DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA.

 

Consumer Complaint No. : CC/43/2018 

Date of Institution : 10.04.2018

Date of Decision : 19.08.2019

Sahil Jain aged 28 years son of Phool Chand, resident of House No. B-1/407, Handiaya Bazaar, Barnala.

... Complainant

Versus

 

1. Park Hyundai, Opposite Diwana Kanda, Bajakhana Road, Barnala through its Authorized Signatory.

2.Amar Parkash Agro India Limited, Park Hyundai, Village Kamo-Majra Kalan, Jind Road, Sangrur through its Managing Director/Authorized Signatory. 

3. Hyundai Motor India Limited, 2nd, 5th & 6th Floor, Corporate One, (Baani Building) Plot No.5, Commercial Centre, Jasola, New Delhi-110076 through its Managing Director/Authorized Signatory.

4. National Insurance Company Limited, Baroda Bank Building, Opposite Kaula Park Market, Partap Nagar, Sangrur, through its Branch Manager.

…Opposite parties

 

(Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.KULJIT SINGH, PRESIDENT

SH. TEJINDER SINGH BHANGU MEMBER 

SMT. MANISHA MEMBER 

COUNSEL FOR THE PARTIES:

For complainant : Sh. Rajneesh Bansal Advocate.

For OPs No. 1 and 2 : Sh. NK Garg Advocate

For OP No. 3 : Sh. Rupinder Singh Sandhu Advocate

For OP No. 4 : Sh. PS Aulakh Advocate

Per KULJIT SINGH, PRESIDENT 

1. The present complaint has filed under Section 12 of the Consumer Protection Act, 1986 against the OPs on the averments that he purchased one Hyundai CRETA 1.4 Crdi S+ car manufactured by OP no.3 from OP no.2 and was delivered at Barnala through OP no.1 bearing registration no. PB-19P-3523 and insured with OP no.4. The complainant purchased the said car and paid down payment of Rs.1,02,339/- by RGTS through HDFC Bank Branch Barnala to Park Hyundai. The car was fully insured i.e. bumper to bumper with OP no.4 and he paid premium of Rs.22,331/- and the said car financed by HDFC Bank Barnala. The car met with an accident on 26.12.2017 with stray animal (bull) near village Budrukhaan on Sangrur Barnala Highway and DDR No. 16 dated 27.12.2017 was registered to this effect at police station Budrukhaan District Sangrur. In the above said accident, car was badly damaged. Seat ballets were fastened, air bags did not throb (open) into action at that time due to manufacturing defect in the above vehicle. The said car was taken to workshop of OP no.2 where it was repaired to the dissatisfaction of the complainant and OP no.2 charged an amount of Rs.7,900/- from him illegally and against the facts. OP no.2 should have demanded this amount from Insurance Company as the car was insured from bumper to bumper, therefore, the insurance company is liable for the loss. The complainant lodged claim with OP no.3. He sent emails and contacted OPs for settle his claim, but of no use. Due to act and conduct of OPs, he suffered mental harassment, therefore, he has filed the present complaint and prayed that the OPs be directed to pay Rs.1,99,900/-as claim amount including compensation along with 12% interest per annum from 26.12.2017 till its actual realization.

2. Upon notice, OPs no.1 and 2 appeared and filed written reply and contested the claim of the complainant by raising preliminary objections that complainant has got no locus standi or cause of action to file the complaint. The complaint is not maintainable. This Forum has got no jurisdiction to entertain and try the present complaint. On merits, it was averred that the car in question was purchased from OP no.2 and was registered at Barnala and was insured with OP no.4 and down payment was financed by HDFC Bank. It is submitted that the car in question was insured from bumper to bumper but there is compulsory policy clause that ‘if vehicle of 1.4 was repaired due to accident then compulsory policy clause of Rs. 1,000/- is charged and an amount of Rs. 2,500/- maximum will be charged of the total amount of bill and Rs. 2,000/- was of old parts salvage and Rs. 2,400/- was charged for nutsn, bolts, brake oil, coolants and some other things, which are excluded from the insurance policy, so in this way Rs. 7,900 /- was charged from the complainant. The air bags installed in the car are programmed to deploy in certain circumstances to offer additional protection to the driver/passengers in combination with seat belts. Deployment of air bags depends upon number of factors including but not limited to vehicle speed, angles of impact and object with which the vehicle hits in the collusion etc. The car of the complainant was fully inspected and it was observed that the supplement restrained system was functioning normally. During inspection, it was observed that front end module was bent downwards and hood were damaged in the impact with the animal, which fell on the hood after impact. The impact was such in nature that sufficient impact required to deploy air bags not delivered to the front fact SENSORS located in the engine compartment, hence air bag did not deploy. OPs no.2 and 3 denied other averments of the complainant and they prayed that the present complaint may kindly be dismissed. 

3. OP no.3 appeared and filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that the complainant has no locus standi to file the complaint. The complaint is liable to be dismissed for concealment and misrepresentation of material facts. OP no.3 operates with all its dealers including OPs no.1 and 2 on ‘Principal to principal basis and not on principal to agent basis meaning thereby that servicing and repairing of the car is the sole responsibility of the concerned dealer. On merits, it is denied that there is any manufacturing defect in the vehicle. The complainant has failed to prove the case by way of any cogent and credible evidence. Rest of the averments of the complainant were denied by OP no.3 and it prayed for dismissal of the complaint. 

4. OP no.4 appeared and filed its separate written reply and contested the complaint by raising preliminary objections that complaint is pre-mature. The complainant is estopped from filing the present complainant by his own act and conduct. The complaint is not maintainable. On merits, it was averred that there is no manufacturing defect in the vehicle. Rest of the averments of the complainant were denied by OP no.4 and it prayed for dismissal of the complaint.

5. The complainant has tendered in evidence copies of documents Ex.C-1 to Ex.C-18, affidavit of complainant is Ex.C-19, affidavit of Gurpreet Singh is Ex.C-20 along with other copies of documents Ex.C-21 to Ex.C-23 and closed the evidence. As against it: OPs no.1 and 2 tendered in evidence affidavit of Deepak Bansal as Ex.OP-1-2/1 along with copies of documents Ex.OP-1-2/2 to Ex.OP-1-2/8 and closed the evidence. OP no.3 tendered in evidence copies of documents Ex.OP-3/1 to Ex.OP-3/5 and affidavit of Varun Panta Assistant Manager as Ex.OP-3/6 and closed the evidence. OP no.4 tendered in evidence affidavit of Avtar Kalley Divisional Manager as Ex.OP-4/1 and closed the evidence. 

6. We have heard learned counsel for the parties and have also examined the record of the case very carefully.

7. The complainant tendered in evidence his affidavit Ex.C-19 on the record. He testified in his affidavit that he purchased one Hyundai CRETA 1.4 CRDI S + car manufactured by OP no.3 from OP no.2 delivered through OP no.1. He paid premium of Rs.22,331/- of the above said car for its insurance bumper to bumper. The car met with an accident on 26.12.2017 with stray animal near Village Budrukhaan on Sangrur Barnala Highway and FIR was registered to this effect. He alleged at the time of accident air bags of the car did not open in action due to manufacturing defect in the said car. He lodged claim with OP no.3 and sought explanation from OP no.2. OP no.2 admitted ‘sorry’ and to this effect he also sent emails. The damage to quarter panel on rear side and driver side have decreased the price/value of the car. The complainant sent various emails and contacted OPs times and again but all in vain. Gurpreet Singh tendered his affidavit Ex.C-20 in support of the case of the complainant. He stated that he has passed the course of Motor Mechanic from I.T.I and he is working as Fitter Mechanic from the last 12 years. I have seen the photographs of the accidental vehicle and I submitted my report dated 27.07.2018 to this effect. Ex.C-1 is copy of registration certificate issued in favour of the complainant by Issuing Authority Barnala. Ex.C-2 is copy of driving license issued in favour of the complainant. Ex.C-3 is insurance policy issued in the name of the complainant covering period from 23.03.2017 to 22.03.2018. Ex.C-4 is DDR No. 16 dated 27.12.2017 registered at police station Budrukhaan.  Ex.C-5 is sale certificate dated 23.03.2017. Similarly, we have also perused other documents Ex.C-6 to Ex.C-18 and Ex.C-21 to Ex.C-23 on the record.

8. To counter this evidence of the complainant, OPs No.1 and 2 tendered in evidence affidavit of Deepak Bansal in support of the case of OPs. This witness stated that air bags in the car are programmed to deploy in certain circumstances to offer additional protection to the driver/passengers in combination with seat belts. Deployment of air bags depends upon number of factors including but not limited to vehicle speed, angles of impact and object with which vehicle hits in the collusion etc. The impact was such in nature that sufficient impact required to deploy air bags not delivered to the front fact SENSORS located in the engine compartment, hence air bag did not deploy. Similarly, we have perused the other documents Ex.OP-1-2/2 to Ex.OP-1-2/8 placed on the record. 

9. OP no.3 tendered in evidence affidavit of Varun Panta Assistant Manager as Ex.OP-3/6 in favour of case of OP no.3. This witness stated that the impact damage was similar to under ride damage, in such condition, front airbags may not deploy because deceleration forces detected by the sensors are significantly low as mentioned in the owner manual. Both front chassis member found unaffected by the frontal impact hence no impact sensed by the front impact sensor and hence it did not trigger any signal to SRSCM. The condition was not met for air bag deployment, hence no air bags deployed. The air bag system was working proper at the time of accident. Similarly, we have gone through other documents Ex.OP-3/1 to Ex.OP-3/5 placed on the record.

10. OP no.4 relied upon affidavit of Avtar Kalley Sr. Divisional Manager as Ex.OP-4/1 in support of the case of the OPs. This witness stated that the car was taken to the workshop of OP no.2 and said car of the complainant was repaired to the satisfaction of the complainant. He denied any deficiency in service on the part of OP no.4.

11. From hearing respective pleadings of the parties and gone through the pleadings of the parties, we find that it is an established fact that the complainant purchased the above said vehicle in question from OP no.1 manufactured by OP no.3 and this fact was admitted by OPs themselves. Gurpreet Singh tendered his affidavit as Ex.C-20 in support of the case of the complainant. This witness stated that he is Motor Mechanic Vehicle and is diploma holder from ITT. He also produced his Provisional National Trade Certificate as Ex.C-21 issued by Punjab State Board of Technical Education and Industrial Training. This certificate shows that Gurpreet Singh passed the trade test in the trade of “Mechanical Motor Vehicle” and awarded certificate to him in this regard. He also gave his report Ex.C-23 in support of the case of the complainant. This witness stated in his Mechanical Test Report that he has passed the course of Motor Mechanic Vehicle and working as Fitter Mechanic from the last 12 years in this field.  In his affidavit he deposed that he has seen the photographs of accidental vehicle and during inspection he found that the colour of vehicle in question is White, its bumper is broken, its bonnet is also totally broken and its radiator is also in broken condition. From inspection of the above said vehicle, he found that the air bag should be opened at the time of accident, but same were not opened at that time. As per Supplemental Restraint System as Ex.OP-3/5 it is clear that air bag deployment depends on the number of factors including vehicle speed. The air bag modules are located both in the center of the steering wheel and in the front passenger’s panel above the glove box. When the SRSCM detects a sufficiently severe impact to front of the vehicle, it will automatically deploy the front air bags. Upon deployment, tear seams molded directly into the pad covers will separate under pressure from the expansion of the air bags. After fully inflated air bag, in combination with a properly worn seat belt, slows the drivers or the passenger’s forward motion, reducing the risk of head and chest injury.

12. The counsel for OPs agitated this point in this case that this Forum has got no jurisdiction to entertain and try the present complaint as car was purchased from Sangrur and payment was also made at Sangrur and moreover accident took place at Village Badrukhaan, which is within the jurisdiction of Sangrur. To rebut this objection of the opposite parties the complainant relied upon copy of Account statement Ex.C-14 in which it is specifically mentioned that on 28.3.2017 the payment of Rs. 1,02,339/- was made to Park Hyndai from HDFC Bank Branch Barnala so the partly cause of action also arisen at Barnala and under Section 11 (2) (c) of the Consumer Protection Act, 1986 this Forum has the jurisdiction to try and decide the present complaint. 

13. From document Ex.OP-2-3/3 it is clear that there is manufacturing defect the air bags of the vehicle in question, so, it is duty of the OPs to remove the defect from the same or to replace the air bags with new one as in this case, the air bags provided in the Creta car failed to deploy at that time. From perusal of photograph clippings of the damaged vehicle, it is clear that the vehicle is in high speed. So, there is deficiency in service and unfair trade practice on the part of the opposite parties No. 2 and 3. Further, it is admitted fact that the insurance of the car of the complainant was bumper to bumper but the opposite party No. 2 charged Rs. 7,900/- from the complainant on account of repair of the car which would be charged from the opposite party No. 4 i.e. insurance company, so the opposite party No. 4 is also liable to pay this amount and by not paying the same the opposite party No. 4 is also deficient in providing service to the complainant.

14. In view of above facts and circumstances of the case, we partly allow the present complaint on the ground of manufacturing defect in the air bags only and also for not paying the amount of Rs. 7,900/- to the complainant which was charged by the opposite party No. 2 illegally from him. Accordingly, the opposite parties No. 2 and 3 are directed to replace the air bags of the car of the complainant free of costs and opposite party No. 4 is directed to refund the amount of Rs.7,900/- to the complainant which has been charged by OP no.2 illegally from him alongwith interest at the rate of 6% per annum from the date of institution of the present complaint till actual realization. The opposite parties No. 2 and 3 also directed to pay Rs. 5,000/- as compensation for mental tension and harassment and Rs. 3,000/- as litigation expenses to the complainant. The compliance of the order be made within the period of 30 days from the date of receipt of copy of this order. Let copies of the order be sent to the parties free of costs. File be consigned to the records after its due compliance.

  ANNOUNCED IN THE OPEN FORUM:

19th Day of August 2019

 

 

            (Kuljit Singh)

           President

 

 

           (Tejinder Singh Bhangu)                Member

 

 

(Manisha)

Member