Haryana

Ambala

CC/76/2020

Mrs Sudesh Saini - Complainant(s)

Versus

M/s Kanav Motors - Opp.Party(s)

Navneet Singh Malhotra

01 Dec 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case No.	:	76 of 2020
Date of Institution	:	11.03.2020
Date of decision	:	01.12.2023

Mrs. Sudesh Saini aged about 60 years w/o Sh. Ram Pal R/o H.No. 6251/52, Chouthai Ahata, Opposite Post Office, Ambala Cantt. District Ambala.

          ……. Complainant.

Versus

1. M/s Kanav Motors Pvt. Ltd. Showroom & Workshop (H.O.), G.T. Road, Karnal-132001 through its authorized signatory.
2. M/s Kanav Motors Pvt. Ltd. Showroom & Workshop (Branch) Ambala Jagadhri Road, Village Tepla, Ambala Cantt.0-133001, through its authorized signatory.
3. Ford India Pvt. Ltd. 3^rd Floor, Building 10C, DLF Cyber City, DLF Phase II, Sector 24, Gurugram-122002, through its authorized signatory.

                                                                                   ….…. Opposite Parties

Before:       Smt. Neena Sandhu, President.

                      Smt. Ruby Sharma, Member.           

 

Present:      Shri Navneet Singh Malhotra, Advocate, counsel for the   complainant.

                   Shri S.R.Bansal, Advocate, counsel for the OPs No.1 and 2.

                    OP No.3 already ex parte.     

Order:        Smt. Neena Sandhu, President.

                   The complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’), praying for issuance of directions to them to refund the price of the vehicle in question i.e. Rs.7,30,311/- and to pay Rs.10 lacs as compensation along with interest @ 18% till the final payment for suffering business loses, mental pain and agony, in the interest of law and justice.

2.             Brief facts of the case are that the complainant  purchased a vehicle Ford Ecosport 1.5 D Ambiente MT Panther Black bearing Engine number HR73468 Chassis No.MAJAXXMRKAHR73468 from OP No.2 for sale consideration of Rs.7,30,311/- on 23-10-2017 vide invoice number VSCHI5025 KN. The said vehicle was manufactured by OP No.3 and OPs No.1 and 2 are the authorized showrooms of OP No.3. The said vehicle was equipped with airbags and it was assured by the OPs that these airbags will be opened automatically and shall protect them in case of any accident. On 27-03-2018 when the said vehicle was being driven by the son of complainant and she was sitting in the said vehicle, it met with an accident near Murthal Flyover, Sonipat, as one swift vehicle applied sudden breaks and due this, vehicle of complainant hit with the said vehicle and from behind one truck also hit the vehicle of complainant from rear side. Due to this accident, vehicle of complainant suffered huge damages from front as well as rear side. This accident was major one and entire body shell  suffered huge damage. Both the complainant and her son were wearing seat belts but it was so unfortunate that at the time of impact, both the airbags of the vehicle did not open, which resulted into mental shock. The said airbags did not open due to mechanism and defective airbags. Under those circumstances, the complainant served legal notice dated 18.04.2018 to the OPs to compensate him but to no avail.  Hence, the present complaint.
3.           Upon notice, OPs No.1 and 2 appeared and filed written version wherein they raised preliminary objections to the effect that  this complaint is not maintainable; the complainant has failed to adduce any expert report to prove that the airbags of the vehicle were defective; this complaint is not maintainable because the complainant has already got insurance claim and got her vehicle repaired for which another complaint is  pending before this Commission; the question of airbags has to be answered by OP No.3-manufacturer only; the complaint is also not maintainable as there is no bodily injury to any of the passenger at the time of accident etc. On merits, it has been stated that the Airbags are to be opened under some terms and conditions i.e. Speed of the Vehicle, Apply of Seat belts, impact of speed of accident etc. but in this case the complainant has not mentioned about the cause of accident; hence the complainant be directed to submit cogent and expert report about the accident in question. The accident of the car in question had taken place on 27.03.2018; as one Swift Car applied sudden brakes and due to this the vehicle of the complainant hit with the said Car from behind by one truck and also hit the vehicle of the complainant from the rear side, hence no question of opening of Airbags is possible. The complainant is asking for the refund of the price of the vehicle but he has not filed any documentary proof for financial losses, as alleged; since it was the duty of the complainant to prove her case. Rest of the averments of the complainant were denied by OPs No.1 and 2 and prayed for dismissal of the present complaint with costs.
4.           Upon notice, none appeared on behalf of the OP No.3 before this Commission, therefore, it was proceeded against ex-parte vide order dated 07.04.2022.
5.           Learned counsel for the complainant tendered affidavit of complainant as Annexure CW1/A and affidavit of Shri Gaurav Saini, aged about 37 years wife of Shri Ram Pal R/o H.No.6251/52, Chouthai Ahata, Opposite Post Office, Ambala Cantt as Annexure CW2/A alongwith documents Annexure C-1 to C-13 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OPs No.1 and 2 tendered affidavit of Bishan Singh, Works Manager, Village Tepla, Ambala Cantt.  as Annexure OP-1/A alongwith document Annexure OP-1 and closed the evidence on behalf of OPs No.1 and 2
6.           We have heard the learned counsel for the complainant and learned counsel for the OPs No.1 and 2 and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that since the airbags of the vehicle in question did not open at the time of accident which occurred due to huge impact, the said airbags suffer from mechanical defect and as such with such defect, the vehicle cannot be plied on road therefore refund of the price paid be ordered in favour of the complainant.  He further submitted that by selling the vehicle with defective airbags, the OPs are deficient in providing service, negligent and adopted unfair trade practice. 
8.           On the contrary, the learned counsel for the OPs No.1 and 2 submitted that since the complainant and other occupants of the vehicle at the time of accident were not wearing seatbelts and also, at the same time, the deployment of airbags depends upon certain conditions, i.e. Speed of the Vehicle, Apply of Seat belts, impact of speed of accident etc. which was not so in the present case, therefore, there was no mechanical defect in the said airbags and as such the complainant is not entitled to any relief.
9.           Since neither the fact regarding purchase of vehicle by the complainant from OPs No.1 and 2 nor the accident which took place in the manner referred in the complaint; nor non-opening of the airbags at the time of said accident are in dispute, as such, the only moot question which falls for consideration in the present case is, as to whether, the complainant is entitled to get any relief in the matter or not. It may be stated here that to writhe out of their liability, it has been vehemently contended by learned counsel for the OPs No.1 and 2, the airbags could not be opened because firstly the occupants of the vehicle including the complainant were not wearing seat belts and secondly the impact of the accident was not so huge.
10.           First coming to the contention raised by the learned counsel for the OPs No.1 to 2 that the airbags could not be opened because the occupants of the vehicle including the complainant were not wearing seat belts, it may be stated here that no evidence to prove that the occupants of the vehicle in question were not wearing seat belts at the time of accident has been placed on record and as such this bald contention raised by OPs No.1 and 2 has no value in the eyes of law.
11.           As far as contention raised by learned counsel for the OPs No.1 and 2, that the airbags could not be opened because the impact of the accident was not so huge, it may be stated here that this contention is also of no help to OPs No.1 and 2. Admittedly, the vehicle was sold with front airbags and admittedly there was frontal as well as rear damage to the vehicle in the said accident but the airbags did not deploy. The counsel for  OPs No.1 and 2 though contended that the impact of the collision was not sufficient to activate the sensor which in turn would have resulted in deployment of the airbags, yet,  when we peruse the contents of order dated 19.12.2022, Annexure OP-1 passed by this Commission in CC No.192 of 2020 filed by the complainant seeking insurance claim in respect of the vehicle in question out of the said accident, it is clearly coming out that the complainant had paid an amount of Rs.3,26,626/- to the workshop against repair of the vehicle against which the Surveyor appointed by the insurance company had assessed the payable loss to the tune of Rs.2,94,924/-. This fact cannot be disputed by OPs No.1 and 2 as they themselves have relied upon this order dated 19.12.2022, Annexure OP-1. Under these circumstances, the quantum of amount spent on the repairs of vehicle and assessed by the Surveyor afore-discussed, leave no doubt with this Commission to presume that it was a major accident with huge impact as a result of which, the vehicle in question suffered heavy loss. Even otherwise, a similar controversy has already been put at naught by the Hon’ble Supreme  Court in Hyundai Motor India Limited vs Shailendra Bhatnagar on 20 April, 2022, CIVIL APPEAL NO. 3001 OF 2022, wherein also the plea taken by the manufacturer/dealer of the vehicle that the impact of the collision was not sufficient to activate the sensor which in turn would have resulted in deployment of the airbags, was negated and the compensation awarded to the consumer was upheld. Relevant part of this order is reproduced hereunder:-

“……..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 car ­buyer 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.

If the reliefs granted in a consumer complaint fits any of the statutory provision contained in sub clause (1) of Section 14 of the Act, it would be well within the power and jurisdiction of the Forum to pass directions irrespective of the fact as to whether specifically certain reliefs have been claimed or not, provided that facts make out foundations for granting such reliefs. In any event, it is within the jurisdiction of the said forum to mould the reliefs claimed to do effective justice, provided the relief comes within the stipulation of Section 14(1) of the Act. We find that the relief granted to the respondent comes within the statutory framework. We accordingly do not want to interfere with the decision of the National Commission. We do not find the reasoning of the Commission or the operative part of the order awarding damages to be perverse. We do not need the aid of the ratio of the three authorities cited before us pertaining to motor accident claim to sustain the decision under appeal. We are also of the view that the directions issued against the appellant by the State Commission and upheld by the National Commission cannot be said to have failed the test of proportionality. We hold so as we find the subject­ defect to be of such nature that the provisions relating to punitive damages ought to be attracted against the appellant.

We accordingly dismiss the appeal. Interim order passed in this matter shall stand dissolved…”

12.           It is coming out from order dated 19.12.2022, Annexure OP-1 that the complainant has got her vehicle repaired and is plying the same, thus the prayer made for refund of the price of the vehicle in question is not tenable, hence, rejected. However, this fact cannot be denied that due to non-deployment of airbags, the complainant suffered mental shock and her hopes regarding safety features in her vehicle also got dashed to the ground when the airbags did not get deployed. Thus, mental agony and physical harassment was caused to the complainant at the hands of the OPs. Under these circumstances, we are of the considered view that if we award compensation to the complainant to be paid by the OPs in the matter that will meet the ends of justice.
13.           In view of the aforesaid discussion, we hereby partly allow the present complaint and direct the OPs, to pay lumpsum compensation to the tune of Rs.60,000/- to the complainant. It is further directed that OPs shall comply with the aforesaid directions, jointly and severally, within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs shall pay interest @8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 01.12.2023

 

	(Ruby Sharma)	(Neena Sandhu)
	Member	President