Chandigarh

DF-I

CC/248/2023

DR. TARUNPREET SAINI, MBBS, MD - Complainant(s)

Versus

HARBIR AUTOMOBILES Pvt. Ltd. - Opp.Party(s)

HEMANT SAINI

12 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/248/2023
Date of Institution	:	04/05/2023
Date of Decision	:	12/02/2024

 

Dr. Tarunpreet Saini, M.B.B.S., M.D., Department of Pathology, PGIMER, Chandigarh, daughter of Dr. Narinder Singh Saini, resident of House No. 573, Sector 16-D, Chandigarh-160016.

… Complainant

V E R S U S

1. Harbir Automobile Pvt. Ltd., Plot No.182/84, Industrial Area, Phase-1, Chandigarh-160002 through it’s authorised representative.

        Also At

2. Harbir Automobile Pvt. Ltd., Village Devi Nagar, Chandigarh-Ambala Highway, Derabassi, District S.A.S. Nagar, Mohali, Punjab through it’s authorised representative
3. Head Office:

Mahindra & Mahindra Limited Selenium, Tower -B, Plot No.31-32, Gachibowli, Financial, District, Nanakramguda, Hyderabad, Telengana-500 032, India through it’s authorised representative.

4. Corporate Office:

Mahindra & Mahindra Limited, Gateway Building, Apollo Bunder, Mumbai, Maharashtra-400 001 through it’s authorised representative.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

       

ARGUED BY	:	Sh. Hemant Saini and Ms. Neha, Advocates for complainant alongwith complainant in person.
	:	Sh. Gaurav Bhardwaj, Advocate for OPs 1 & 2
	:	Sh.  Rohit Goswami, Advocate for OPs 3 & 4

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Dr.Tarunpreet Saini, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that, on coming to know about safety features of Mahindra & Mahindra XUV-300 TGDI W8 Petrol car (hereinafter referred to as “subject car”) through an advertisement by the OPs, the complainant booked the subject car on 30.10.2022 by paying ₹21,000/- vide receipt (Annexure C-1). Complainant further deposited amounts of ₹9.00 lacs and ₹3,54,630/- on 23.11.2022 and 24.11.2022 towards the subject car with the OPs vide receipts (Annexure C-2 & C-3).  In addition to the above, the complainant had also paid an amount of ₹40,280/- towards the insurance of the subject car vide receipt (Annexure C-4). In this manner, complainant had paid total amount of ₹12,97,010/-, which includes insurance, registration charges, taxes and the sale price of the subject car before taking the delivery of the same on 24.11.2022 from the OPs.  After taking delivery of the subject car bearing registration No.CH01-CM-1508, the complainant alongwith the sales assistant drove the car to nearest petrol station to fill the tank where the complainant noticed some smell coming from the subject car, which was also discussed by the complainant with the said sales assistant who talked to representatives of OPs 1 & 2 and they assured that it was a normal smell in brand new car due to plastic wraps.  However, unfortunately, the subject car met with an accident at the circle near Harley Davidson Showroom at around 7:15 p.m. and collided with another car and thereafter crossed the road and dashed against the boundary wall of the showroom and in the said accident, the complainant sustained minor injuries. Complainant was shocked to see that airbags in the subject car did not function in the accident and immediately after that she rushed to the showroom and questioned about non-functioning of the airbags.  The representatives of the OPs had told the complainant that since it was a minor damage as a result of which the airbags could not function. Thereafter the complainant lodged complaint with the OPs on 26.11.2022 (Annexure C-5) regarding the safety of the subject car.  Alongwith the email, complainant had also sent the photographs of the accidental subject car.  In reply the complainant received email (Annexure C-7) from the customercare through which the complainant was informed that the complaint was under investigation.  On 13.12.2022, the complainant again sent an email (Annexure C-8) to the OPs for change of the subject car. However, on 19.12.2022, the complainant was informed by the OPs that the subject car has been repaired and was ready for delivery.  Since there was no statutory safety assurance of the subject car given by the OPs, the complainant refused to take delivery.  On 23.12.2022, the complainant received a call from the customercare and she was informed that the subject car is safe and the damage is not severe enough, but, the complainant told the customercare that she will not accept the subject car unless the OPs give safety assurance.  On 3.1.2023, the complainant sent a Whatsapp message to the OPs that since her concern for vehicle safety and maintenance has not been resolved, she is not ready to accept delivery. Even vide Whatsapp message dated 8.1.2023, complainant informed the OPs that since there was a major manufacturing defect of mal-functioning of airbags, which was discovered in the accident, complainant cannot take delivery of the unsafe and defective car. However, on 9.1.2023 the complainant again received a letter (Annexure C-10) from the OPs that in case the subject car is not taken away from their showroom, they will charge parking charges w.e.f. 30.12.2022 @ ₹300/- per day. The complainant repeatedly requested the OPs to give safety assurance to her and only after that she will take delivery, which the OPs had not given till date.  Thereafter the complainant issued a legal notice (Annexure C-11) to the OPs and the same was replied by the OPs through reply (Annexure C-13), but, till date, nothing has been done by the OPs. In this manner, the aforesaid acts of the OPs amounts to deficiency in service and unfair trade practice.  OPs were requested several times to admit the claim, but, with no result. Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their separate written versions.
3. In their written version, OPs 1 & 2, inter alia, took preliminary objections of maintainability, concealment of facts, cause of action and also that the accident had taken place due to the negligence of the complainant who met with a minor accident and there is no deficiency in service on the part of the answering OPs.  It is also alleged that the issue with regard to SRS system has been duly answered by OPs 3 & 4 in their reply to the legal notice. Even non deployment of the airbags of the subject car was replied by OPs 3 & 4 in their email dated 26.12.2012.  It is further alleged that the present consumer complaint is a pressure tactic of the complainant to get the subject car replaced with a new one which met with an accident due to her negligence.   On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
4. In their written version, OPs 3 & 4, inter alia, took preliminary objections of maintainability, cause of action, concealment of facts, locus standi and also that there is no deficiency in service on the part of the answering OPs.  It is also denied that there was any manufacturing defect in the subject car.  The relationship between the answering OPs and the authorised dealer/service centre (OPs 1 & 2), is on principal-to-principal basis and not that of principal and agent.  As there was no manufacturing defect in the subject car, there is no liability of the answering OPs, being manufacturer, and they cannot be held with any deficiency in service or unfair trade practice on their part.  Moreover, the manufacturing defect could not have been determined without proper analysis or test of the goods, as has also been held by the Hon’ble highest Courts in number of judgments.  It is further alleged that OP-1’s staff on the complainant’s request accompanied her in the subject car to the nearest fuel station for filling fuel and within a few minutes of driving, when the subject car was out of OP-1’s showroom, same collided with another car, causing damage in the front side and bonnet. Immediately, servicemen of OP-1 rushed to the spot and thereby ascertained that the collision was not as explained by the complainant and, therefore, air bags did not deploy. It is further alleged that, in fact, deployment of air bags depends upon the rate of de-acceleration of the vehicle, which means moving vehicle coming to sudden halt due to sudden external impact.  It is further alleged that the complainant was never forced to buy the subject car.  It is averred that, in fact, airbags are Supplementary Safety Systems, which comes into action post primary safety system detects need for SRS to get activated and are electronically controlled to ensure the deployment at the precise moment when it is felt that the vehicle is decelerating to an abrupt halt and the passenger might be hit with an object.  The complainant was also explained about the said Supplementary Safety System, but, despite of that she has filed the present consumer complaint. On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
5. In replication to the written version of OPs 1 & 2, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that on the relevant date i.e. 24.11.2022, when the subject car was delivered by OPs 1 & 2 from their showroom to the complainant and within 45 minutes of the delivery, the subject car, having been driven by the complainant, met with an accident just in front of the showroom when it firstly collided with another car, then jumped across the road and dashed against the boundary wall of the showroom and also that the subject car was having all the safety features, including airbags, and in the accident, the airbags did not deploy and OPs 3 & 4 are manufacturers of subject car, the case is reduced to a narrow compass as it is to be determined if non-deployment of the airbags in the accident amounts to manufacturing defect and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of complainant, or if non-deployment of the airbags in the accident, which as per the case of the OPs was on account of minor accident, does not amount to any manufacturing defect and the consumer compliant is liable to be dismissed, as is the defence of the OPs.
   2. In their written version, OPs 1 & 2 have specifically alleged that, in fact, the accident had taken place due to the negligent driving of the complainant and there is no deficiency in service on their part and also that OPs 3 & 4 have already answered about the SRS system in their reply to the legal notice issued by the complainant as the SRS system is designed for severe impact for safeguard of the passenger and in the case in hand, as the accident was not severe, the consumer complaint of the complainant is not maintainable and the same be dismissed.
   3. Perusal of the reply (Annexure C-13) given by OPs 3 & 4 to the legal notice clearly indicates that the said OPs, while replying to the legal notice of the complainant, have stated that the company representative as well as their dealer team have explained/replied to the complainant with detailed reasoning for non-deployment of the airbags in the subject car with technical points and photos and further that when nothing has been explained by them about the reason for non-deployment of the airbags, it is to be seen in the light of the evidence on record if the impact of the accident was such that the airbags ought to have deployed.
   4. A perusal of photographs (Annexure C-14) indicates that there was substantial damage to the subject car in the accident, which fact further stands corroborated from the service quotation (Annexure C-15) issued by OPs 1 & 2 giving details of the damage to the parts of the subject car.
   5. The learned counsels for the complainant have relied upon judgment of Hon’ble Apex Court, in Hyundai Motor India Limited Vs. Shailendra Bhatnagar, II (2022) CPJ 36 (SC), wherein, while dealing with similar question involving non-deployment of air bags in the accident, it was held as under :-

       “10. ……… We would like to add here that ordinarily a consumer while purchasing a vehicle with airbags would assume that the same would be deployed whenever there is a collision from the front portion of the vehicle (in respect of front airbags). Both the fora, in their decisions, have highlighted the fact that there was significant damage to the front portion of the vehicle. Deployment of the airbags ought to have prevented injuries being caused to those travelling in the vehicle, particularly in the front seat. A consumer is not meant to be an expert in physics calculating the impact of a collision on the theories based on velocity and force. In such circumstances, we do not find that there is any error in the findings of the two fora as regards there being defect in the vehicle.”

 

6. Otherwise also, it is worth mentioning here that without forceful impact, the car would not have been so badly damaged.  In such circumstances, non-opening of air bags in itself is sufficient to prove manufacturing defect in the car. Here we are strengthened by the judgment of our own Hon’ble Chandigarh State Commission in Sukhdeep Singh Bhinder Vs. EM PEE Motors Ltd. & Ors., Complaint Case No.795 of 2017 decided on 20.12.2018 and the relevant paragraph thereof is reproduced as under:-

"17. It is important to mention here that in the instant case, no report of any expert is required as the facts speak for themselves. It is a case of Res Ipsa Loquitur where the heavy impact of accident can easily be seen from pictures placed on record. Thus, a faulty vehicle was sold to the complainant by the opposite parties, since while selling the vehicle they claimed that it had world class safety features, including the state of the air bag system, which protects the passengers in the event of an accident, whereas in fact, the air bags did not deploy despite heavy impact. The opposite parties have indulged in unfair trade practice, by projecting the safety features of their vehicle to be amongst the best in the market. The impact of the accident was big & sudden, however, surprisingly, the air bags did not deploy, which resulted in causing injuries to the complainant and the co-passenger traveling in the car. In fact the air bags are meant to protect the driver and the passengers from severe injuries in a frontal or side collision. They are further designed to provide further protection in addition to the primary safety provided by seat belts. In the instant case, the non-functioning of the air bags is a total failure of engineering which could be more fatal, hence it appears that the car, in question, has got major defect, which could be discovered only at the time of such an accident as had happened in the instant case."

7. On the other hand, learned counsel for OPs 3 & 4 contended with vehemence that since the complainant has failed to lead any expert evidence to prove the manufacturing defect in the subject car, it is unsafe to hold that there was any manufacturing defect in the subject car.  In support of his argument, he has relied on following judgments/orders :-

Dr. K. Kumar Advisor (engineering), Maruti Udyog Ltd. vs Dr. A.S. Narayana Rao & Anr. [I (2010) CPJ 19 (NC)] in which it was held-

“for the necessity of expert evidence to prove the submissions of manufacturing defects in the vehicle.”

Classic Automobiles vs. Lila Nand Mishra, 1 [2010] CPJ 235 (NC) in which it was held -

“The onus to prove that there was manufacturing defect was on complainant/ respondent No.1. We agree with the contentions raised by the learned counsel for the petitioner that complainant/respondent No.1 failed to prove that there was any manufacturing defect by producing any cogent evidence. Complainant failed to produce expert evidence as provided under Section 13(1) (c) of the Consumer Protection Act, 1986 which provides as under.

Merely because a vehicle was taken for repairs repeatedly, no manufacturing defect can be presumed in the absence of an expert evidence.”

Sukhvinder Singh Vs. Classic Automobile, 2013 CPJ 47 NC in which it was held -

"to prove manufacturing defect, report of expert is necessary. Burden of proof is on complainant."

Ankur Jain vs Skoda Auto Pvt.Ltd. decided on 24.5.2019 in which it was held-

"the allegation is that the car the complainant purchased sustained manufacturing defect, the car having been sent to workshop on several occasions within a year. It is a trite law that the onus to prove that there was manufacturing defect was on the complainant."

Ajay Sharma vs Sanya Motors MANU/CF/0227/2012 in which it was held -

                "We have perused the entire record. There is no evidence on record to show that there was any manufacturing defect in the vehicle. State Commission as well as District Forum have rightly held that since there was no manufacturing defect, the manufacturer was not liable either to replace the car with a new one or to refund the entire sale consideration of the vehicle.”

8. However, the ratio laid down in the aforesaid judgments/orders, having been relied upon by OPs 3 & 4, is not applicable in the present case as it is not the case where the vehicle was taken for repairs purpose repeatedly, rather it is a case where the subject car had met with an accident and was badly damaged, but, despite of that the airbags did not deploy and also it has already been held by the Hon’ble Apex Court in the case of Hyundai Motor India Limited (supra) and our own Hon’ble State Commission in the case Sukhdeep Singh Bhinder (supra) that report of expert is not required where the facts of the case speaks for themselves. In the light of above, it is safe to hold that the subject car was having manufacturing defect due to which the airbags did not deploy, despite of having the accident, and even to that extent OPs 3 & 4 failed to rebut the evidence led by the complainant.
9. The consumer complaint is also resisted by OPs 3 & 4 on the ground that since there was relationship of principal to principal basis between OPs 3 & 4 and OPs 1 & 2 and not principal and agent, OPs 3 & 4 cannot be held liable for any deficiency in service or unfair trade practice. In support of argument this, learned counsel for OPs 3 & 4 has relied upon following judgments/orders:-

       Tata Motors Ltd. Vs. Antonio Paulo Vaz and Ors. (2021), whereby Hon'ble Supreme Court observed -

"In the present case, the dealer did not acknowledge any such deficiency. Unless the manufacturer's knowledge is proved, a decision fastening liability upon the manufacturer would be untenable, given that its relationship with the dealer, in the facts of this case, were on principal- to-principal basis".

Indian Oil Corporation vs. Consumer Protection Council, Kerala & Anr. (1994) 1, Supreme Court Cases 397, whereby the Hon'ble Supreme Court observed -

"reliance has to be placed on the circumstances, documents and conduct of parties to prove that the relationship of the parties is of 'principal and agent' or of one of 'principal to principal' basis".

Maruti Udyog Limited vs. Nagender Prasad Sinha & Anr., II (2009) CPJ 295 (National Commission), wherein the Hon'ble National Commission had observed -

"Consumer Protection Act, 1986 Section 21(b) - Motor Vehicles - Delivery delayed-interest @ 18% p.a. on deposited money along with the compensation awarded- manufacturer and dealer both held liable-hence revision - contention, relationship between the Petitioner and O.P. No. 2 was of principal to principal basis - dealer not agent, had not authority to bind company by contract - Order holding petitioner liable to pay interest set-aside - Complainant at liberty to realize awarded amount from authorized dealer."

R.P.No.3315 & 3297 of 2004 wherein the Hon’ble National Commission vide order 24.5.2010 held -

“liability of the manufacturer would not be there if there are no manufacturing defects surfaced with the vehicle as the relationship of the manufacturer with the dealer was that of principal-to-principal basis and the authorized dealer was not an agent of the principal.”

10. However, the ratio laid down in the aforesaid judgments/orders is further not applicable in the present case as in the present case the manufacturing defect in the subject car stands proved and it is not a case of delay in delivery etc.
11. Further question for determination before this Commission is if OPs 1 & 2, being dealer of the car, are equally liable in the present case.  In similarly situated case, the Hon’ble National Commission in the case of Manager, Jaika Automobiles Pvt. Ltd. Vs. Leela Sahu & Anr., Revision Petition No.1071 of 2016 decided on 20.4.2017 held as under :-

       6.    We have heard learned counsel for the parties and perused the record. The sole issue which needs consideration in this revision petition is whether the dealer who has nothing to do with the manufacturing of the car, can be held liable for manufacturing defect found in the car. This issue is no more res-integra. Similar issue came up before the Co-ordinate Bench of this Commission in the matter of Abhinandan vs, Ajit Kumar Verma & Ors., I (2008) CPJ 336 (NC) wherein this Commission took the view that the dealer of the goods cannot be held liable for manufacturing defect……..”

 

In view of above authoritative precedent of the Hon’ble National Commission, it is safe to hold that it is only the manufacturer i.e. OPs 3 & 4 who are liable and the dealer/OPs 1 & 2 cannot be held liable for any manufacturing defect. As such, the consumer complaint against OPs 1 & 2 stands dismissed with no order as to costs.  

12. Now coming to the quantum of compensation to be awarded in the instant case, it is worth mentioning here that the complainant had approached the OPs through emails as well as the instant consumer complaint seeking refund of the amount or to give undertaking in writing that the airbags installed in the subject car shall function properly and effectively in future and as the said prayer of the complainant has not been accepted by the OPs, till date, it would be in the interest of justice if the manufacturer/OPs 3 & 4 be directed to refund the entire amount paid by the complainant towards the purchase of the subject car alongwith interest and compensation etc.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs 3 & 4 are directed as under :-

1. to pay ₹12,97,010/- to the complainant alongwith interest @ 9% per annum from the date of accident i.e. i.e. 24.11.2022 onwards.
2. to pay an amount of ₹25,000/- to the complainant as compensation for causing mental agony and harassment to her;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by OPs 3 & 4 within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

12/02/2024 hg		Sd/- [Pawanjit Singh] President
		Sd/- [Surjeet Kaur] Member
		Sd/- [Suresh Kumar Sardana] Member