Haryana

StateCommission

A/760/2016

MAHINDRA AND MAHINDRA LTD. - Complainant(s)

Versus

DR.TARUN YADAV - Opp.Party(s)

MANISH JAIN

01 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :    760 of 2016

Date of Institution:    18.08.2016

Date of Decision :     02.08.2017

 

Mahindra & Mahindra Limited, Mahindra Towers, Worli Road # 3, Worli, Mumbai, Through its Vice-President Mr. A. Vishwanath.

 

                                      Appellant-Opposite Party No.2

Versus

 

1.      Dr. Tarun Yadav s/o Dr. Rohtash Yadav, # 400, Ward No.2, Rewari Road, near Modawala Mandir, Narnaul, Tehsil Narnaul, District Mahendergarh.

                                      Respondent-Complainant

2.      Dewan Fourwheels, Authorised Dealer, Mahindra & Mahindra Limited, Mahendergarh Road, Narnaul, Through its Proprietor.

Respondent-Opposite Party No.1

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri Balbir Singh, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                              

Argued by:          Shri Mayur Kanwar, Advocate on behalf of Shri Manish Jain, Advocate for appellant.

                             Shri Tarun Gupta, Advocate for respondent No.1.

                             Shri M.S. Randhawa, Advocate for respondent No.2.

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

       This appeal has been preferred against the order dated July 19^th, 2016 passed by District Consumer Disputes Redressal Forum, Narnaul (for short ‘the District Forum’) in Consumer Complaint No.122 of 2014.

2.                Dr. Tarun Yadav-complainant (respondent No.1 herein) purchased car (Scorpio) bearing registration No.HR-36J-0011 from Dewan Fourwheels Private Limited-Opposite Party No.1, an authorised dealer of Mahindra & Mahindra Limited-Opposite Party No.2/appellant. The car was having Supplement Restraint System (SRS)-Airbag facility. The complainant was told that the airbags would deploy as and when there is certain impact and airbags would be helpful to driver and passenger to save their lives. In the month of April, 2014 when Arun Yadav-brother of the complainant was driving the car, all of a sudden, the car met with an accident. Arun Yadav sustained multiple injuries on his body at the time of accident and the car vehicle was also badly damaged. It is alleged that Arun Yadav suffered injuries due to non-functioning of the airbags. The surveyor of the Insurance Company stated in his report that Arun Yadav sustained injuries due to non-functioning of the airbags due to manufacturing defect. The opposite parties No.1 and 2 were informed regarding manufacturing defect in the airbags but they could not rectify the defect. The opposite parties also did not accept the request of the complainant to change the car vehicle. The complainant is entitled to receive an amount of Rs.1.00 lacs on account of injuries sustained by his brother and an amount of Rs.5.00 lacs as compensation on account of damage caused to the car vehicle.

3.                It is prayed that the opposite parties be directed to change the car of the complainant; to pay an amount of Rs.1.00 lac on account of injuries sustained by Arun Yadav and an amount of Rs.5.00 lacs as compensation on account of monetary loss suffered by the complainant.

4.                The opposite party No.1 in its written version has taken plea that the complaint is barred by limitation; that the complaint is not maintainable in the present form and that the vehicle was not having any manufacturing defect. The driver of the vehicle also did not sustain injuries on account of non-functioning of airbags of the car. It is pleaded that the airbags are being controlled from the censor fitted in the vehicle and the same are deployed when there is an impact, as is mentioned in Owner’s Manual. There is no deficiency in service on the part of the opposite parties.

5.                The opposite party No.2 filed its separate written version with the plea that the complaint is barred by limitation and that the complaint is not maintainable in the present form. The car vehicle was purchased on 15^th November, 2011 and the present complaint has been filed on 2^nd September, 2014.  Regarding deployment of airbags, it has been clearly mentioned in the Owner’s Manual that the airbags can be deployed when there is certain impact. It is also pleaded that impact of the accident of the vehicle in question is not such which is being recognized by an electric control unit of the vehicle for deployment of the airbags. The report of the surveyor does not suggest any manufacturing defect in the vehicle. The complainant has also not obtained any opinion to establish any manufacturing defect in the vehicle. It is prayed that the complaint be dismissed with costs.

6.                After hearing arguments, vide impugned order dated July 19^th, 2016 passed by the learned District Forum, complaint filed by the complainant was allowed with costs and the opposite party No.2 was directed to pay the difference of amount between the price of the vehicle without airbags and the vehicle with airbags; to pay an amount of Rs.1.00 lacs as compensation to the complainant with interest at the rate of 10% per annum from the date of filing of the complaint till its realisation and an amount of Rs.5500/- as litigation expenses.

7.                Aggrieved with the impugned order dated July 19^th, 2016, passed by the learned District Forum, the opposite party No.2 has filed the present appeal with a prayer to set aside the impugned order and to dismiss the complaint filed by the complainant.

8.                We have heard learned counsel for the parties and perused the case file.

9.                It will be pertinent to mention here that although the complainant has taken plea that the car belonging to the complainant had met with an accident when his brother Arun Yadav was driving the vehicle, but date, time and place of the alleged accident is neither mentioned in the complaint nor in any other document placed on the file. It is also not made clear as to whether the accident took place with some other vehicle or an animal or any other object.  Documents on record show neither local police was informed regarding this accident nor any F.I.R. was lodged. It is also not mentioned in the complaint or affidavit of the complainant that the accident took place in presence of any other person. In these circumstances, it will not be proper and justify to believe the version of the complainant that any such accident took place and caused damage to the car vehicle belonging to the complainant.  Possibilities cannot be ruled out of a concocted story of this accident by the complainant so that he may be able to successful in obtaining compensation from the Insurance Company.  In case findings are given that no such accident took place, findings can be easily given that airbags fitted in the car vehicle were not defective because deployment of the airbags is possible only if there is any impact on the body of the car.

10.              Anyhow, even if this version of the complainant is believed to be true that any such accident had taken place, in that eventuality also, findings can be given that the accident either took place due to rash and negligent driving of the driver of Scorpio car vehicle or driver of any other vehicle and the opposite parties cannot be held liable regarding any damage caused to the vehicle at the time of accident or any amount spent for treatment of the driver. The complainant has mentioned the manufacturing defect only in the airbags and not in any other part of the vehicle.

11.              Receipt Annexure C-7 and bill Annexure C-8 regarding repair of the car vehicle from an authorised dealer of the company, show that the complainant spent an amount of Rs.69,700/- for repair of the damaged car vehicle. In our view, the accident did not take place due to any manufacturing defect in the vehicle or due to manufacturing defect in the airbags. The accident, if any, took place due to rash and negligent driving by Arun Yadav or driver of some other vehicle. In these circumstances, the opposite parties cannot be held liable to pay the above mentioned amount of Rs.69,700/- spent by the complainant for repair of the damaged car vehicle. We feel the District Forum committed an error while giving findings that the complainant is entitled to receive compensation on account of the amount spent for repair of the vehicle. Moreover, airbags cannot save a vehicle from accident. However, the airbags can help to save the driver and other passengers travelling in the vehicle from sustaining injuries.

12.              As per version of the complainant, there was manufacturing defect in airbags of the car vehicle. The complainant has taken plea that he brought this fact to the notice of the opposite parties and mechanic of the opposite parties removed the defect in airbags. The complainant did not obtain any such report from a qualified mechanic of the authorised dealer of the manufacturer or any other competent and qualified person. In order to prove that there was manufacturing defect in the airbags, the complainant tendered in evidence report of Dinesh Kumar, Mechanic (Annexure C-9) who opined that there was manufacturing defect in the airbags fitted in the Scorpio car vehicle. He inspected the vehicle and prepared his report dated 06^th January, 2016.  Dinesh Kumar has not given any sound reason in support of his opinion that there was manufacturing defect in the airbags and repair of the airbags is not possible. We feel the complainant should have got examined the car vehicle from the service centre of manufacturer and obtain report that the defect in the airbags cannot be removed, being manufacturing defect.  Moreover, Dinesh Kumar, also appears to be a routine type mechanic without any diploma/degree in auto engineering. It appears that the report of Dinesh Kumar has been procured so that the complainant may be able to claim compensation from the opposite parties. In this way, evidence on the file is not sufficient to hold that the airbags fitted in the Scorpio car of the complainant were having any manufacturing defect.

13.              Although, findings have been given that the airbags were not having any manufacturing defect but even if for the sake of arguments, it be considered that the airbags were having any defect or manufacturing defect and were not functional on the date of alleged accident, even then no compensation amount can be awarded to the complainant regarding injuries sustained by Arun Yadav-brother of the complainant.  In fact, in this case, neither copy of Medical Legal Report has been placed on the file to show that Arun Yadav sustained any injury on his body at the time of accident nor any document is adduced in evidence to prove that any amount was spent on the treatment of Arun Yadav.  Moreover, neither Arun Yadav has been examined in this complaint nor his affidavit has been tendered in evidence in support of the pleas taken in the complaint. The complainant cannot claim compensation amount as no amount was spent by Arun Yadav for his treatment. Moreover, the complainant has no right to claim compensation on account of any amount spent by Arun Yadav for his treatment.

14.              In this way, the complainant has failed to prove that Arun Yadav sustained any injury on his body or that any amount was spent on his treatment. In these circumstances, findings of the learned District Forum regarding awarding an amount of Rs.1.00 lac as compensation and direction to the opposite party No.2 to pay difference of the amount between the price of the vehicle  without airbags and the vehicle with airbags as well as litigation expenses, are liable to be set aside. Resultantly, findings of the learned District Forum are held illegal, invalid and are hereby set aside. Hence, the appeal is accepted, the impugned order is set aside and the complaint stands dismissed.

15.              The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant-opposite party No.2 against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 02.08.2017

Urvashi Agnihotri Member

Balbir Singh Judicial Member

Nawab Singh President

CL