Sh. Prince Chopra resident of 447-L-Model Town, Jalandhar, Punjab 144001.

…… Complainant

V E R S U S

1.       Complaint against OP No.1 was dismissed vide order dated 10.3.2011

2.       Mr. Atul Aggarwal, Managing Director, Jaycee Automobiles Pvt. Ltd., Plot No.171, Phase-I, Industrial Area, Chandigarh.

3.       Mr. Benoit Tiers M.D. Audi India, Division of Volksuwagen Group Sales India Pvt. Ltd. 3, North Avenue, Level 3, Market Maxity, Bandra Kurla Complex, Bandra East, Mumbai-400051 (India)

4.       United India Insurance Company, Branch Office, Main Road, OPP. BDO Office, Sultanpur Lodhi-144626, Distt. Kapurthala, Punjab through its Branch Manager.

              … Opposite Parties

Complaint under Section 17 (wrongly mentioned as 11 & 12) of the Consumer Protection Act, 1986.

BEFORE:      JUSTICE SHAM SUNDER, PRESIDENT.

                        MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:     Sh. Puneet Sharma, Adv. for the complainant.

                   Complaint against OP No.1 stands already dismissed vide order dated 10.3.2011

                   Sh. V.K. Sachdeva, Adv. for OP No.2

                   Sh. Manish Jain, Adv. for OP No.3

                   Sh. Gaurav Bhardwaj, Adv. for OP No.4.

PER  JAGROOP  SINGH  MAHAL, MEMBER

                        Briefly stated, the complainant on 28.7.2008 purchased an Audi-Q7 car, from OP No.2, authorized dealer of OP No.1 for Rs.57,09,420/-.  It was stated that prior to purchase of the said car the complainant was highly elaborated by the OPs with regard to the technology and safety measures like air bag, superve (?) suspension (pneumatic and adaptive air suspension etc.).  But to his utter shock the said car after running only 646 kms. stopped in the middle of water logged road, when a bus passing by gave a splash of water on its bonnet, while the complainant was going to his office. The engineer of the OP No.2 was called who after inspecting the vehicle told that the engine of the car has been hung and suggested to take the vehicle to the workshop of OP No.2.  After investigating the vehicle for about 10 days OP No.2 prepared an estimate of Rs.7,04,413/-  for repairs and change in parts and also recommended for change of base engine estimating Rs.10,40,0640/-,  which was very shocking to the complainant as it was brand new car worth Rs.60.00 lacs and became defective after running only 646 kms. It was alleged that despite the vehicle was under warranty, the OP No.2  intimated him that hydro locking of the engine does not fall under the warranty and as such the complaint would have to bear the cost and recommended replacement of the engine assembly to avoid further complications, which he agreed in order to avoid further complications. The assertion of the complainant was that the OP No.3 refused to give certification certificate in respect of replacement of engine from the manufacture/OP No.1 due to which OP No.4 vide Annexure C-4 refused  his claim for replacement of the engine and the cost thereof was borne by him.   It was further alleged that the OP No.2 kept the car in its premises for about five months for repair. Thereafter he took delivery of the car under protest after paying for replacement of engine and parts and other sundry charges.  Thereafter, on 10.11.2009 when the brother of the complainant was travelling in the said car, it met with an accident and forcefully struck to a tractor trolley on its left side and then on the right side berm of the road and due to the severity of the accident the brother of the complainant got fracture on the right ribs. The averment of the complainant was that despite the severe accident, the highly spoken safety measure/feature particularly air bags did not work at the required time and the brother of the complainant fractured his right ribs. It was alleged that the complainant contacted OP No.3 regarding the malfunctioning of the air bags and safety systems and also wrote emails to the OPs on 19.11.2009 and 20.11.2009  but the OPs instead of giving any befitting answer to his query, were busy to put the responsibility from one to another office/centre of the OPs. Ultimately on 23.11.2011 a reply was received from Audi India Mumbai that there was no failure in the air bag system as no crash data was recorded in the sensory system as there was no frontal collision and it was accepted that the final collision resulted in the damage to running gear but stated that it did not require the protection of the air bags. It was alleged that the OP No.2 denying any error or defect with the vehicle, handed over an estimate of Rs.13,18,528/- for repair of the vehicle. Ultimately when the efforts of the complainant turned futile, he got a legal notice dated 14.12.2009 served  upon the OPs, which was replied by OP No2 and 3 but nothing fruitful was done.  Hence this complaint. 

2.                  Complaint against OP No.1 was dismissed vide order dated 10.3.2011 in view of the statement made by the Counsel for the complainant.

3.                  The OP-2 in its written reply admitted purchase of Audi-Q-7 car by the complainant but denied manufacturing defect in the car or deficiency on its part as alleged by the complainant. It was submitted that Audi-Q-7 is having impeccable features and proven excellent quality standards world over and goes through strict quality tests before selling to customer. It was denied if the car was stopped by mere splash of water on its bonnet. In fact the complainant negligently drove the car through heavy water logged road, thinking it to be  boat or a ship and on its halt in the water he kept on starting the engine due to which the water went inside the engine through the air suction pipe and the vehicle got hydro locked. It was pleaded that the complainant was informed about replacement of hydro locked engine, caused due to negligence of the complainant by overtaxing and mishandling the car which was beyond the purview of the warranty as per instructions of service manual provided to the complainant therefore, he would have to pay for the same. Thereafter on the agreement of the complainant the answering OP prepared two estimates one for repairing charges of the damaged engine and the other was towards replacement of the damaged engine. The complainant vide his email dated 5.9.2008 agreed to pay the charges for replacement of the engine. It was alleged that the vehicle met with an accident due to negligent and rash acts of the unauthorized driver and no FIR was lodged regarding the said accident, which shows that the vehicle was being driven in rash manner.  It was denied that the air bags failed to open at the required time owing to which the brother of complainant sustained injuries. It was submitted that the complainant himself admitted that the impact of the accident was on the left side of the vehicle, whereas the sensors are on the front of the vehicle and the side air bags works only when the first impact is on front of the vehicle which triggers the sensors and opens the airbags. Moreover as per manual book the airbags do not rule out the injuries but  it only reduce injuries. Denying all other material allegations of the complaint, a prayer has been made to dismiss the same with exemplary costs.

4.                  OP No.3 in its reply took preliminary objection that this Commission has no territorial jurisdiction to try the present complaint against it, as OP No.3 is situated outside its territorial jurisdiction. Further OP No.3 took almost identical pleas as were taken by OP No.2, pleading that there is no deficiency on its part and prayed for dismissal of the complaint.

5.                  OP No.4 in its reply submitted that being an insurer, its duty was only to indemnify the insured in case of any accident etc. keeping in view the terms and conditions of the policy. In the present case indemnification of the replacement of the engine was refused as the required certificate was not issued by OP No.1 and as per  terms and conditions of the policy, in the absence of certificate the claim could not be indemnified. However, a claim of Rs.2,53,705/- was paid to the complainant vide Annexure OP-4/1. It was further pleaded that thereafter till date the complainant himself did not give consent for repair of the vehicle and as such the proper survey of the vehicle could not be done as per directions of this Commission. Denying all other allegations of the complaint OP No.4 prayed for dismissal of the same with costs.   

6.                  Parties led evidence in support of their case.

7.                  We have heard the ld. Counsel for the parties and have gone through the evidence on record of the case carefully.

8.                  The OP No.3 moved an application on 20.7.2011 for placing on record a DVD giving a visual demonstration with regard to deployment of the airbags and the role of the seat belt. It was stated that the DVD was released after filing of the evidence and it could not place it on record. The complainant filed reply to the application and opposed the same. After hearing Counsel for both the parties, we allow the application because this evidence would be necessary for the just decision of the case. Accordingly the DVD is taken on record.

9.                  This complaint is regarding two incidents for each of which deficiency in service is alleged by the complainant. The first incident took place on 1.8.2008 when the car got hydro-locked. As per the complainant when his driver was driving the said car, he noticed some water accumulated on the road through, which other cars were passing. He also passed through the same but in the mean time a bus came from opposite side which gave a splash of water over the bonnet of the vehicle, due to which the car came to a halt in the middle of the water logged road. The car was taken out of water and was examined by the engineers of OP No.2. The contention of the complainant was that the car was brand new having run only 646 kilometers, on which he had spent Rs.60.00 lacs but it got struck in the water when the other cars were passing by it, which according to the complainant was a manufacturing defect. When the car was examined it was noticed that the engine was hydro-locked, which could be due to the reason that the complainant drove the car through water, which was deeper then the maximum depth of water through which the car could be driven. When it stopped in the middle of the water the driver of the complainant continued to start the engine time and again due to which it sucked water through the air pipe and the engine was hydro-locked. .

10.             The complainant has not produced any expert opinion to suggest if there was any manufacturing defect in the vehicle. Annexure OP-3/1 page 276 of owners manual shows that the maximum wading  depth is 500 mm for vehicles without pneumatic suspension or 535 mm for vehicles with adaptive air suspension. It was also advised to check the depth at the deepest point before approaching water. The driver is to drive not exceeding a walking pace, he should avoid stopping if possible and do not switch off the engine. The complainant in his complaint nowhere mentions, if he took care of these precautions while driving through the water. It is rather admitted that the car stopped in the middle of waterlogged road, which was not advised to stop. If the water entered the engine, it was therefore, due to the negligence of the driver of the complainant and it cannot be said to be a manufacturing defect. In such a case the Insurance Company, if any may pay the compensation for repair of the engine which it has already paid as mentioned in para No.4 of the reply filed by Insurance Company- OP No.4

11.             The learned Counsel for the Complainant has also argued that the OPs did not cooperate with him to get appropriate compensation from the Insurance Company in so far as the certificate was required from the manufacturer i.e. OP No.1, that the engine was beyond repair which they failed to issue due to which he could not claim the amount of Rs.10,40,060/- spent on replacement of the engine. The learned Counsel referred to the letter Annexure C-3 written to an official of the United India Insurance Company, which mentioned as follows:-

In my opinion, as an Authorised Audi Service station, the engine is damaged to the extent where it is not recommended to repair the same. So in this case I strongly recommend to replace the engine assembly as whole to avoid further complications/problems.

          However, when a manufacturer certificate was needed the OPs did not send the same and the OP No.4 therefore, refused to compensate the complainant for the said amount spent on replacement of the engine. As against it the learned Counsel for the OPs No. 2&3 have argued that the price of new engine was Rs.17.62 lacs but the same was afforded to the complainant at a price of Rs.9.98 lacs only. It is also argued that the OP No.2 wrote this letter Annexure C-3 to the Insurance Company in order to help the complainant to get the claim because the letter is initially addressed to Mr. Sharma at uiic.co.in i.e. United India Insurance Company-OP No.4 and if the Insurance Company did not accept his claim for replacement of the  engine they could not do anything more. As regards the certificate that the engine was beyond repair it could not be given because the engine was repairable and in this respect they had already issued an estimate
Annexure C-2 on 7.8.2008 of Rs.7,04,413.00 to be spent on repairs. However, the complainant  wanted replacement of the engine and the second estimate Annexure C-2 (colly) was given to him on which he was to spend Rs.10,40,060/-. The complainant therefore, opted for the replacement of the engine and no such certificate could be issued by OP No.2 that the engine was not repairable. Therefore, it cannot be said that there was any deficiency on the part of OPs No. 2&3 in this respect.

12.             The third grievance of the complainant with respect to the first incident is that in the estimate Annexure C-2 the OPs have mentioned the price of a connecting rod as Rs.13.080.00, whereas in the invoice Annexure C-5 the costs of rod has been mentioned as 78,480.00 per piece. The contentions of the complainant is that, it is unfair trade practice on the part of the OPs because in the first estimate they mentioned that replacement  of one connecting rod would cost Rs.13,080.00 but in the invoice C-5 they increased the value of the connecting rod to Rs.78,480.00 and reduced the number from 6 to 2. The learned Counsel for the OP No.2 has on the other hand argued that, in fact there is one pair of 6 connecting roads on each side of the engine. In Annexure C-2 the amount of one pair of six rods was mentioned to be 78,480.00. However, when the engine was opened it was found that it needed two sets of connecting rods, each containing six rods and therefore, in stead of giving the price of each rod they have mentioned the price of full set of 6 rods. According to it there was no unfair trade practice in this respect. Apart from that it is argued that in fact the complainant did not make any payment against the connecting rods mentioned in Annexure C-5 and therefore, whether price was Rs.13,080.00 or Rs.78,480.00, he did not suffer any  financial loss. Since he did not pay the amount and these rods were supplied free of charges, no deficiency in service or unfair trade practice can be alleged against the OPs. We find sufficient merit in this argument.

13.             It may be mentioned again for the sake of repetition that the engine, which was replaced was worth Rs.17.62 lacs. As per OP No.2 there were other repairs worth Rs.4,14,124.50 (Annexure C-5) and even after giving all rebates to the complainant he was liable to pay Rs.11,73,411/- as per the bill C-6 (colly).  However, the complainant paid only Rs.10,50,000/-  vide Annexure C-7 and a credit note of Rs.1,23,411/- was given to him vide Annexure C-6. There was therefore, no financial loss to the complainant and rather by paying Rs.10,50,000/- he got brand new engine worth Rs.17.62 lacs and also got repairs worth Rs.4,14,124.50. We are of the opinion that there was no deficiency on the part of the OPs.

14.             The learned Counsel for the complainant has also contended that the vehicle was shifted to the premises of OP No.2 on 7.8.2008 when the estimate Annexure C-2 was prepared, which was delivered to him about 5 months later on 9.1.2009 when he made the payment of Rs.10.50,000/- vide Annexure C-7. It is argued that the complainant was deprived use of the vehicle for a period of 5 months, which also is deficiency in service on their part. The learned Counsel for the OP No.2 has contended that when the complainant asked for replacement of the engine, which was to come from Germany, where it is manufactured, the supply order was placed by OP No.2 and when the engine was received, it was promptly fitted in the vehicle, which was delivered to the complainant. It is argued that the complainant was very well aware of this fact that the engine is to come from Germany and it would take time and there cannot be said to be any deficiency in service on the part of the OPs.

15.             The complainant took the delivery of the car on 9.1.2009 and appended a note therein that the OP No.2 has addressed all his concerns to his complete satisfaction and there was no further complaint pending on that day. The copy of the customer satisfaction note is annexed as Annexure OP-3/3. The complainant therefore, cannot allege deficiency in service subsequently, after he confirmed his satisfaction about the satisfactory service rendered by the OPs. We are therefore, of the opinion that the OPs cannot be said to be deficient in rendering service with respect to the first incident of hydro lock of the engine.

16.             The second incident is of 10.11.2009 when Rajan Chopra brother of the complainant was travelling in the car, it struck against a tractor trolley on its left side and then struck the berm of the road on the right side. According to the complainant the impact of the multiple collision was so severe that the vehicle incurred heavy damage on both its sides and also on the front where right wheel axle of the vehicle was broken and the vehicle came to a screeching halt. Rajan Chopra who was wearing seat belt got two rib injuries’/(wrongly mentioned as rims) fractured but none of the air bags of the vehicle opened to rescue the occupant. It was further mentioned that Rajan Chopra was admitted in the hospital and was diagnosed as having fracture on the right ribs, he was recommended medication  and extended bed rest with application of chest binder till the fracture of rib bones were healed up. The learned Counsel argued that when in such a heavy impact the air bags did not open, it was a manufacturing defect in the vehicle. This contention is opposed by the learned Counsel for OPs NO. 2&3. Each and every aspect of the accident has been assailed by them and in our view successfully.

17.             It was mentioned in para No.18 of the complaint that the vehicle was being driven at a speed of 110/120 km per hour. We are afraid if the speed at which the vehicle was driven was within normal limits prescribed by the authorities to drive on a national highway in Punjab. If the brother of the complainant was driving at rash speed he was inviting danger for himself. However, the condition of the vehicle shows that this contention of driving the car at 110/120 km per hour is incorrect as is evident from Annexure C-8 photographs of the vehicle. The vehicle was inspected by surveyor who submitted his report OP-4/6 and found the following apparent damage to the car :-

1.                  Front W/s Glass cracked.

2.                  Bumper broken

3.                  RS Fog Light and its Cover broken

4.                  RS & LS Head Light’s broken

5.                  LS RVM broken

6.                  RS & LS fender linings stretched/torn

7.                  RS Tyre badly torn and Alloy Wheel Rim broken

8.                  Show Grill broken

9.                  Inner RVM affected/hanging

10.             RS front wheel uprooted and lying separately

11.             RS front suspension comprising of suspension Arm, Drive shaft, Tie Rod, Tie Rod End, steering knuckle and shock absorber affected/broken/bent

12.             RS Front Brake pipe uprooted.

Body shell :

13.             Bonnet badly Panel dented/pressed. LS Fender and LS Front Door badly dented/pressed/punctured, LS Rear Door dented and RS Fender dented and uprooted.

          It shows that there was minor damage to the vehicle as is apparent from the photographs Annexure C-8. The vehicle cannot be said to have suffered a severe frontal or side collision.

18.               The Owners Manual C-9 (at page 59 of the complaint) gives the complete information about the accident and deployment of the air bag system. It is mentioned that front air bags are triggered in a severe frontal collision and the side air bags are triggered together if there is severe side collision. The report of the surveyor showing the damage and the photographs Annexure C-8 fully show that it was not a severe frontal or side collision. There was therefore, no occasion for the air bags to trigger. It therefore, cannot be said to be a manufacturing defect in the vehicle.

19.             The complainant has mentioned that his brother Rajan Chopra suffered severe injuries in the accident and his right ribs were fractured. It is also alleged that he was admitted in hospital but the complainant has not produced any record pertaining to the alleged admission of Rajan Chopra in the hospital on 10.11.2009. it was on the next day i.e. 11.11.2009 that Rajan Chopra appears to have gone to Patel Hospital and Dr. R.R. Sagar issued a certificate Annexure C-15(colly) to the following effect:-

                   Tab dolomite 1B.D.

                   Deep breathing exercise.

                   Bed rest x 3 weeks

          There is no mention in this certificate if Rajan Chopra was admitted in the hospital and if his ribs were fractured. However, subsequently on 10.4.2010 during the pendency of this complaint another certificate Annexure C-15 was obtained to the following effect:

This is to certify that Ranjan Chopra suffered from blunt trauma rt chest wall and diagnosed as fracture ribs clinically. However X-rays of this pt. were normal, because many undisplaced fracture or in complete fracture of ribs can show normal looking X-rays.

          X-ray reports were also enclosed with these documents, which according to the doctor were normal and there was no fracture of the bones visible therein. Even in Annexure 15 there is no mention if Rajan Chopra remained admitted in the hospital. The date of admission or the date of discharge have also not been given. It is therefore, clear that this accident has been blown out of proportion and a minor accident is being proclaimed as a severe collusion of the vehicle with tractor trolley. In such a situation the seat belts which complainant says, Rajan Chopra was wearing, were enough to protect him. It was therefore, not severe collision and the question of air bags being triggered did not arise. It therefore, cannot be said to be manufacturing defect in the vehicle.

20.             The complainant has not produced any expert evidence to suggest that in such a collision the air bags should have been deployed, in fact the air bags are meant to protect the driver and the passengers from severe injuries in a frontal or side collision but in the present case even without air bags being deployed no severe injuries were suffered by the driver i.e. Rajan Chopra, which itself suggests that it was a minor accident. On the other hand the OPs have produced a DVD on 20.7.2011 showing that the air bags are not deployed in such a situation.

21.             The learned Counsel for OP No.2 has also argued that the vehicle is lying in their premises since the date of accident, which is occupying their space in the workshop and therefore, they are entitled to charge Rs.500/- per day from the complainant for this parking. This demand was raised by the OP No.2  for the first time on 15.1.2010 vide Annexure C-18 when it sent a reply to the legal notice (Annexure C-17), which had been served on it by the complainant. Whether such a demand made through the reply to the legal notice would amount to an agreement between the parties in view of which the complainant would be liable to pay parking charges at the rate of Rs.500/- per day? Our reply to this question is in the negative. The OP No.2 had never informed the complainant when he parked the vehicle, that they would be charging any such parking fees nor the complainant had ever agreed to the same. This demand is therefore unjustified and cannot be accepted.

22.             The repairs of the vehicle have not been started for want of a green signal from the complainant. It would be open to the complainant to remove the vehicle from the premises of OP No.2 within thirty days or to request the OP No.2 to start the repairs and in that situation the OP No.4 would entertain the claim submitted by the complainant and pay the due compensation to him for the repair of the vehicle in accordance with the policy of insurance.

23.             In view of the above discussion, we are of the opinion that there is no merit in this complaint and the same is accordingly dismissed. Parties are left to bear their own costs of litigation.

          Copies of this order be sent to the parties free of charge.

Pronounced.

18^th November, 2011                                                                                  sd/-