Punjab

Ludhiana

CC/15/665

M/s A.Star Clothing - Complainant(s)

Versus

Padam Cars Pvt.Ltd. - Opp.Party(s)

Abhay Pal ADv.

02 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 665 of 09.11.2015

Date of Decision          :   02.02.2017

 

M/s.A Star Clothing, 4545, Street No.5, Mahavir Jain Colony, Sunder Nagar, Ludhiana through its Partner Ankush Dhir s/o Sh.Pardeep Kumar Dhir r/o #104, Surya Vihar, Ludhiana.

….. Complainant

Versus 

1.Padam Cars Private Limited, V&PO Jugiana, Main GT Road, Dhandari Kalan, Ludhiana.

2.Renault India Private Limited, (Head Office), ASV Ramana Towers, #37-38, 4^th Floor Venkatanarayana Road, T. Nagar, Chennai.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :       Sh.A.P.Bector, Advocate

For OP1                         :       Sh.Rajeev Abhi, Advocate

For OP2                         :       Ex-parte

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant purchased one Duster car of Renault Company bearing registration No.PB-10-EK-0334 from OP1 on 17.10.2013 for Rs.11,85,135/-. OP1 is the authorized dealer of OP2. After purchase, complainant started using the car on assurance that it has total security equipments/safety features. That car met with an accident on 21.6.2015, when the complainant along with his family members were going to Jalandhar. The car met with an accident near Lovely Professional University, G.T.Road, Phagwara. Balloons/air bags in the car were supposed to open on account of impact of the accident, but they did not open and as such, manufacturing defect in the car is alleged. A tow-van was called after the accident for bringing the car to Ludhiana in the premises of OP1. Lacs of rupees were spent for availing the benefit of safety features as per assurances of the company, but those features did not work as per necessity at the time of accident. Officials of Ops did not visit the house of the complainant for inspecting the accidental vehicle. On 27.6.2015, Sh.Kuldip Kumar Dhir, uncle of the complainant sent an email to customer care of Renault Company for disclosing about the incidence and non-functioning of the airbags. Reply was received that team will contact  the complainant shortly. Email on 4.7.2015 again was sent and reply of the same was received on 10.7.2015. Valuer and surveyor disclosed through writing as if repair cost of the car will be of Rs.6,50,000/- excluding taxes. Even reply was received to the effect that concern of the complainant has been forwarded to the concerned department. Emails on 13.7.2015 and 14.7.2015 even were sent. Insurance Company declared the loss of the vehicle as total loss. Through email dated 17.7.2015 received from Neetu Chawla, an official of Renault Company it was disclosed that deployment of airbags is dependent on various factors like rate of deceleration, intensity of impact etc. Through that reply, it was also disclosed as if technical team has inspected the vehicle especially relating to Air-bags Control Module operation and all the related parameters. No abnormality in the design specification was found by the team as per that reply. As per that reply, no manufacturing defect was there. Due to the accident, vehicle has gone non working. Request was submitted for replacement of the car with new one, but to no effect. By pleading adoption of unfair trade practice on the part of Ops, prayer made for directing Ops to pay compensation amount of Rs.11,85,135/-. Even Rs.5 lac claimed on account of mental and physical harassment.

2.                In written statement filed by Op1, it is pleaded interalia as if complaint is not maintainable because complainant is not a consumer; complicated question of law and facts are involved requiring elaborate evidence and as such, Civil Court alone is competent to try the matter. Moreover, OP1 is authorized dealer and authorized service station and not the manufacturer and as such, complaint against OP1 for the alleged manufacturing defect is not maintainable. It is claimed that complainant has sent the car in question for accidental repair to OP1 and thereafter, on his request, job card was prepared. Complainant has not paid even a single penny for the work done by OP1. Claim of the complainant in respect of damage to the car was settled by the insurance company as per information provided by the complainant on total loss basis. OP1 only prepared the estimate of cost of repair as per the instructions given by the complainant. That was done free of cost and as such the complainant is not a consumer of OP1. Car in question was sold by OP2 to OP1 and OP1 being the authorized dealer, sold the same to the complainant on 17.10.2013. This car was purchased after having driving test and satisfying about the condition and quality specifications.There was no defect in the car in question. The car was driven upto the distance of 40200 Kms after purchase up till 21.6.2015. Had there been any manufacturing defect, then the vehicle would not have travelled the distance of 40200 Kms in less than 20 months approximately. Vehicle in question was sold to the complainant in same condition, in which, it was received by OP1 from the manufacture i.e. OP2. This vehicle after accident was sent to OP1 for repair on 28.6.2015 because of OP1 being the authorized repairer and service provider of the manufacturer. Total estimate for repair was assessed at Rs.6,60,944/- on 28.6.2015. Expected date of delivery after repair was mentioned as 15.7.2015. Copy of RO estimate was handed over to the complainant. Complainant was informed through email dated 10.7.2015 that approval for starting the repair work of the car required and cost of repair will be around Rs.6,50,000/- excluding taxes. Complainant vide email dated 13.7.2015 sent to OP2 informed that OP1 had submitted the estimate referred above. This car was not got repaired from OP1 even after opening the job card. Entire grievance of the complainant is regarding non operation of the balloons at the time of accident. That grievance is against OP2 and not against OP1. O2 vide email dated 17.7.2015 informed the complainant that opening of the air bags is dependent upon various factors like rate of deceleration, intensity of impact etc. The vehicle was thoroughly inspected by the technical team of OP2, who submitted report that there was no manufacturing defect in the car in question sold by OP1 to the complainant. The Technical Expert Team appointed by OP2 found as under:-

“Major impact observed on front left side of the vehicle, damage observed on bumper, front support, radiator, condenser, intercooler and suspension system. Protection bar found fitted in the vehicle and observed bolted with chassis.

No damage observed on Cowl top area.

Seat belts operation checked, observed OK, no friction or damage marks on the belt strap.

No damage observed in passenger cabin, dashboard area and A-Pilars.

Anti-lock braking system(ABS) parameter checked, no DTC observed. Status and parameter are found as per the specified values.

All the values of speed sensor equal, indicates that the slippage not happened in the wheels during the accident. Airbag system checked, found impact detected, indicates airbag sensing elements were in operation and detected the impact, condition of impact were not severe to deploy the airbags.

Our analysis demonstrates that the accident it’s not a consequence of any vehicle components failure and the origin of the loss of control and the accident is to be looked for another cause.

Conclusion:-

“The facts and the observations made during the investigation indicate that the ABS, Steering, Steering and airbag were functioning well and without any faults before the accident.

The deceleration force generated from front left side impact was not significant to trigger both airbags fitted in this Duster.

Therefore, Renault manufacturer responsibility cannot be involved in this accident.”

Copy of email was in this respect was received from OP2 by OP1. Complaint alleged to be bad, due to non joinder of necessary parties because the insurance company, with whom, the car was insured has not been impleaded as party. M/s A Star Clothing is neither a registered partnership firm nor Shri Ankush Dhir is the registered partner. In view of this, it is claimed that the complaint is not filed by competent person. Rather, Mr.Ankush Dhir has no locus standi to file the complaint and as such, complaint filed on behalf of M/s A Star Clothing deserves dismissal. Claim of the complainant already stands settled and paid to the complainant by the insurance company. The amount from the insurance company received in full and final settlement of the claim on total loss basis. So, complainant is estopped by his act and conduct from filing this complaint. Even complainant admits that he has received the claim from the insurance company. Each and every other averment of the complaint denied.

3.                OP2 is ex-parte in this case.

4.                Counsel for the complainant tendered in evidence affidavit Ex.CA of complainant along with documents Ex.C1 to Ex.C7 and thereafter, closed the evidence.

5.                On the other hand, counsel for OP1 tendered in evidence affidavit Ex.RA of Sh.Gagan Brar, Cluster Head of OP1 along with documents Ex.R1 to Ex.R7 and then closed the evidence.

6.                Written arguments submitted by OP1 alone, but not by the complainant. Oral arguments of counsel for parties addressed and those were heard. Records gone through minutely. 

7.                Ex.C1 to Ex.C5, the copies of emails correspondence shows that the grievance was projected by the complainant with OP2 to the effect that balloons fitted in the purchased Duster car did not open, despite the fact that the vehicle stood totally smashed in the accident that occurred on 21.6.2015. Further, through Ex.C3, it was disclosed as if the estimate of Rs.6,50,000/- has been prepared by the dealer i.e. OP1 and the insurance company likely to declare it as a case of completely damaged vehicle. After payment of this amount, the vehicle will belong to the insurance company as per contents of Ex.C3. It is not disputed that the complainant has got the claim from the insurance company regarding accidental loss to the vehicle in question. In response to the above said emails correspondence, OP2 vide Ex.C5 disclosed that technical team appointed by it properly inspected the vehicle and found that Airbag Control Module operation and all the related parameters were in accordance to the design specifications and without any abnormality. So, this correspondence Ex.C5 placed on record establishes that no manufacturing defect was found by the technical team appointed by OP2. Further, through Ex.C5, complainant was informed that deployment of airbag is dependent on various factors like rate of deceleration, intensity of impact. So, it is not a case, in which, OP2 the manufacturer, did not bother for finding the cause of non operation of the airbags in the accidental damage. It is not denied by the Op1 that airbags were not fitted in the car in question, but bone of contention remains as to whether the accident impact was such as the same was to pave way for opening of the airbags.

8.                Even if photographs Ex.C7 may be showing that loss to the vehicle in question from the front side took place due to breakage of the bumper in the middle and beneath in the middle, despite that said impact was not on such        part as would have impinged the sensor, fitted for making the balloons to        open.

9.                In correspondence Ex.R1 addressed by OP2 to the complainant, it was found that major impact observed on front left side of the vehicle resulting in damage to the bumper, front support, radiator, condenser, intercooler and suspension system. Despite this damage in the front portion, damage was not observed on Cowl Top area as per the contents of Ex.R1. Even seat belts operation was checked and the same was found OK because no friction or damage marks were found on the belt strap. No damage was observed in the passenger cabin, dashboard area and A-Pillars. So, damage to the car after accident occurred in the bonnet portion and not in the cabin portion. In the anti-lock braking system, parameter found as per specified value. Through Ex.R1, it was observed that no slippage occurred in the wheels during the accident. On account of this it was found that detected impact or the contents thereof were not severe to deploy the airbags. If impact of the accident would have been on the spot, where airbag sensors were fitted, only then the airbags would have deployed. No expert report produced by the complainant to establish that the contents of Ex.R1 are incorrect and as such, we have no hesitation in holding that non operation of the airbags was because the impact was not on the portion, where sensors for operation of the airbags were fitted.

10.              As per law laid down in case Brijesh Saxena and others vs. Skoda Auto A.S.and others-I(2015)-235(N.C.), in case, technical evidence not produced by the complainant to prove that airbags in the car did not deploy at all when collision took place and even complainant failed to give any reason as to why he could not examine the surviving passenger, then in these circumstances, it was held that the complainant failed to prove that airbags in vehicle were defective or that vehicle suffered from any manufacturing defect. Same is the position in the case before us. Rather, to the contrary as discussed above, OP1 able to prove by producing Ex.R1 and other documents that as impact of the accident was not on the spot, where the sensors were fitted, for the operation of the airbags and as such, in the absence of proof of any technical defect in the operation of the airbags, it has to be held that complainant failed to establish the alleged manufacturing defect, resulting in non deployment of the airbags even after the accident of the vehicle.

11.              In this case, manufacturing defect resulting in non operation of the balloons after the accident would have been detected only after the accident impact and not before that. If the vehicle travelled the distance of 40,200 Kms prior to the accident, then due to that alone, it cannot be held that the manufacturing defect in the vehicle was not there. Submissions of Sh.Rajeev Abhi, Advocate representing OP1 in this respect has no force, particularly when point involved is as to whether technical/manufacturing defect in the deployment of airbags was there or not. So, citations mentioned in this respect has no relevancy to the points involved in this case except the above quoted one. 

12.              Therefore, as a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to parties free of costs as per rules.

13.                        File be indexed and consigned to record room.

 

                      (Param Jit Singh Bewli)                      (G.K.Dhir)

                       Member                                                President

Announced in Open Forum

Dated:02.02.2017.

Gurpreet Sharma.