State Consumer Disputes Redressal Commission
Maruti Suzuki India Limited vs Rajeshri Nair & Others on 27 March, 2019
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
F.A. No. 15/2018
Maruti Suzuki India Limited,
Plot No. 1, Nelson Mandela Road,
Vasant Kunj, New Delhi-110070
[Through Sh. Ashish Chauhan,
Manager - Legal] ... Appellant
v/s
1. Mrs. Rajeshri Nair,
w/o. Ajoshmon R.,
R/o. 281/1, Near Balwadi, Arcar,
Curca, Tiswadi, Goa.
2. Mr. Ajoshmon R.,
R/o 281/1, Near Balwadi, Arcar,
Curca, Tiswadi, Goa.
3. M/s. Sai Service,
36/1, Penha De France,
Alto Porvorim, Bardez, Goa. ... Respondents
Mr. Umesh Rao, Lr. Counsel for the Appellant.
Mr. C. D'Souza, Lr. Counsel for the Respondents No. 1 and 2.
Ms. A. Shaikh, Lr. Counsel for the Respondent No. 3.
AND
F.A. No. 16/2018
M/s. Sai Service Pvt. Limited,
36/1, Penha De France,
Alto Porvorim, Bardez, Goa,
[Through Shri. Sanjay Wale (C.E.O.) ... Appellant
v/s
2
1. Mrs. Rajeshri Nair,
w/o. Ajoshmon R.,
R/o. 281/1, Near Balwadi, Arcar,
Curca, Tiswadi, Goa.
2. Mr. Ajoshmon R.,
R/o 281/1, Near Balwadi, Arcar,
Curca, Tiswadi, Goa.
3. M/s Maruti India Pvt. Limited,
1, Nelson Mandela Road,
Vasant Kunj, New Delhi-110070. ... Respondents
Mr. Umesh Rao, Lr. Counsel for the Appellant.
Mr. C. D'Souza, Lr. Counsel for the Respondents No. 1 and 2.
Ms. A. Shaikh, Lr. Counsel for the Respondent No. 3.
Coram: Shri. Justice U. V. Bakre, President
Shri. Dhananjay A. Jog, Member
Dated:- 27/03/2019
JUDGMENT
[Per Justice Shri. U. V. Bakre, President] This Common judgment and order shall dispose of both the above Appeals which are directed against the Judgment and Order dated 15/09/2017 passed by the Consumer Disputes Redressal Forum, North Goa (the "Forum", for short) in Consumer Complaint No. 102/2015. The Appellant of FA No. 15/2018 (Respondent No. 3 of FA No. 16/2018) was the Opposite Party No. 2 (OP No. 2, for short); the Appellant of FA No. 16/2018 (Respondent No. 3 of FA No. 15/2018) was the Opposite Party No. 1 (OP No. 1, for short); and Respondents No. 1 and 2 of both the Appeals were the Complainants. Parties shall hereinafter be referred to as per their status in the said Complaint.
32. The Complainants had filed the said Complaint to direct the OPs to replace the Swift ZDI BS IV NEW vehicle bearing registration No. GA 07 E 7254, with the defect free equivalent car or in the alternative to direct the OP No. 1 to refund to the Complainants a sum of Rs. 5,00,000/- being the purchase price of the car (minus depreciation) along with interest at the rate of 12% per annum from the date of filing of the Complaint till actual payment. The Complainants had further prayed to direct the OPs to pay to the Complainants, compensation to the tune of Rs. 2,00,000/- on account of malfunction of the air bags safety system on 01/05/2015 and to pay further compensation of Rs. 50,000/- on account of mental tension, agony and sufferings caused to the Complainants on account of failure to redress the grievance of the Complainants and for costs.
3. Case of the Complainants is as follows:
The Complainant No. 1 purchased the said Swift car manufactured by OP No. 2 from OP No. 1 for a price of Rs. 7,09,350/-. On 01/05/2015 at around 5:30 a.m. the car met with an accident at Davangiri Taluka, Anagodu Village near NH4 road while going towards Bangalore when a lorry bearing No. KA 01 C 8832 driven by one Mr. Ramesh suddenly took a right turn without giving any signal and on account of this rash and negligent act of the said driver the back portion of the lorry hit the Swift car. Crime No. 0134/2015 was registered by Davangiri Rural Police Station on 01/05/2015 against said Mr. Ramesh under Section 279 and 337 of IPC. The Complainant No. 2 who was sitting at the side of the driver's seat suffered injury to his forehead. This happened as the air bag system of the car malfunctioned and did not inflate/work, contrary to the promises made by the OP No. 2 4 as confirmed by the OP No. 1. As can be made out from the photographs, the Swift car was badly damaged on the front portion as well as on the left portion on account of the said accident. On 07/05/2015 the Complainant No. 2 sent email to the OP No. 2 bringing to its notice the factum of the accident and further informing that the Complainant No. 2 was wearing his seat belt at the time of accident and managed to save his life only because he had tilted the seat slightly and had kept his head bent towards the gear side. The Complainant No. 2 further informed the OP No. 2 that the representative of the OP No. 1 had to agree to the fact that in view of the impact the air bag should have opened. The Complainants did not receive any reply and on 18/05/2015 the Complainant No. 2 sent another mail to the OP No. 1 requesting for replacement of the vehicle as he was provided with a car with faulty safety system. On 01/06/2015 the OP No. 2 sent an email to the Complainant No. 2 requesting for his mobile number and on 01/06/2015 the Complainant No. 2 furnished the mobile number to the OP No. 2. Since there was no reply the Complainant No. 2 sent reminders on 05/06/2015 and on 06/06/2015. On 09/06/2015 the OP No. 2 requested the Complainant No. 2 to provide for some accident photographs to understand better as to where the car was hit. The Complainant No. 2 was also requested to elaborate the sequence of events leading to the accident. By email dated 09/06/2015 the Complainants furnished the necessary information and sent the photographs. Again on 16/06/2015 the Complainant No. 2 sent an email to both the OPs bringing to their notice that impact on the Swift car was both on the front side as well as left side and the frame in front of the radiator as well as the radiator was bent and the engine had moved on top. The Complainants had brought to the notice of the OPs that since the OPs were not willing to 5 accept their fault, the OPs should return the purchase money back. On 15/06/2015 the OP No. 2 sent an email to the Complainant No. 2 and apologized for the delay in writing and brought to the notice of the Complainant No. 2 that major impact was on the left side portion and that the front air bags were designed to inflate only under severe frontal collisions and side impacts. The stand taken by the OP No. 2 is contrary to the factual position since there was severe impact on the frontal portion as well as the side portion and given the said impact, the air bag system had to inflate. The OPs have failed to acknowledge the manufacturing defect in the air bag safety system of the Swift car. Hence the Complaint.
4. The Complainants relied upon the brochure of the said car given by OP No. 2, order booking docket, receipt towards booking of a car, tax invoice, certificate of insurance issued by National Insurance Company valid from 05/11/2012 to 04/11/2013, delivery memo, customer details, certificate of registration, certificate cum policy schedule issued by ICICI Lombard General Insurance Co. Ltd., valid from 05/11/2014 to 04/11/2015, first information report, complaint, medical reports, correspondence and photographs.
5. The OP No. 1, though duly served with the notice, did not file any written version.
6. The OP No. 2 filed the written version resisting the Complaint. The OP No. 2 stated as under:-
The Complainants are not consumers of the OP No. 2. The Complaint is barred by limitation since the vehicle was purchased on 08/11/2012 and the warranty stood concluded on 09/11/2014 by efflux of time. The vehicle plied for more than 32,420 kilometers at the time of accident. The Hon'ble 6 National Commission in the case of "A. B. Motors Private Ltd. Vs. Admiral Impex Pvt. Ltd. And Anr." has ruled out that where the insurance company has paid and reimbursed the Complainant, in that situation the Forum cannot allow any further claim. There is no omission or commission or any deficiency in service on the part of OP No. 2. The vehicle was in perfect and defect-free condition before the alleged accident. The Complaint is bad for non-joinder of necessary parties since the Complainants have not impleaded the insurance company i.e. ICICI Lombard General Insurance Co. Ltd., which has already approved, settled and paid the claim of the vehicle. The vehicle is not in the custody of Complainants and hence the Complainants have no locus standi to file the Complaint. The Complainant No. 1 has disposed of the said Swift car. At the time of sale, the Complainants were provided with the owner's manual and service booklet which contains warranty policy and instructions with regard to various systems installed in the vehicle including safety. The Complainants did not bother to read those instructions and has filed a Complaint to make undue gains. The safety features provided in the vehicle including air bag do not guarantee complete safety to the passengers and the driver/owner has to acquaint himself of the safety instructions provided in the owner's manual. The Complainant No. 1 did not report glowing of malfunction indicator lamp glowing in the instrument cluster panel of the vehicle during the tenure of the warranty or even thereafter. There is no defect in the vehicle. The front air bags are designed to inflate only in severe frontal collisions and deployment of air bags would depend upon the seriousness of the frontal collision on the effective area of the vehicle. The front air bags are not designed to inflate in rear impacts, side impacts, rollovers, under the bed of truck or bus, collision 7 with a utility pole or stumpage or minor frontal collisions, since they would offer no protection in those type of accidents. The air bag deploys only one time during an accident and seat belts are needed to restrain the occupants from further movements during the accident. The accident occurred in the present case falls under the category of "Front air bags will probably not inflate" i.e. collision from the side and therefore the plea of the Complainants of non-deployment of air bags during the accident is baseless and erroneous. There was no frontal collision happened to the vehicle in question.
7. The Complainants filed the affidavit of the Complainant No. 1. The OP No. 2 filed the affidavit-in-evidence of the Territory Service Manager namely Shri. Simant Singh. The Complainants and both the OPs filed their written arguments before the Forum.
8. Vide the Impugned Judgment, the Forum observed that the written version of the OP No. 2 cannot be considered since the same is not supported by any authorization or resolution in favour of the authorized signatory to sign and file the written version. The Forum held that since the written version of the OP No. 2 has been discarded, the affidavit-in- evidence on behalf of the OP No. 2 and also the written arguments are without any basis. The Forum has observed that in such circumstances it has not hesitation to conclude that the case of the Complainants as has been set out and supported by documents stands established. The Forum held that the OPs are liable for selling a car with manufacturing defect of the air bags. The Forum observed that the faulty air bags came to the knowledge of the Complainant No. 1 only when the said car met with the accident. The Forum held 8 that the OPs have not proved that any insurance company has settled the claim of the Complainants. According to the Forum, the photographs produced by the Complainants showed grave impact towards the front portion of the car and that the vehicle was a total loss. The Forum held that with such an impact the air bag had to be deployed. The Forum observed that there is no need of any expert evidence to demonstrate the velocity, intensity and concentration of the impact to the said car. The Forum relied upon the Judgment dated 25/04/2016 of the Hon'ble National Commission in the case of "Hyundai Motor India Ltd V/s Leela Shu & Anr.,"
(Revision petition no. 1014 of 2016). The Complaint has been allowed. The OPs have been jointly and severally directed to replace the Swift ZDI BS IV bearing registration no. GA 07 E 7254 with a brand new equivalent car. It has been directed that the registration, insurance and other miscellaneous expenses should be borne by the OPs. In the alternative, the OPs, jointly and severally, have been directed to refund to the Complainants a sum of Rs. 5,00,000/- as claimed together with interest at the rate of 12% per annum from 8 th November 2012 till the date of actual payment. The OPs have been further, jointly and severally, directed to pay to the Complainants a sum of Rs. 2,00,000/- as compensation within 30 days from the date of the Order failing which the same shall then be payable with 9% interest from the date of the Order till the date of actual payment. The OPs have also been jointly and severally directed to pay an amount of Rs. 50,000/- towards costs of the litigation. Both the OPs are aggrieved by the impugned Judgment and Order. The OP No. 2 has filed the FA No. 15/2018 whereas the OP No. 1 has filed the FA No. 16/2018.9
9. Records and proceedings of Complaint No. 102/2015 were called for. Parties have filed written arguments on record. We have gone through the entire material on record.
10. First of all, it is seen that the Forum, in the alternative, has directed both the OPs, jointly and severally, to refund to the Complainants the sum of Rs. 5,00,000/- as claimed by the Complainant together with interest at the rate of 12% per annum from 08/11/2012 i.e. from the date of purchase of the car till the date of actual payment. In fact, the Complainants had prayed to direct only the OP No. 1 to refund the said amount and had claimed the interest not from date of purchase i.e. from 08/11/2012 but from date of filing of the Complaint i.e. from 04/11/2015. Thus, the Forum has awarded the Complainants with reliefs which they had not claimed and which is much more than the claim of the Complainants. Such relief awarded by the Forum cannot be sustained.
11. In the memo of FA No. 16/2018, the OP No. 1 has stated several facts which cannot be looked into since the OP No. 1 had neither filed the written version nor the affidavit-in evidence in the main Complaint. The OP No. 1, in the appeal memo, has falsely stated that on being summoned, the OP No. 1 adopted the written version and affidavit-in-evidence of the OP No. 2. The OP No. 1, though appeared before the Forum through an Advocate, did not do anything except filing written final submissions. However, since the OP No. 1 appeared in the matter throughout, nothing can prevent it to make submissions on the basis of the evidence on record though it cannot submit its personal case, in the absence of pleadings.
1012. The OP No. 2 has filed its written version. The written version bears the stamp of the OP No. 2 on all pages and also the stamp as "Authorized attorney for OP No. 2", with signature of the said authorized attorney. It is pertinent to note that in the affidavit-in-evidence filed by the Complainant No. 2, on behalf of both the Complainants, the Complainants have specifically dealt with all the paragraphs of the said written version. The Complainants, in their affidavit-in- evidence, have not objected to taking on record and considering the written version of the OP No. 2. The Complainants have not doubted the verification of the written version done by the named authorized attorney of the OP No. 2 before the Notary Public. Indirectly, the Complainants have accepted that the written version has been filed by the authorized attorney of the OP No. 2. The affidavit-in-evidence filed by the territory service manager of the OP No. 2 in nothing but a replica of the duly verified written version of the OP No. 2. The Complainants have not denied that Mr. Simant Singh is the territory service manager of the OP No. 2. The Complainants have dealt with the case of the OP No. 2, as pleaded, even in their written arguments filed before the Forum. In our considered view, the Forum has erred in discarding the written version and affidavit-in-evidence of the OP No. 2 for non-production of resolution or authorization letter in favour of the authorized attorney of the OP No. 2.
13. The car was purchased by the Complainant No. 1 on 08/11/2012 and the accident had occurred on 01/05/2015 and by that time the warranty had already expired. The accident occurred on 01/05/2015. The certificate cum policy schedule produced by the Complainants themselves show that the said vehicle was duly insured as on that day with ICICI Lombard General Insurance Co. Ltd. The OP. No. 2 has 11 specifically stated in its written version and the affidavit-in- evidence that the claim of the vehicle has been approved, settled and paid by the said insurance company and that the vehicle is not in custody of the Complainants. In the Appeals, the OPs No. 1 and 2 have disclosed that the insurance claim for vehicle with registration No. GA-07-E-7254 has been settled vide Claim No. MOT04590996 by ICICI Lombard General Insurance Co. Ltd. and that the vehicle was declared total loss and the possession was handed over to the insurance company. The OPs have produced the details of payment of insurance claim by ICICI Lombard General Insurance Co. Ltd. to the Complainants. The insurance claim was settled on 25/07/2015 and the Complaint was filed on 04/11/2015. It is pertinent to note that in the Complaint, the Complainants had not disclosed about the insurance and as to what happened to the said vehicle after the accident as to whether it is still with them or whether its possession has been handed over to the insurance company. According to the Complainants the reimbursement towards damage of vehicle is altogether a different cause of action whereas the present case involves compensation for malfunction of Air Bag Safety System. The Complainants have nowhere claimed that the Swift car itself was defective or had any manufacturing defect. It was the case of the Complainants that the said car was provided with faulty air bag system. The Complainants in the written arguments before the Forum have stated that the present case is not one arising out of nor settlement for deficient settlement of an insurance claim and that the present case involves compensation for manufacturing defect which has nothing to do with insurance claim. In the written arguments the Complainants have not denied that their claim of damages has been settled by the insurance company. It is pertinent to note that though the Forum has directed the OPs 12 jointly and severally to replace the said car, however, there is no order directing the Complainants to return the said car to the OPs. The relief granted by the Forum to replace the car cannot sustain.
14. It is not the case of the Complainants that there was any manufacturing defect in the said car as such. Their case was specifically of manufacturing defect in the Air Bag Safety System of the said car. The damages to the car had not occurred due to any manufacturing defect to the car or due to any fault or deficiency in service on the part of the OPs, but had occurred due to an accident caused by one Mr. Ramesh, on account of his rash and negligent driving of the lorry bearing No. KA 01 C 8832. The said driver suddenly took right turn without giving any signal and the back portion of the said lorry hit the Swift car of the Complainant No. 1 thereby causing extensive damages to the car and injuries to the occupants. The said damages to the car did not occur on account of defective Air Bag System. The question of ordering the OPs or either of them to replace the car or to refund the entire purchase price of the car to the Complainants does not at all arise. The Forum has relied upon the judgment of the Hon'ble National Commission in the case of "Hyundai Motor India Ltd." (supra). In that case, no direction to replace the car or to refund the purchase price of the car to the complainant was given. The District Forum, inter alia, had directed the Opposite Parties, either jointly or severally, to pay Rs. 8,95,000/-(which was the purchase price of the car) to the complainant on account of mental pain and agony and to pay Rs. 10,000/- on account of litigation expenses. However, the opposite parties had approached the State Commission with an appeal which was partly allowed and the opposite parties were directed to pay a sum of Rs. 2,50,000/- instead 13 of Rs. 8,95,000/-. The Hon'ble National Commission dismissed the Revision Petition filed by the opposite parties by imposing further costs. The Forum does not appear to have read the entire judgment of the Hon'ble National Commission. In view of the above, the relief of replacement of car and the alternate relief of refund of the purchase price, awarded by the Forum is quashed and set aside.
15. The case of the OPs is that there was no frontal collision to the vehicle and that the said vehicle got moderately damaged on the left side. However, according to the Complainants, the Swift car was badly damaged on the front portion as well as on the left portion. The Complainants have pleaded that the frame infront of the radiator as well as the radiator was bent and the engine had moved on top. There are photographs on record produced by the Complainants which duly establish that there was severe impact on the front side of the car as well as on the left side and it appears that there was total loss. The genuineness of these photographs has not been denied by the OPs. The OP No. 2 has pleaded that the front air bags provided in the vehicle are designed to inflate only in severe frontal collisions and deployment of air bag would depend upon seriousness of the frontal collision on the effective area of the vehicle. According to the OP No. 2, the photographs speak for themselves. The oral evidence of the Complainant No. 1 read with the said photographs duly prove that the air bags had to inflate on account of the severe frontal collision as well as collision to the left side portion of the car but due to manufacturing defect in the said Air Bag Safety System, there was failure of the said safety system. It should be kept in mind that the OP No. 1 has not denied the case of the Complainants by filing written version. There is no need of 14 any expert evidence. The relief to which the Complainants are entitled is replacement of the faulty Air Bag System to the said car and compensation on account of malfunction of the said Air Bag Safety system on 01/05/2015. However, it seems that the Complainants are not in possession of the said car since the possession has been handed over to the Insurance Company and hence the question of replacement of Air Bag System will not serve any purpose and grant of compensation will be proper. In such circumstances, the Complaint deserves to be allowed partly.
16. In the result we pass the following:
ORDER
(a) Both the Appeals are partly allowed. The impugned order stands modified as under:
(b) The Complaint is partly allowed.
(c) The OPs, either jointly or severally shall pay to the Complainants compensation of Rs. 2,00,000/- on account of malfunction of the Air Bag Safety System of the car on 01/05/2015, due to which the Complainant No. 2 sustained injuries in the accident and the same could have taken his life.
(d) The OPs, either jointly or severally shall pay to the Complainants compensation of Rs. 50,000/- towards mental tension, agony, sufferings and towards costs of litigation.15
(e) The above amounts of Rs. 2,00,000/- and Rs. 50,000/-
shall be paid within 30 days from the date of this order failing which the same shall carry simple interest of 9% per annum from the date of expiry of the said period of 30 days till the date of actual payment.
[Shri. Dhananjay A. Jog] [Justice Shri. U. V. Bakre]
Member President
sp/-