PER:
Charanjit Singh, President;
1 The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.
2 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 and 13 against the opposite parties on the allegations that the complainant purchased a new Maruti Suzuki Ciaz SHVS VDI+ through its dealer Jaycee Motors, Amritsar on 15.9.2015 vide invoice No. 003/VSL15000558 bearing Chassis No. MA3FXEB1S00163283 and engine No. D13A-2634899 for Rs. 8,92,045/- for own personal and domestic use. The above mentioned vehicle was then got registered with RTO vide RC Number PB02CT7677 and the same is under full warranty provided by opposite party till 14.9.2019 which includes two years of standard warranty plus two years of extended warranty for which the complainant paid extra from his pocket. The said vehicle is also fully insured by National Insurance. The opposite party No.1 is the manufacture of the above named vehicle. The complainant who holds a valid driving license specifically opted for a model with ABS and airbags for additional safety whereas opposite party also offers models without airbags. It was on 1.9.2017 at about 10.45 PM evening when the complainant was returning back home from Ludhiana, when the complainant entered Beas suddenly he saw stray cattle in front of his car, but despite pressing brakes the complainant could not evade collision and hit into the stray cattle, resulting in collision and rolling of car for at least 3-4 times. To the utter surprise of the complainant and despite the safety feature none of the airbags got inflated. The vehicle suffered damage on three sides after impact due to which it tumbled completely and rolled over to the fields. The complainant suffered injury on head, neck and arms. The vehicle has safety features with 2 airbags but at the time of impact none of the airbags opened. This clearly shows the failure of safety System and airbags in the vehicle which led to failure of security system to work properly at the time of accident. The failure of security features of the vehicle at the time of accident could have led to extensive injury to the occupant and a fatal threat to life. The complainant, who was driving the car, was well within the speed limits and was wearing the seat belt as well. The vehicle was towed and delivered to the opposite party No.2 on the next day which was 2.9.2017 in the evening and the complaint also gave the information of the collision to P.S Beas on 2.9.2017 vide general diary number 20. The complainant wrote an email to Maruti Suzuki complaining about the non opening of airbags, which amounted to a deficiency in service and manufacturing defect but despite feeling sorry about the same the opposite party gave lame excuses. Non inflation of airbag was due to a manufacturing defect in the car in question and an acute deficiency in service by the opposite party. The gravity of deficiency is such that it could have cost the life of complainant. The complainant has been contacting the Maruti dealership at Amritsar from the last 2 weeks, but the defects in the vehicle could not be resolved despite their best efforts. The vehicle is well within warranty provided by the company and under extended full warranty which is valid till 14.9.2019. The company's failure to rectify the inherent faults with the vehicle over such a long time has raised many security concerns about non functional life saving systems in this vehicle which can be a threat to life & therefore, this vehicle is unusable and completely undependable. The opposite parties are guilty of rendering deficient services to the complainant herein and have miserably failed in discharging their responsibility at the time of transaction. The complainant has prayed the following reliefs:-
(i) The opposite parties may kindly be directed to release the amount of Rs. 8,92,045/- spent by the complainant in buying a car with manufacturing defect immediate effect;
(ii) Pay Rs. 5,00,000/- as compensation.
(iii) Opposite parties be directed to pay the adequate cost of present litigation.
3 After formal admission of the complaint, notice was issued to Opposite Parties and opposite party No. 1 appeared through counsel and filed written version and contested the complaint by interalia pleadings that this commission does not have the jurisdiction to entertain the subject matter in dispute. Section 175 of the Motor Vehicles Act, 1988 states a specific bar on accidental cases to be filed in any other court other than Motor Accident Claim Tribunal. Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court. The complainant has impleaded this opposite party No.1 without any reason, cause of action or justification. The present complaint is bad for mis-joinder and non joinder of parties. The OP No. 1 is not necessary party to the complaint. The complainant has failed to disclose any specific cause of action in the present complaint against this opposite party. Also the complainant has not impleaded Jaycee Motors Pvt. Ltd. where the vehicle has been sent after the alleged accident. The allegations made in the complaint do not constitute any consumer dispute between the complainant and OP No. 1. The complainant is not a Consumer' of the opposite party No. 1 as defined U/s 2 (1)(d)(ii) of The Consumer Protection Act, 1986. The complainant cannot be allowed to raise any claim against the OP No. 1 which is not covered under ambit of warranty. The complainant neither entered into any contract for sale of goods (car) nor hired any service/repairs for consideration with the PP No. 1. The complainant without any reason has impleaded this OP No. 1 to the present case. The complaint has been filed without any cause of action against the OP No. 1. The complainant has failed to set out any case for deficiency in services as per section 2(1)(g) or defect in goods as per section 2(1)(f) or unfair trade practice as per section 2(1)(r) of the Act against the OP No.1 The obligation of OP No. 1 under the warranty is which is part and parcel of the sale contract is specific as set out in the Warranty Policy Clause 3] as enumerated in the owner's manual and service booklet. The OP No. 1 is only responsible for providing warranty services during the warranty period i.e. 2 years or 40,000 kms, from the date of sale. The said warranty is subject to certain terms and conditions and limitations as set out in Owner's manual & service booklet. The vehicle met with an accident on 1.9.2017, hence the warranty is not applicable in this case as per the Clause 4(4) being an accidental case. There is no deficiency in services, neglect or default on the part of opposite party No. 1 of any nature. The vehicle met with an accident on 1.9.2017 and the vehicle was sent to the workshop of Jaycee Motors Pvt. Ltd. on 4.9.2017. It is further submitted that the complainant to his full satisfaction has accepted the Insurance claim and has given approval for the repairs to be carried out. The complainant has concealed this material fact from this Commission which clearly indicates the malice on the part of the complainant to obtain undue gains from the OP No. 1. It is further submitted that vide email dated 13.10.2017 the complainant was duly apprised that the air bags did not deploy because the impact did not trigger the air bags to inflate. The complainant has concealed this material fact from this commission in order to obtain undue gains from the OP No. 1. The complainant had been making demands and taking the shelter of this commission and trying to put undue pressure on OP No. 1. Jaycee Motors Pvt. Ltd. is an independent entity having its own MOA and carry out business on their own invoice & sale certificate. The opposite party No.1 does not sell its products to any individual under its invoice or sale certificate. The opposite party No.1 sells its products to its authorized dealers and the relationship between the opposite party No.1 and the dealer is that of Principal - to - Principal basis only as per the dealership agreement executed between the opposite parties. As per clause 5 of the dealership agreement, the dealer shall not be deemed to be the agent or representative for any purpose and the dealer shall not describe or represent itself as such. The complainant entered into an independent transaction for sale of the vehicle in question with Jaycee Motors Pvt. Ltd.' to which the opposite party No.1 was neither privy nor received any consideration for the same. The vehicle in question had a manufacturer's warranty for 24 months or 40,000 kms, whichever is earlier. The complainant availed an extended warranty which starts after the expiry of manufacturer's warranty and is valid upto another 40,000 kms or 2 years, whichever is earlier. The extended warranty is not a mirror image of primary warranty and the benefit of the same depends on the compliance of the terms of primary warranty and instructions enumerated in the Owner's Manual & Service Booklet. The complainant to his own will and volition opted for the vehicle in question. The vehicle in question met with an accident on 1.9.2017. The complainant saw stray cattle in front of the vehicle but despite pressing the brakes the complainant could not evade collision and hit stray cattle resulting in collision and ROLLING OVER OF THE CAR 3-4 times. The statement of the complainant clearly indicates that the accident took place due to other reasons and not due to any defect in the vehicle. The warranty will not be applicable to the vehicle in question as per Clause 4(4) as enumerated in the Owner's Manual & Service Booklet which clearly states that 'Clause 4(4): This warranty shall not apply to any repairs or replacement required as a result of accidents or collision'. There was no defect in the vehicle. The said vehicle comes with many safety features to minimize injury on accidents/ impact. Safety features provided in the vehicle doesn't guarantee complete safety to the passengers but are just preventive measures. The passengers have to follow the safety instructions provided in the owner's manual. In frontal collision, the crash sensors will detect rapid deceleration, and if the controller judges that the deceleration represents severe frontal clash, the controller will trigger the inflators. The front air bags as provided in the vehicle are designed to inflate only in severe frontal collisions and deployment of airbag would depend upon the seriousness of the frontal collision on the effective area of the vehicle. Front air bags may not inflate when the impact is absorbed since the collision object moved, vehicle body deformed, or collision angle was greater than about 30 degrees from the front. It will also not inflate in case of rear impacts, ROLLOVERS or minor frontal collisions, since they would offer no protection in those type of accidents as enumerated in the Owner's Manual & Service Booklet. In this case as admitted by the complainant the vehicle rolled over 3-4 times. Further the vehicle was inspected after the alleged accident. Upon inspection it was observed that there was no deformation/damage to the structural members. Left Hand and Right Hand apron members had not suffered any damage. The damage to the vehicle was due to roll over of the vehicle. Since said impact did not cause the sensor to detect any signal for deployment of airbags, the same did not inflate. The Impact sensors were found to be in perfect ok condition and they were not triggered. There was no reason or occurrence that may have caused the airbags to inflate. The damage to the vehicle was not due to any defect but due to accident and rolling over of the vehicle in question. Here it won't be out of place to mention that no system can prevent all possible injuries that may occur in an accident. These conditions have been clearly enumerated in the Owner's Manual. Since no material has been placed on record to substantiate the claim of the complainant, the plea of the complainant of non deployment of airbag during the alleged accident is baseless and erroneous. The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same.
4 The opposite party No. 2 appeared through counsel and filed written version and contested the complaint by interalia pleadings that the complainant has got no cause of action against the opposite party No.1, the present complaint filed by the complainant is an abuse of process of law. The complainant is not the consumer as defined under the act as the vehicle is under the Hire Purchase agreement with the HDFC Bank Ltd. the complainant has made the allegations of cheating and fraud in the complaint as such this commission does not have the jurisdiction to try and entertain the present complaint. The complainant has taken back the said vehicle repaired in the satisfactory condition and has shown no remorse or any objection or any protest while taking the delivery of the said vehicle and the complainant was satisfied with the report and technical inspection by the expert team of the opposite party No. 1 showing no manufacturing defect or otherwise, the said fact has been mischievously concealed by the complainant in the present complaint as such the complaint is liable to be dismissed on this score only. Regarding airbags not getting inflated the complainant was made aware of the technical aspect by the expert team of the manufacturer after duly inspecting the said vehicle in the presence of the complainant and the copy of the same was provided to the complainant and the complainant was satisfied with the said report and the said problem were occurred due to faulty driving conditions and not due to any of the alleged manufacturing defect in the vehicle. The documents submitted thereto are fake documents and have nothing to do with the present controversy and are procured documents to give weight to the cooked up story. The complainant never adopted the proper driving protocol. the complainant is properly replied to every communication made and the complainant was made aware of the technical aspect by the expert team of the manufacturer after duly inspecting the said vehicle in the presence of the complainant and the copy of the same was provided to the complainant and the complainant was satisfied with the said report. There is no deficiency on the part of the opposite party No. 2 rather the complainant has filed the false and frivolous complaint with the malafide intention. The complainant has taken back the said vehicle repaired in the satisfactory condition and has shown no remorse or any objection or any protest while taking the delivery of the said vehicle and the complainant was satisfied with the report and technical inspection by the expert team of the opposite party No. 1 showing no manufacturing defect. The opposite party No. 2 has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version the opposite party No. 2 has placed on record affidavit of Suresh Aggarwal Partner OP2/1, affidavit of Dheeraj Sharma Ex. OP2/2.
5 To prove his case, Ld. counsel for the complainant has tendered in evidence affidavit of complainant Ex. CW1/A, copy of invoice Ex.C-1, copy of RTO registration certificate Ex. C-2, copy of driving license Ex. C-3, copy of doctor’s prescription Ex. C-4, copy of pictures of accidental car Ex. C-5, Copy of DDR with P.S. Beas Ex. C-6, copy of emails sent to Maruti Suzuki Ex. C-7 to C-9, affidavit of complainant Ex. CW3/A, affidavit of Sh. J.S. Malhotra Ex. CW4/A, expert report Ex. C-10 photographs of Car Ex. C11. Ld. counsel for the opposite party tendered in evidence affidavit of Sh. Harshal Arun Choksy Ex. OP1/A alongwith documents Ex. OP to OP and closed the evidence.
6 We have heard the Ld. counsel for the parties and have gone through the record on the file.
7 The combined and harmonious reading of documents and pleadings as well as written arguments placed on record is going to prove on record that the complainant purchased a new Maruti Suzuki Ciaz SHVS VDI+ through its dealer Jaycee Motors, Amritsar on 15.9.2015 vide invoice No. 003/VSL15000558 bearing Chassis No. MA3FXEB1S00163283 and engine No. D13A-2634899 for Rs. 8,92,045/- for his personal and domestic use. The said vehicle was then got registered with RTO vide RC Number PB02CT7677 and is under full warranty provided by the opposite party till 14.9.2019. The complainant opted for a model with ABS and airbags for additional safety whereas the opposite party also offers models without airbags. On 1.9.2017 at about 10.45 PM evening when the complainant was returning back home from Ludhiana, when the complainant entered Beas suddenly he saw stray cattle in front of his car, but despite pressing brakes the complainant could not evade collision and hit into the stray cattle, resulted in collision and rolling of car for at least 3-4 times. But to the utter surprise of the complainant and despite the safety feature none of the airbags got inflated. The said vehicle suffered damage on three sides after impact due to which it tumbled completely and rolled over into the fields. As such, the complainant suffered injuries on head, neck and arms. The said vehicle has safety features with 2 airbags but at the time of accident none of the airbags opened. This clearly shows the failure of the safety System and airbags. Further the complainant asserted that he was driving the car within the speed limits and was wearing the seat belt as well. The said matter was reported to the P.S Beas on 2.9.2017. Thereafter, the complainant wrote an email to Maruti Suzuki complaining about the non opening of airbags, which amounted to a deficiency in service and manufacturing defect. Non inflation of airbags was due to a manufacturing defect in the car and an acute deficiency in service by the opposite party. The complainant has been contacting the Maruti dealership at Amritsar from the last 2 weeks, but the defects in the vehicle could not be resolved despite their best efforts. The opposite parties are guilty of rendering deficient services to the complainant, as such, they are liable for the same.
8 The opposite party No. 1 contended that commission does not have the jurisdiction to entertain the subject matter in dispute. Section 175 of the Motor Vehicles Act, 1988 states a specific bar on accidental cases to be filed in any other court other than Motor Accident Claim Tribunal. Further the complainant has not impleaded Jaycee Motors Pvt. Ltd. where the vehicle has been sent after the alleged accident. However, later on Jaycee Motors Pvt. Ltd. was impleaded as opposite party No. 2. The obligation of OP No. 1 under the warranty is which is part and parcel of the sale contract is specific as set out in the Warranty Policy Clause 3] as enumerated in the owner's manual and service booklet. The said vehicle was sent to the workshop of Jaycee Motors Pvt. Ltd. on 4.9.2017 and the complainant has accepted the insurance claim to his full satisfaction and has given the approval for its repair. It was further contended that the complainant was duly apprised that the airbags did not deploy because the impact did not trigger the airbags to inflate. Jaycee Motors Pvt. Ltd. is an independent entity having its own MOA and carrying out business on their own invoice & sale certificate. The relationship between the opposite party No. 1 and the dealer is that of Principal - to - Principal basis only. The opposite party No. 1 further contended that the vehicle which was plied and rolled over for 3-4 times is due to some other reason and not due to some defect in the vehicle. The said vehicle comes with many safety features to minimize injury on accidents/ impact. Safety features provided in the vehicle doesn't guarantee complete safety to the passengers but are just preventive measures. The passengers have to follow the safety instructions provided in the owner's manual. In frontal collision, the crash sensors will detect rapid deceleration, and if the controller judges that the deceleration represents severe frontal clash, the controller will trigger the inflators. The front air bags as provided in the vehicle are designed to inflate only in severe frontal collisions and deployment of airbag would depend upon the seriousness of the frontal collision on the effective area of the vehicle. Front air bags may not inflate when the impact is absorbed since the collision object moved, vehicle body deformed, or collision angle was greater than about 30 degrees from the front. It will also not inflate in case of rear impacts, ROLLOVERS or minor frontal collisions, since they would offer no protection in those type of accidents as enumerated in the Owner's Manual & Service Booklet. Further suggested that in this case as admitted by the complainant the vehicle rolled over 3-4 times. The accidental vehicle was inspected after the alleged. Upon inspection it was observed that there was no deformation/damage to the structural members, Left Hand and Right Hand apron members had not suffered any damage. The damage to the vehicle was due to roll over of the vehicle. Since said impact did not cause sensor to detect any signal for deployment of airbags, the same did not inflate. The Impact sensors were found to be in perfect ok condition and they were not triggered.
9 The opposite party No. 2 contended that the complainant is not a consumer as defined under the act as the vehicle is under the Hire Purchase agreement with the HDFC Bank Ltd. Further the complainant has made the allegations of cheating and fraud in the complaint as such this commission does not have the jurisdiction to try and entertain the present complaint. The complainant has received back the said vehicle repaired in the satisfactory condition and has shown no remorse or any objection or any protest while taking the delivery of the said vehicle and the complainant was satisfied with the report and technical inspection by the expert team of the opposite party No. 1 showing no manufacturing defect or otherwise, the said fact has been mischievously concealed by the complainant in the present complaint as such the complaint is liable to be dismissed on this score only. Regarding airbags not getting inflated the complainant was made aware of the technical aspect by the expert team of the manufacturer after duly inspecting the said vehicle in the presence of the complainant and the copy of the same was provided to the complainant and the complainant was satisfied with the said report and the said problem were occurred due to faulty driving conditions and not due to any of the alleged manufacturing defect in the vehicle. The documents submitted thereto are fake documents and have nothing to do with the present controversy and are procured documents to give weight to the cooked up story. . The complainant was properly replied to every communication made and the complainant was made aware of the technical aspect by the expert team as such, there is no deficiency in service on the part of the opposite party No. 2.
10 The opposite party No. 1 has taken the objection that as per Section 175 of Motor Vehicle Act, there is specific bar on accidental cases to be filed in the Motor Accident Claim Tribunal only and no civil court as well as any other court has jurisdiction to entertain the question relating to the claim for compensation. But we are not agree with the opposite party No. 1 as this present complaint has been filed for the manufacturing defect in the car and deficiency in services on the part of the opposite party No. 1, therefore, this commission has got the jurisdiction to try and entertain the present complaint. There is no dispute regarding the warranty of the vehicle. The complainant has also obtained the extended warranty by paying extra money.
11 The opposite party No. 1 has taken the objection that the complainant has accepted the insurance claim. But the consumer has got the car repaired on insurance money would not impact the quantum of damages or replacement of the vehicle.
12 As per opposite party No. 1, the complainant was duly apprised that airbags did not deploy because impact did not trigger the airbags to inflate. Further, the opposite party No. 1 has stated in their reply that Maruti Suzuki Company has a relationship with the dealer as principal to principal basis. But we are not agree with the plea of the opposite party No. 1 because in the present complaint, the complainant is praying for refund of money as the said vehicle was having manufacturing defect, as such, for any manufacturing defect, the manufacturing company is always liable.
13 The complainant has purchased the said car for the main reason that this particular model has safety features including the airbags but the complainant suffered the injuries due to non deployment of the airbags but the opposite party cannot escape from the liability by saying that there was no severe impact of force and as such, airbags were not deployed at the time of accident. 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. He simply knows that whenever an accident took place the airbags will be deployed immediately and as such, the consumer buys such type of cars. The opposite parties cannot take the plea that deployment of airbags would depend upon the seriousness of the frontal collision on the effective area of the vehicle. Front airbags may not inflate when the impact is absorbed since the collision object moved, vehicle body defomed or collision would be greater than 30 degree from the front. The opposite party has placed on record annexure ‘A’ as owner’s manual and service booklet whereby it is written that front airbags are design to inflate only in severe frontal collision they are not design to inflate in rear impacts, side impacts, rolled over and minor frontal collision. The version of opposite party is falsify on the stand taken by the expert i.e. J.S. Malhotra B.E. Mechanical and the photographs which are placed on file which clearly shows that the vehicle has been damaged from the various sides like front right side, left side of the car as well as back side of the car and if in such conditions the airbags did not deploy at the time of accident indicates that there is some manufacturing defect. The complainant has placed on record the expert report of J.S. Malhotra as Ex. C-15 whereby, he asserted that the impact imminent as per the documents and photographs should have triggered the sensor of airbags to make them open immediately. Even if the vehicle would not have rolled over and damaged would have due to any sideway impact resulting in to the damage as per photographs that impact to have resulted in to effective opening of airbags of the vehicle. If the same did not open due to the impact as per sequence of events of the accident, the same is surely due to defective airbags / defective sensors / or due to defective accessories thereof and also due to improper design or poor workmanship at the time of manufacturing of the vehicle in question and the same can be safely covered within the meaning of manufacturing defect.
14 However, the opposite party has also placed on record the copy of the report by Rishab Sharma as Ex. C-9 in which he has given the report regarding the non deployment of airbags at the time of accident and as per this report he stated that we have thoroughly examined and analyzed the vehicle as regard non-deployment of airbags at the time of accident and further observed that there is no deformation of structure (longitudinal member) after the accident, it is thus suspected that impact might have not been severe enough to deployed the airbags and then maneuvered hit the divider- which caused the tyre to burst and lead to vehicle rolled over. But, we are not agree with this report as the expert himself is admitting the burst of tyres of the car. For a prudent man it may be a very severe hit where the tyre of the car was burst but there was no deployment of airbags. Even, if in such a collision where the tyre of the car was burst and there was non deployment of airbags it indicates that surely there was the manufacturing defect in the car. As per this report the damage in the vehicle front right headlamp, RH hood and RH Fender are sufficient for the deployment of airbags. It is pertinent to mention here that this expert belongs to opposite party No. 1 and he should have completely satisfied the complainant. He has given sufficient reasons for the non deployment of airbags.
15 The complainant has placed reliance upon civil appeal No. 3001 of 2022 (arising out of Petition of special leave to appeal (civil) No. 4881 of 2021) titled Hyundai Motor India Limited Vs Shailendra Bhatnagar by Hon’ble Supreme Court of India in which similar points have been discussed regarding the non deployment of airbags and the consumer was given relief by replacing the car with manufacturing defect. Para Nos. 13 and 14 of the citation is reproduced as follows:-
13 The damages awarded against the appellant may have gone beyond the actual loss suffered by the respondent and may not represent the actual loss suffered by him in monetary terms. But the provision of Section 14 of the 1986 Act permits awarding punitive damages. Such damages, in our view, can be awarded in the event the defect is found to have the potential to cause serious injury or major loss to the consumer, particularly in respect of safety features of a vehicle. For instance, defective safety feature in a vehicle has to be distinguished from a dysfunctional “courtesy light”. The manufacturer should be under strict and absolute liability in respect of the latter. Compensation in the form of punitive damages ought to have a deterrent effect. We also refer to the principles detailing the factors guiding quantification of liability laid down by a Constitution Bench of this Court in the case of M.C. Mehta and Another v. Union of India and Others [(1987) 1 SCC 395]. In this case it has been opined: “32. We would also like to point out that the measure of compensation in the kind of cases referred to in the preceding paragraph must be corelated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise.”
14 The aforesaid decision arose out of a case involving the death of an individual and injuries to several others in an industrial accident. But in our opinion, in the subject dispute also the same principle can be extended. We are dealing with a case where in a collision, the airbags did not deploy. The complainant, driving the vehicle, suffered substantial injuries as a result thereof. The impact of the collision was such that it would have been reasonable for the respondent to assume that there would have been deployment of the airbags. The safety description of the goods fell short of its expected quality. The content of the owners’ manual does not carry any material from which the owner of a vehicle could be alerted that in a collision of this nature, the airbags would not deploy. Purchase decision of the respondent complainant was largely made on the basis of representation of the safety features of the vehicle. The failure to provide an airbag system which would meet the safety standards as perceived by a carbuyer of reasonable prudence, in our view, should be subject to punitive damages which can have deterrent effect. And in computing such punitive damages, the capacity of the manufacturing enterprise should also be a factor. There was no specific exclusion clause to insulate the manufacturer from claim of damages of this nature. Even if there were such a clause, legality thereof could be open to legal scrutiny. But there is no reason for dilating on that aspect in this case. That question doesn’t arise here.
The present complaint is squarely covered under the ibid citation.
16 The opposite party has relied upon Revision Petition No. 1588 of 2006 and appeal No. 28 of 2006 decided on 15.4.2010 titled A.B. Motors Private Ltd. Vs Admiral Impex Pvt. Ltd. and Ors. The facts and circumstances of this citation are not similar to the present complaint and the present complaint is not covered under this citation. The opposite party has also relied upon 2014 SCC Online NCDRC 926 titled Smt. Brijesh Saxena Vs Skoda Auto A.S. and others and Revision petition No. 827 of 2004 with revision petition No. 1318 of 2004 and appeal NO. 11 of 2003 decided on 26.5.2009 titled “Maruti Udyog Ltd. Vs Harmukh Lakshmichand and Ors.” whereby it was held that no technical expert was engaged by the complainant who inspect the car soon after the accident and examined that their airbags actually had deployed or not. This citation is not relevant to the present complaint as there was question as to whether the airbags were deployed or not. In the instant complaint, there is a question of non deployment of airbags due to accident and in civil appeal No. 3001 of 2022 (arising out of Petition of special leave to appeal (civil) No. 4881 of 2021) (supra) ibid it has been held that in such like cases technical expert report is not necessary.
17 The whole of the case of the opposite party No. 1 revolves around the report of expert Sh. Rishib Sharma Ex. OP-4 but the said report is not duly supported with the affidavit of said Rishib Sharma. In the absence of which no evidentiary value can be made on the report submitted by the surveyor. Reliance in this connection has been placed upon Manikant Vs. New India Assurance Co.Ltd. 1(2012) CPJ 88 (NC) of the Hon’ble National Commission wherein it has been held that the surveyor did not appear in court and subject himself to cross examination nor was any affidavit filed by him to prove his report . Producing a document in court does not by itself constitute proving the document. It has to be backed by credible evidence.
18 From the above said discussion, it is very much clear that the despite the car hit with the stay cattle and the car badly damaged from the front right side, right side as well as from the back side, there was non deployment of airbags resultantly the complainant suffered injuries and non deployment of airbags at the time of accident is a manufacturing defect. Report of technical expert supported by his affidavit is also on record to prove that there was manufacturing defect in the car as such, this report has evidentiary value under Indian Evidence Act. Moreover, this is a case of Res Ispa Loquitur where the photographs of the damaged vehicle is placed on record which clearly shows the impact of the accident on the vehicle and the complainant approached the opposite party No. 1 but the opposite party No. 1 has not pay any heed to the request of the complainant it amounts to deficiency in service also and unfair trade practice on the part of the opposite party No 1.
19 In view of above said discussion we allow the present complaint and the opposite party No. 1 is directed to pay Rs. 8,92,045/- i.e. price of the car in question to the complainant. The complainant has also been harassed by the opposite party No. 1 for a long time, as such the complainant is also entitled to Rs. 35,000/- as compensation on account of harassment and mental agony and Rs 15,000/- as litigation expenses. However, the complainant will return the car to the opposite party No. 1 after completing the necessary formalities at the time of making payment by the opposite party No. 1 to the complainant. Opposite Party No. 1 is directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of filing the present complaint till its realisation. Complaint against the opposite party no. 2 is dismissed. Copy of order be supplied by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.
Announced in Open Commission
24.11.2022
