,538-68 besides Rs.50,000/- as labour. E-mail was sent. The air bags came out as punctured/deflated and there is deficiency in service and the complainants are entitled to Rs.50.00 lacs for business loss, Rs.10.00 lacs as damages, Rs.30,000/- as litigation expenses and Rs.10,000/- as medical expenses. During the currency of the complaint, the complainants made several requests to provide the copy of the survey report, but since the report is against the opposite parties, the same was not supplied and the adverse inference may be drawn against the opposite parties and the complaint may be allowed.
19. On the other hand, counsel for the opposite parties has vehemently argued that the air bags are provided for the safety of the face and the chest and not the other parts of the body. In case the seat belt is fastened by the driver and the passenger sitting parallel to him, then the elbow or the front arm cannot reach the dash board. In the service manual Annexure C-5, the functioning of the front air bag is shown. It has been argued that once the collusion takes place, the air bags will open in split second and thereafter deflate immediately and they are designed so, because in case the vehicle is moving, the driver can see in front. It has been further argued that in case the air bags do not open and as alleged, if the air bags are punctured, then the driver as well as the co-passenger will receive injuries on the face and chest and the upper parts of the body. In the present case, the air bags did open and saved the driver and the passenger from receiving any face, head or chest injury, but the allegations that the air bags were punctured are altogether false and had the bags not opened, then the co- passenger should have received injuries on his face, head, chest and other parts of the body because in the present case, the co-passenger has not Consumer Complaint No.14 of 2008 7 fastened his belt. The complaint is false and frivolous and it should be dismissed with special costs.
20. We have considered the written submissions filed on behalf of the complainants, oral submissions advanced by the learned counsel for the opposite parties and have thoroughly screened the entire documents and material placed on the file.
21. We are of the opinion that the air bags are provided for the safety of the driver and the passenger sitting on the front seat parallel to him. In the present case, the accident took place and the air bags did open and saved the driver and Sh. Vishal Jain, who was sitting on the left front seat. The plea of the complainants that the air bags did not open, is falsified from the fact that neither the driver nor the co-passenger Sh. Vishal Jain received any injury on the face/head or the chest. Receiving of the injury on the arm of the co-passenger cannot be attributed in any manner to the opening of the air bags, because in case a person is sitting with seat belt fastened, then in case of accident, his elbow or the front arm will not reach the dash board. Sh. Vishal Jain was sitting on the front seat without fastening the belt and his face, head and chest were saved due to the opening of the air bags or else his face/head, chest would have received injuries but he did not receive the injuries on those parts because the air bags did open and saved him. The driver of the vehicle in question as well as Sh. Vishal Jain sitting on the front seat were saved due to the opening of the air bags and the receipt of the injury on the arm was due to the non-fastening of the seat belt and for that, the opposite parties cannot be blamed in any manner. The complainants have filed the false and frivolous complaint, just to defame the opposite parties and to extract money, by pleading wrong facts.
22. In view of above discussion, there is no merit in the complaint filed by the complainants and the same is dismissed with Rs.10,000/- (Rupees Ten Thousand) as special costs, to be paid by the complainants to Consumer Complaint No.14 of 2008 8 the respondents in equal shares within two months of the receipt of copy of the order.
23. Arguments in the complaint were heard on 09.05.2012 and the order was reserved. Now, the parties be communicated about the same.
24. The complaint could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Jasbir Singh Gill) Member May 14, 2012.
(Gurmeet S)