Chandigarh

DF-I

CC/801/2015

Baljeet Singh - Complainant(s)

Versus

KLG Hyundai Ashwani Automobiles Pvt. Ltd. - Opp.Party(s)

Parvinder Singh Ahluwalia

12 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

 

 

                               

Consumer Complaint No.	:	CC/801/2015
Date of Institution	:	02/12/2015
Date of Decision	:	12/01/2017

 

 

Baljeet Singh s/o Gurdev Singh r/o V.P.O. Kalour, Tehsil Bassi Pathana, Distt. Fatehgarh Sahib, Punjab.

…..Complainant

V E R S U S

1.     KLG Hyundai Ashwani Automobiles Pvt. Ltd., 181/3, Industrial Area, Phase I, Chandigarh 160002 through its Manager.

2.     Registered head office, Hyundai Motor India Limited, Irrugattukottai, NH No.4, Sriperumbdur Taluk, Kancjipuram District, Tamil Nadu 602117 through its Managing Director.

……Opposite Parties

 

CORAM :	S.S. PANESAR	PRESIDENT
	MRS.SURJEET KAUR	MEMBER
	SURESH KUMAR SARDANA	MEMBER

 

                                                                       

ARGUED BY	:	Sh. Parvinder Singh Ahluwalia, Counsel for complainant
	:	Sh. Gaurav Bhardwaj, Counsel for OP-1
	:	Sh. Parminder Kaur, Counsel for OP-2

Per S.S. Panesar, President

1.         The facts, in brief, are that the complainant visited OP-1 car showroom for purchasing a family car for personal use.  OP-1 offered i20 Asta DSL 1.4 model car to the complainant. Depending upon the prescription of safety features described by OP-1, the complainant offered to buy the said car which was sold to him on 4.12.2014. The complainant plied the said car on road very carefully, but, on 5.11.2015 it met with an unavoidable accident at Sanam Road near Bhawanigarh due to which the front portion of the car was totally damaged. The son of the complainant, who was co-passenger at the time of accident, suffered minor head injury in the accident due to non-deployment of air bags. According to the complainant the car directly hit the tree with that part where the air bags sensors are installed which enable the deployment of air bags, but, in spite of that, the air bags failed to deploy because of a manufacturing defect. The complainant visited OP-1 to inform about the manufacturing defect in the car i.e. non deployment of air bags in spite of straight hard hit with a tree, but, its engineer/service team prepared a repair order and asked him to get the car repaired. The complainant requested OP-1 to replace the aforementioned car with a new one. OP-1 asked the complainant to get the car repaired and in the meanwhile to consider his request of replacing the defective car with a new one. The complainant ordered the repair of the car and OP-1 prepared the cost of repairing by preparing a survey report, but, on 26.11.2015 OP-1 refused to replace the car.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint. 
2.         OP-1 in its written reply has alleged that it did not offer any car and rather the complainant came to it for purchase of the car and after satisfying himself purchased the car at his own sweet will. It has been averred that the complainant approached for repair of the accidental vehicle and the same was delivered after repairs. It has been pleaded that the airbags deploy when there is a severe frontal or side impact at a speed. In the case of the complainant, all the sensors were found to be intact and not damaged. The SRSCM which records the crash was also not having any such event in it. There was no major damage on the front side and the damage was only to the right hand side fender. It has been averred that the complainant took the delivery of the repaired vehicle and got the insurance claim without any protest.  Pleading that there is no deficiency in service or unfair trade practice on its part, OP-1 prayed for dismissal of the complaint.
3.         OP-2 in its separate written reply has averred that there was no frontal collision and the collision was observed on right hand side fender only. The vehicle in question was investigated post-accident and no manufacturing defect in the vehicle was observed.   Sensors were found in ok condition. Further, no crash data recorded in Supplemental Restraint System Control Module (SRSCM).  The impact of the accident was on right hand side of the vehicle which is more than 30º impact angle. Since it was not a head on collision, significant amount of impact energy was absorbed and no impact was detected by sensors. Pleading that there is neither any manufacturing defect in the vehicle nor any deficiency in service or unfair trade practice on its part, OP-2 has also prayed for dismissal of the complaint.
4.         Separate rejoinders were filed by the complainant denying all the averments in the written statements of OP-1 and OP-2.
5.         The parties led evidence in support of their contentions. 
6.         We have gone through the record, including the written arguments of the complainant and OP-2, and heard the arguments addressed by the learned Counsel for the parties.
7.         On the basis of the evidence on record, learned counsel for OP-1 has vehemently contended that on receipt of information regarding the accident, surveyor was duly appointed and the car was repaired to the satisfaction of the complainant free of cost. The complainant has tried to place reliance on the alleged expert report (Annexure C-6) to impress upon this Forum that the air bags could not be deployed at the time of accident due to certain manufacturing defect.  However, the said report cannot be relied upon by this Forum because the complainant has failed to prove that the person submitting the report was an automobile expert.  No degree or diploma of that person has been brought on record.  It appears that the report has been obtained from some car mechanic who had no expertise to spell out manufacturing defect in the air bags.  Even if, for the sake of argument, this Forum reaches the conclusion that the air bags of the car in question actually suffered from certain manufacturing defects, even then it is OP-2, being the manufacturer, who shall be liable and no liability is attributable to OP-1 because it is only a dealer.  It is, therefore, requested that the complaint may be dismissed qua OP-1 at least.
8.         On the other hand, learned counsel for OP-2 has contended that the complainant has failed to prove any manufacturing defect in the air bags of the car in question.  The accident occurred due to rash and negligent driving of the driver of the car. Moreover, it was not a head on collision and it was the driver side of the car which got struck against a tree.  Since it was driver side of the car which got struck against a tree, it was not a frontal collision.  The impact was right hand side of the car which was more than 30º impact angle.  Significant amount of impact was absorbed and no impact was detected by the sensors and, therefore, the air bags did not deploy.  The claim of the complainant has already been set to rest by the OPs when the car in question was repaired to his satisfaction. Instant complaint has become infructuous, therefore, the same may be dismissed accordingly. 
9.         However, from the appreciation of the facts and circumstances of the case, it becomes evident that the car in question did suffer from manufacturing defect and the air bags did not deploy when the accident took place. The complainant had incurred huge expenses for purchasing the car in question simply on account of the fact that the life of the occupant may be saved, in case some accident takes place. But, since the air bags did not deploy at the time of accident, the son of the complainant sustained injuries in the accident. Simply saying that the impact of the accident in question was more than 30º impact angle and the collision was not frontal and, therefore, the air bags did not deploy is not sustainable. In analogous set of facts before the Hon’ble National Commission, New Delhi in Revision Petition No.1014 of 2016 titled as Hyundai Motor India Ltd. Vs. Leela Shu & Anr., decided on 25.4.2016, the aforesaid contentions of dealer and manufacturer were turned down by Hon’ble National Commission. The District Forum below had allowed the complaint filed by the complainant directing OPs 1 and 2, either jointly or severally, to pay Rs.8,95,000/- to the complainant on account of mental pain and agony alongwith Rs.10,000/- as litigation expenses. The Hon’ble State Commission partly allowed the appeal and the OPs were directed to pay Rs.2,50,000/- instead of Rs.8,95,000/-. OP-1 went in revision petition before the Hon’ble National Commission which dismissed the revision petition and further imposed costs in the sum of Rs.1,00,000/- out of which Rs.75,000/- were directed to be paid to the complainant while Rs.25,000/- were ordered to be deposited in Consumer Legal Aid Account of the Commission through demand draft within 90 days from the date of the order.  Since both the pleas taken by OPs 1 & 2 were rejected in analogous set of facts by the Hon’ble National Commission, therefore, this Forum is also constrained to hold that the defence pleas taken by the OPs were without any merit and, as such, were not sustainable at law. 
10.         In view of the facts and circumstances of this case, in our considered view, the complainant is liable to be compensated for deficiency in service as well as unfair trade practice by the OPs.  The ends of justice would be fully met if the complainant is awarded the following reliefs:-

 (i)    Let OPs 1 & 2, jointly and severally, pay Rs.2,00,000/- to the complainant as compensation for mental agony and harassment caused to him;

(ii)    To pay to the complainant Rs.5,000/- as costs of litigation. 

11.         This order be complied with by OPs 1 & 2, jointly and severally, within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amount mentioned at Sr.No.(i) above, with interest @ 9% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(ii) above.
12.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
12/01/2017	[Suresh Kumar Sardana]	[Surjeet Kaur]	[S.S. Panesar]
hg	Member	Member	President