1.      Heard Mr. Abhijeet Sinha, Advocate, for the appellant, Mr. Vipin Singhania, Advocate, for respondent-1 and Mr. Siddharth Sachar, Advocate, for respondent-2, through video conferencing.

2.      This appeal has been filed against the order of State Consumer Disputes Redressal Commission, Maharashtra, at Nagpur, dated 19.11.2015, passed in Consumer Complaint No. 09 of 2008, whereby the complaint was dismissed.

3.      Vinod Premchand Rohida (the appellant) filed Consumer Complaint No. 09 of 2008, for directing M/s. Skoda Auto India Pvt. Ltd. and Navnit Cars Private Ltd. (the respondents) to pay Rs. one crore as compensation within reasonable period, failing which they may be directed to pay interest @ of 2% per month, on this amount, cost of the litigation and any other relief which may be deem fit and proper in the circumstance of the case.

4.      It has been stated in the complaint that M/s. Skoda Auto India Pvt. Ltd. (opposite party-1), who was manufacturer of Skoda Octavia car gave lucrative advertisements as “Obsess with quality since 1895. Engineered with passion, built with love, lowest fuel consumption etc.” “TDI engine features direct like injection at high pressure through 5 nozzles, directly into respective combustion chamber. The combustion air compressed by turbo charger and immediately cooled, reached the chamber through a specially shaped inlet squirrel port, positioned in the piston crown”.  Attracted with the above literatures, the complainant purchased a Skoda car, Model  Skoda Octavia 1.9, Variant L & K 1.9 TDI, Engine No. ALHE09173, Chassis No. TMBAGATU76A006047 and Registration No. MH-31 BT-007, for Rs.13,84,299/- on 20.03.2006, from Navnit Cars Private Ltd. (opposite party-2), who was an authorised dealer of M/s. Skoda Auto India Pvt. Ltd., for his personal use as well as for use of his family, with the financial assistance of Magma Shrachi Finance Limited, Hill Road, Ramnagar, Nagpur. The complainant and his brother Kishor knew car driving and had driving licences, in his family. He also employed one driver namely Rajesh Yadav s/o Kishori Lal Yadav, who also had driving licence, issued by R.T.O. Nagpur. At the time of the purchase, Private Car Package Policy, was obtained from Oriental Insurance Company Ltd., which was renewed on 07.03.2007 and was effective on the date of incident. The complainant maintained the car meticulously from the date of its purchase, in the best way. No new thing was done or installed in the car. The car was regularly sent for servicing to the authorised service centre of the company on 21.08.2006, 11.12.2006 and 16.04.2007, i.e. due dates for free service. The complainant did not notice any defect till the date of incident nor had the service centre pointed out any defect at the time of service, in the car. Kishor, the brother of the complainant, went to the house of his father-in-law at Rampuri Comp, Amravati, on 29.05.2007, along with his wife Smt. Reshma, daughters Saniya Rohida (11 years) and Tanisha Rohida (2 years), in the aforesaid car, with the driver Rajesh Yadav. They were returning from Rampuri to Nagpur on 31.05.2007, at about 1.30 PM, in the car. At about 2.30 PM, the car reached near village Talegaon, Shiwar, (at a distance of one kilometre from the place of mishap), the driver noticed that the smoke was coming from the bonnet of the car. The driver stopped the car in the side of the road. The driver Rajesh Yadav and Kishor, his wife and daughters came out to the car hurriedly. The driver tried to open the bonnet but found that the bonnet was locked. This created panic in their mind. They immediately opened the dickey and brought out the luggage from it. Various goods and original papers remained inside the car. They tried to open the gates and windows of the car but all of it were centrally locked and could not open. In the meantime, they found that fire ball was dropping below the engine portion and within a short time, the car began burning and burnt within 20-25 minutes. Kishor informed the complainant on his mobile phone about the incident. The complainant informed the Insurer, immediately. The complainant along with the Surveyor of the Insurer rushed to the place of incident in his Qualis car (Registration No. MH-31 AG-8611) and reached there on 31.05.2007 at about 4.30 PM. Kishor and the driver went to Police Out Post Talegaon and gave a report of the incident. The police visited the spot, recorded statement of the driver and Kishor and after investigation prepared Panchnama on 31.05.2007 between 4.00 PM to 4.30 PM. The opposite parties were informed about the incident and they took the car to their workshop. The complainant suffered a loss of Rs.15 lakhs in the incident but the opposite party kept silence about the loss of the complainant. Then legal notices through registered post were given to them on 12.08.2007 but they did not reply it. In the meantime, Insurance Company made settlement of insurance claim for Rs.10,99,000/- on 12.12.2007 and paid the amount to the Financer. Thereafter, reminder legal notices through registered post were given to them on 20.05.2008 and the complaint was filed on 02.06.2008, claiming compensation of Rs. one crore for mental pain and agony.    

5.      The respondents filed their joint written reply on 25.08.2008 and contested the complaint. It has been stated that M/s. Skoda Auto India Pvt. Ltd. (opposite party-1) had a vast experience of manufacturing car, since 1885. Every car launched by opposite party-1 have received acclamation as the best car by various autonomous entities like “Most Technologically advanced car of the year” by CNBC TY18 Auto-car, “Executive car of the year” by NDTV, Profit car India, “Auto-tech of the year 2006” by Overdrive. Automotive Research Association of India (ARAI), an expert authority, used check every car of its design, safety measure and worthiness to Indian road conditions as well as satisfy all the norms prescribed under Motor Vehicles Rules and Regulations before coming in market. They adopt quite elaborate procedures and different experts check it. After their approval, the manufacturer is granted permission to sell the car in market. Skoda Laura car sold to the complainant, which was a top model vehicle, was also given certificate by ARAI. The car was equipped with latest and most ultra-modern technology. It was engineered with passion and built with love. After purchase, the complainant tampered with electric system of the car, close to loop one and installed a non-genuine fitment of a stereo amplifier in the boot of the car, at an unauthorised service centre. Opposite party-2 pointed out this fact to the complainant but he did not pay any heed to it at that time. Fire must have taken place due to short circuit with electric system of the car, from tampered point. The complainant was himself responsible for the fire incident. The car sold to the complainant was a top model of the range and fully equipped and did not require any additional fitment. By tampering the electrical system, the complainant had breached the terms of the warrantee, as such it had become void. The opposite parties were not responsible for the damages. It has been denied that the car was suffering from any manufacturing defect. The damage caused to the complainant has already been reimbursed by the Insurance Company as such the complaint was not maintainable. The complaint has been filed with malafide intension to defame the manufacturer and extract money from them.                                           

6.      The complainant filed Rejoinder Reply in June, 2012, in which  tampering in the electrical system close to loop one and installation of a non-genuine fitment of a stereo amplifier in the boot of the car was denied. He filed documentary evidence i.e. copy of brochure, car driving licence of the driver, order of acceptance, receipt voucher, Insurance Policy, receipt of Insurance Package Policy, letter of Finance Company, delivery memo, Registration Certificate, Invoices of First, Second and Third service and its bills, Spot Panchnama along with statement of driver and Kishor as recorded by the police, copies of the notices and postal receipts, discharge voucher of Insurance Company, copies of second notice and its postal receipts. Various Photographs of the car taken by Kishor at the time of burning and by the Surveyor of Insurer, after the incident. A copy of News Report dated 11.04.2011, showing that Skoda car of Sonal Kalra, Senior Journalist of Hindustan Times also caught fire automatically while being driven at Rajauri Garden, West Delhi. Affidavits of Evidence of Vinod Premchand Rohida and Kishor Rohida. The opposite parties filed Affidavit of Evidence of Nagesh Sadashiv Sangale, Legal Manager of Skoda Auto India Pvt. Ltd. and documentary evidence i.e. Certificate issued by Automotive Research Association of India and remarks given by independent associations.

7.      State Commission, by judgement 19.11.2015, found that it was proved that prior to the incident, the car was running smoothly as per expectation of the complainant and no defect was noticed in it nor any complaint was made. Had there been any manufacturing defect in design or assembling the parts of the car, it might have exhibited its sign in normal performance but the complainant did not make any such complaint before the incident as such manufacturing defect in the car is not proved. On the date of incident, the car was not in the management and control of the opposite parties, as such, the principle of “res ipsa loquitur” is not applicable in the present case. There was no expert evidence relating to cause of the fire as such cause could not be attributed to manufacturing defect. The opposite parties have stated that by tampering in the electrical system, the complainant had breached the terms of the warrantee, which has not been proved to be false. On these findings, the complaint was dismissed. Hence this appeal has been filed. 

8.      In the appeal, the complainant filed a copy of Internet News of November, 2008 and photograph, showing that Skoda car of Vineet Kumar, of Greater NOIDA was also caught fire automatically, while being driven only 500 meter only. The opposite parties filed literatures relating to major reasons of vehicles catching fire i.e. (i) various gases that gathered in the fuel tank while the vehicle is exposed to direct and extreme sunlight for long duration. (ii) Vehicle fires in Mumbai have more to do with the rodent menace than other mechanical and human factor. (iii) Rotten fuel lines, leaking gas line or diesel fuel into hot engine parts and leaks to fuel system are most common cause of vehicle fires. (v) Excessive heat and forgetting or neglecting maintenance and (vi) Over loading electrical circuits. 

9.      I have considered the arguments of the parties and examined the record. Admittedly, there is no expert report relating to cause of fire. The complainant stated that he did not notice any defect in the car till the date of incident nor had the service centre pointed out any defect at the time of service of the car. After burning of the car, no expert report could have been obtained in respect of cause of fire as such during pendency of the complaint no effort was made for obtaining expert report. State Commission has drawn adverse inference due to not producing the expert report, relating to the cause of fire, although after burning of the car, no expert opinion could have been obtained relating to the cause of fire. It is well settled that best evidence rule does not apply in civil proceeding which has to be decided on preponderance and probabilities. For reference judgements of Supreme Court in Sunita Vs. Rajasthan SRTC, (2020) 13 SCC 486 and IFFCO TOKIYO General Insurance Company Ltd. Vs. Pearl Beverages Ltd., 2021 SCC OnLine SC 309 are quoted. Expert report may be best evidence. But in the absence of expert report, State Commission ought to have appreciated the other evidence on record, for deciding the controversy. In present case, Kishor, who was present on the spot at the time incident, filed his Affidavit of Evidence and Photograph of the burning car, from which it is fully proved that the car was burnt during drive automatically. Kishor was not cross examined by the opposite parties. State Commission has failed to examine the evidence on record and record any finding on its basis. The opposite parties relied upon judgments reported in Punjab Urban Planning & Development Authority Vs. Shiv Saraswati Iron & Steel Mills, (1998) 4 SCC 539, Rangammal Vs. Kuppuswami, (2011) 12 SCC 220 and Branch Manager, Indigo Airlines Vs. Kalpana Rani, (2020) 9 SCC 424 and this Commission in Revision No. 1854 of 2011 Gopal Aggarwal Vs. Metro Motors (decided on 17.12.2019), which do not help them as the complainant, in present case, has discharged his burden of proof. 

10.    The complainant purchased car on 20.03.2006. The car was regularly sent for servicing to the authorised service centre of the company on 21.08.2006, 11.12.2006 and 16.04.2007, i.e. due dates for free service. At the time of third service, meter reading of the car was noted as 22780 kilometre, which shows that the car had run average of about 1600 kilometre per month. In the complaint, it has been stated that the complainant had maintained the car meticulously from the date of its purchase, in the best way and no new thing was done or installed in the car. These facts are proved from the evidence produced by the complainant i.e. various Service Invoices and his Affidavit of Evidence. In none of the Service Invoices, it has been noted that either any part was changed or any new thing was installed in the car. On the date of incident, it had run for about one hour continuously. From the photograph taken at the time of incident, it is proved that fire caught in engine first. These facts have been proved from the Affidavit of Evidence of Kishor, who was present on the spot. Immediately after the incident, the Local Police reached the spot and prepared Panchnama, in which statement of the driver Rajesh Yadav was also noted. On the basis of newspaper report and internet report, it has been submitted that Skoda car used to burn during drive, which shows manufacturing defect in Skoda car. None of the witnesses were cross-examined by the opposite party as such from the evidence on record, it is proved that the car was burnt during drive of about one hour automatically on 31.05.2007.

11.    The opposite parties took plea that after purchase, the complainant had tampered with electric system of the car, close to loop one and installed a non-genuine fitment of a stereo amplifier in the boot of the car, at an unauthorised service centre. Opposite party-2 had pointed out this fact to the complainant but he did not pay any heed to it at that time. Fire must have taken place due to short circuit with electric system of the car, from tampered point. These facts have not been noted in any of the Service Invoices. The opposite parties have not produced any evidence of a mechanic of Service Centre to prove these facts nor cross examined the complainant’s witnesses on these point as such the defence taken by the opposite party was not proved. State Commission has wrongly shifted the burden of proof on the complainant and has stated that the defence taken by the opposite parties has not been proved to be false. Although the burden was upon the opposite party to prove their defence. The opposite parties filed various literatures relating to major reasons of vehicles catching fire, i.e. (i) various gases that gathered in the fuel tank while the vehicle is exposed to direct and extreme sunlight for long duration. (ii) Vehicle fires in Mumbai have more to do with the rodent menace than other mechanical and human factor. (iii) Rotten fuel lines, leaking gas line or diesel fuel into hot engine parts and leaks to fuel system are most common cause of vehicle fires. (v) Excessive heat and forgetting or neglecting maintenance and (vi) Over loading electrical circuits. From the photograph taken by Kishor at the time of incident, it is proved that the fire caught in engine first, as such none of the probabilities mentioned above are attracted, in the present case, where fire was started from the engine and not from the diesel/petrol tank. Last service of the car was done on 16.04.2007 and no deficiency was found in the car, like leakage of fuels etc. 

12.    The complainant pressed the principle of “res ipsa loquitur”, for the cause of fire being attributed to manufacturing defects in the car. The principle of “res ipsa loquitur” has been judicially recognised in India throughout. It has also been statutorily recognised under Section 4, 113, 113-A, 114 and 114-A of Evidence Act, 1872, giving power of “may presume” to the Court. According to the complainant as he has proved the incident of fire in the car during drive, initially from the side of engine although the car was almost new and well maintained. In the absence of any other probable cause of fire, it has to be attributed to manufacturing defects in the car, applying the principle of “res ipsa loquitur”, means “thing speak for itself”.

13.    Supreme Court in Shyam Sunder Vs. State of Rajasthan, (1974) 1 SCC 960, held that the maxim “res ipsa loquitur” is resorted to when an accident is shown to have occurred and cause of accident is primarily within the knowledge of the defendant. The fact of the incident may, sometimes, constitute evidence of negligence committed by the defendant. In Syed Akbar Vs. State of Karnataka, (1980) 1 SCC 30, has held that that as a rule mere proof of an event has happened or an accident has occurred, the cause, which is unknown, in not evidence of negligence. But the peculiar circumstances, constituting the event or accident in particular case, may themselves proclaim in concordant, clear and unambiguous voice the negligence of some body as the cause of the event or accident. It is in such cases the maxim “res ipsa loquitur” may apply, if cause of the accident is unknown and no reasonable explanation as to the cause is coming from the defendant. In Ravi Kapoor Vs. State of Rajasthan, (2012) 9 SCC 284, has held that this doctrine of “res ipsa loquitur” serves two purposes-One that an accident may be in its nature to be more consistence with it being caused by negligence for which the opposite party is responsible than by any other causes and that in such case, mere fact of the accident is prima facie evidence of such negligence. Secondly it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove, how the accident had occurred. In IFFCO TOKIO General Insurance Company Ltd. Vs. Pearl Beverages Ltd., 2021 SCC OnLine SC 309, has held that principle of “res ipsa loquitur” as such appears to be opposes when what is in question is whether the driver was under the influence of alcohol. It may be another matter that though the principle as such is inapplicable, the manner in which the accident occurred may along with other circumstances point out to the driver being under the influence of alcohol. The counsel for the opposite parties also cited judgments of Supreme Court in Pushpabai Purshottam Udeshi Vs. M/s. Ranjit Ginning & Pressing Co. Ltd., (1977) 2 SCC 745 and Mohammed Anyuddin alias Miyam Vs. State Of A.P., (2000) 7 SCC 72, in which also principle of  “res ipsa loquitur” has been applied for holding the defendant as guilty of negligence. 

14.    On the principle of “res ipsa loquitur”, cause of fire, is attributed to manufacturing defects in the car inasmuch as the opposite parties have failed to prove their defence that the complainant had tampered electrical system of the car or any other cause for fire. The counsel for the opposite party has relied upon judgements of this Commission in Maruti Udyog Ltd. Hasmukh Lakshmi Chand, 3 (2009) CPJ 229, in which after 11 years of purchase of the car, plea of manufacturing defect was not accepted. Classic Automobiles Vs. Lila Nand Mishra, 1 (2010) CPJ 235, in which, it has been held that the dealer cannot be held as responsible for manufacturing defect. F.A. No. 42 of 2015 Sanjay Jain Vs. Honda Cars India Ltd. (decided on 09.05.2016) in which after 4 years of purchase of the car, plea of manufacturing defect was not accepted. These cases cannot be read against the appellant in present case.

15.    The counsel for the opposite parties next argued that the complainant has already obtained claim of the burnt car in question from Insurance Company as such the present complaint was not maintainable. He relied upon the judgment of this Commission in A.B. Motors Private Ltd. Vs. Admiral Impex Pvt. Ltd. 2 (2010) CPJ 317 and judgement of Supreme Court in Reliance General Insurance Company Ltd. Vs. Shashi Sharma, (2016) 9 SCC 627.

16.    Supreme Court in Global Motor Service Ltd. R.M.K. Veluswami, AIR 1962 SC 1, has held an aggrieved person can claim pecuniary compensation and non-pecuniary compensation. There is no duplication in awarding both the compensation. In Helen C. Rebello Vs. Maharashtra SRTC, (1999) 1 SCC 90 and Reliance General Insurance Company Ltd. Vs. Shashi Sharma, (2016) 9 SCC 627 has held the application of general principle under the common law to estimate damages cannot be invoked for computing compensation under the Motor Vehicles Act, 1988. Further, the “pecuniary advantages” from whatsoever source must correlate to the injury or death caused on account of motor accident. Insurance claim obtained, cannot be included in the income of the deceased.

17.    Present complaint has been filed claiming compensation for mental agony and physical harassment due to deficiency in service of the part of the opposite parties, inasmuch as firstly defective vehicle was supplied and secondly in spite of warrantee being effective, the vehicle was not attended after the accident. The insurance claim was for loss of the vehicle, i.e. for pecuniary compensation. The complaint, which is for non-pecuniary compensation, was maintainable; there is no duplication of the claim.

18.    Now the question arises about the quantum of compensation. The complainant has claimed Rs. one crore. There is no basis for this exorbitant claim. As deficiency in service on the part of the opposite party is proved as such, it will be appropriate to award Rs. 5 lakhs as non-pecuniary compensation. Skoda Auto India Pvt. Ltd. (respondent-1) is liable to pay compensation. 

O R D E R

In view of aforementioned discussions the appeal is allowed with cost of Rs. one lakh. The order of State Consumer Disputes Redressal Commission, Maharashtra, at Nagpur, dated 19.11.2015, passed in Consumer Complaint No. 09 of 2008, is set aside. Complaint No. 09 of 2008 is partly allowed. Skoda Auto India Pvt. Ltd. (respondent-1) is directed to pay compensation of Rs. 5 lakhs with interest @ 9% per annum from the date of accident and the cost of Rs. one lakh to the complainant, within two months from today.