Order by:
Sh.Amrinder Singh Sidhu, President.
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that he purchased Honda City Car from Dada Motors Ludhiana bearing Chassis No.MAKGM252C9013182, Engine No.L15A70017585 bearing RC No.PB-47C-0027. Further alleges that at the time of purchase, the Opposite Parties assured that the security bags in the vehicle are provided by the company. Previous, it has come to the notice of the Opposite Parties that there was some defect in the security bags and the company itself called the vehicle and changed the security bags. On 08.11.2017 the complainant alongwith his wife and children was travelling in the said car from Ludhiana to Zira and said vehicle met with an accident and huge damage was occurred to the vehicle, but the security bags were not opened, it seems that the previous defect in the security bags has not been removed. There was danger to the life of the complainant and his family, but due to the grace of god, they all saved from any major injury. Hence, due to defect in the security bags, there is negligence on the part of the Opposite Parties in which any mis-happening can be occurred causing loss to the life of the complainant or any person travelling in the vehicle. As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) To direct the Opposite Parties to pay the damages to the tune of Rs.10 lakhs on account of endangering the life of the complainant and his family members alongwith interest @ 2% per month or any other relief to which this District Consumer Commission, may deem fit and proper. Hence, the present complaint.
2. On notice, Opposite Party No.1 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint is not maintainable; that the complainant has got no locus standi to file the present complaint; that the complaint is absolutely false and frivolous; that the complainant has admittedly made a claim to the insurance company for the accidental damages suffered by the car and the complainant by filing the present complaint is seeking to get compensated for the same cause twice, therefore, the complainant has not come before this District Consumer Commission with clean hands. Further alleges that the complainant has miserably failed to establish in his complaint that a particular kind of defect falling within the purview of inherent/ manufacturing defect had persisted in car as neither any engineers report nor any other convincing material has been filed before this District Consumer Commission. Moreover, the allegation of manufacturing defect in a car is not to be taken to be as a gospel truth on mere statement, but it is required to be proved beyond doubt by means of credible documentary evidence. Moreover, the complainant is seeking to take advantage of his own wrong, since the complainant is guilty of rash and negligent manner driving. The allegation of the complainant with respect to the car being defective is nothing, but an afterthought to cover up the rash and negligent manner. The complainant is unnecessarily dragging the answering Opposite Party into this quagmire in order to get them to accede to its unlawful demands. Moreover the manufacturing defect can only be proved by expert evidence. On merits, the Opposite Party No.1 took up the same and similar pleas as taken up by them in the preliminary objections. It is alleged that in case, there was serious manufacturing defect in the vehicle in question, the same would have appeared during servicing of the vehicle and the extensive use of the vehicle as on 08.11.2017 was 82630 Kms which clearly establishes that the car has been used extensively by the complainant without having any performance related anomaly from the date of purchase of car till the time of accident and hence there is no deficiency in service on the part of Opposite Party No.1
3. Opposite Party No.2 appeared separately through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint is not maintainable; that the complainant has got no locus standi to file the present complaint. However, no record of any type has been produced by the complainant to prove any type of the injury on his body and or any of his family members. True facts are that while the vehicle in question is running continuously under the supervision and custody of the complainant, then there an not be any possibility to come into the notice of the answering Opposite Party about any alleged defects in the security bags. No document/ police proceedings have ever been placed on record by the complainant regarding the major accident of the car, if any. The accident of the car was not that much major that there could be any requirement of the opening of the air bags. Moreover, the air bags opens only in case of head on collusion of the vehicle at the high speed and it was limited external damages to bottom lower side of the car of the complainant. Further more, the invoice regarding the repair of the car clearly speaks about the condition of the damage of the car of complainant as it explains itself that only external base of the car has been repaired which includes the repair regarding Air Conditioner gas, Air Conditioner Compressor, bulk head, external lower base and splash guard and no internal repair of any type was required as it was normal damage to the external base of the car and in this condition, there was no requirement of opening of air bags of the car of the complainant and hence, the complainant is liable to be dismissed.
4. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C1/A alongwith copies of documents Ex.C1 to Ex.C4 and closed his evidence.
5. On the other hand, to rebut the evidence of the complainant, Opposite Party No.2 also tendered into evidence affidavit of Sh.Harkirat Singh Grewal Ex.OP2/1 alongwith copies of documents Ex.Ops2/2 to Ex.2/5 and Ex.OP2/6 and closed the evidence on behalf of Opposite Party No.2. On the other hand, the evidence of Opposite Party No.1 is closed by order.
6. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
7. Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the complainant has purchased Honda City Car from Dada Motors Ludhiana bearing Chassis No.MAKGM252C9013182, Engine No.L15A70017585 bearing RC No.PB-47C-0027. Further alleges that at the time of purchase, the Opposite Parties assured that the security bags in the vehicle are provided by the company. Previous, it has come to the notice of the Opposite Parties that there was some defect in the security bags and the company itself called the vehicle and changed the security bags. On 08.11.2017 the complainant alongwith his wife and children was travelling in the said car from Ludhiana to Zira and said vehicle met with an accident and huge damage was occurred to the vehicle, but the security bags were not opened, it seems that the previous defect in the security bags has not been removed. There was danger to the life of the complainant and his family, but due to the grace of god, they all saved from any major injury. Hence, due to defect in the security bags, there is negligence on the part of the Opposite Parties in which any mis-happening can be occurred causing loss to the life of the complainant or any person travelling in the vehicle and there is deficiency in service on the part of the Opposite Parties.
8. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the complainant has admittedly made a claim to the insurance company for the accidental damages suffered by the car and the complainant by filing the present complaint is seeking to get compensated for the same cause twice, therefore, the complainant has not come before this District Consumer Commission with clean hands. Further alleges that the complainant has miserably failed to establish in his complaint that a particular kind of defect falling within the purview of inherent/ manufacturing defect had persisted in car as neither any engineers report nor any other convincing material has been filed before this District Consumer Commission. Moreover, the allegation of manufacturing defect in a car is not to be taken to be as a gospel truth on mere statement, but it is required to be proved beyond doubt by means of credible documentary evidence. Moreover, the complainant is seeking to take advantage of his own wrong, since the complainant is guilty of rash and negligent manner driving. The allegation of the complainant with respect to the car being defective is nothing, but an afterthought to cover up the rash and negligent manner. The complainant is unnecessarily dragging the answering Opposite Party into this quagmire in order to get them to accede to its unlawful demands. Moreover the manufacturing defect can only be proved by expert evidence. On merits, the Opposite Party No.1 took up the same and similar pleas as taken up by them in the preliminary objections. It is alleged that in case, there was serious manufacturing defect in the vehicle in question, the same would have appeared during servicing of the vehicle and the extensive use of the vehicle as on 08.11.2017 was 82630 Kms which clearly establishes that the car has been used extensively by the complainant without having any performance related anomaly from the date of purchase of car till the time of accident and hence there is no deficiency in service on the part of the Opposite Parties.
9. The case of the complainant is that previously, it has come to the notice of the Opposite Parties that there was some defect in the security bags and the company itself called the vehicle and changed the security bags. On 08.11.2017 the complainant alongwith his wife and children was travelling in the said car from Ludhiana to Zira and said vehicle met with an accident and huge damage was occurred to the vehicle, but the security bags were not opened, it seems that the previous defect in the security bags has not been removed and as such, there might be some manufacturing defect in the security bags. But we do not agree with the aforesaid contention of the ld.counsel for the complainant. First of all, it has been categorically held by Hon’ble National Commission that when one raises a claim before the insurance company, he/ she can not be allowed to later go back to the manufacturer of the vehicle, to claim the part of his/ her claim. Reliance is placed upon an judgement of the Hon’ble National Commission in M/s.A.B.Motors Private Limited Vs. M/s.Admiral Impex Private Limited (R.P.No.1588 of 2006) decided on 15th April, 2010 wherein it was held that:-
“If it was the case of the complainant that certain parts of the vehicle or the electrical system was defective and he was entitled to the rectification of the defect or replacement of such parts under the terms of the warranty, he ought to have pursued his case with the petitioner/dealer and the manufacturer but having treated it to be a case of accident and having filed a claim before the Insurance Company, obviously he could not go back to the petitioner/dealer and seek the other part of the claim.
Clearly, both the fora below have failed to appreciate that the complainant having approached the Insurance Company and obtained the relief, though not to his entire satisfaction, could not lay a claim on the petitioner/dealer. The orders passed by the fora below, thus, are not sustainable and are hereby set aside, resultantly the complaint is also dismissed.”
Moreover, the alleged manufactruring defect can only be proved by expert evidence. Hon’ble National Commission in H.Vasanthakumar Vs. M/s.Ford India Ltd. First Appeal No. 490 of 2004, decided on 10.2.2009 had the following views:-
“if the defects/ problems were of such a chronic nature, the complainant would not have been in a position to use the car for thousands of kms. Besides nothing prevented him from producing expert opinion/ evidence to prove that it was a case of manufacturing defect. We do not find any deficiency in service on the part of the respondents.”
Hon’ble National Commission in Tata Motors Ltd. & Ors.Vs. Ashish Aggarwal and Anr. Revision Petition No.12 of 2008 made the following observation on the issue of manufacturing defect, the relevant extract from the aforementioned judgement is reproduced as under:-
“the question as to whether there was or was not any manufacturing defect in the vehicle in question could not have been decided by the allegations and counter allegations and could only be decided effectively and conclusively after obtaining expert opinion in that behalf.”
10. Hence, keeping in view the facts and circumstances of the case as well as supra judgements of Hon’ble National Commission, New Delhi, this District Consumer Commission finds no merit in the complaint and the same stands dismissed. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
11. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated: 29.11.2021.
