Order by:
Smt.Priti Malhotra, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that the complainant has purchased Maruti Brezza Smart Hybrid ZXi from the opposite party No.1 on 04.11.2022 for Rs.10,97,305/- and the Car bears the Registration No.PB-29AF-3003. The complainant also got the same insured through the insurance firm Maruti Suzuki Insurance Broking Private Limited of the opposite parties, who has association with The New India Assurance Company Limited. On 24.01.2023, at about 07:30 PM, the complainant was driving the Car and brother of the complainant namely Rahul Verma was sitting in the Car with the complainant. Both i.e. the complainant and his brother had fastened the seat belts. When the complainant reached in front of old Toyota Agency situated at Moga-Ludhiana GT. Road, Moga, then a stray cow came in front of the Car. The Car struck with the stray cow and due to the impact of the accident, the cow died at the spot. The complainant as well as his brother suffered injuries in the said accident. To the surprise of the complainant, the safety features advertised by the opposite parties and duly assured to the complainant at the time of sale of the Car in question i.e. air bags did not open at the time of accident. The matter was also reported to Police and DDR entry was also done by the police authorities. Thereafter, the complainant took the Car in question to the opposite party No.1 on 25.01.2023 and handed over the car to the opposite party No.1 and requested to give him new Car after testing the air bags or either to return the amount of the complainant. The opposite party No.1 assured the complainant that he will inform the same to the opposite party No.2 and both will do the needful, but thereafter the opposite parties did not reply to the complainant. Thereafter, on 01.02.2023 the complainant submitted the written application to the opposite party No.1, but the opposite party No.1 did not pay any heed to the requests of the complainant. The opposite party No.1 neither delivered new car after testing the air bags, nor returned the amount of the car in question to the complainant. Thereafter the complainant visited the office of the opposite party No.1 many times, but all in vain. A legal notice dated 10.02.2023 was also served upon the opposite parties, but to no effect. However, they sent an e-mail to the complainant on 28.02.2023, in which it is alleged by the opposite parties that the strong impact has not occurred, so the front air bags did not inflate, but this is patently wrong. The impact was to the extent that the cow has died at the spot. Due to the act and conduct of the opposite parties the complainant suffered huge mental tension and harassment. Hence this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Parties may be directed either to issue new car Maruti Brezza Samr Hybrid ZXi or to refund the price of the car i.e. Rs.10,97,305/- and enrollment fee of their loyalty program alongwith insurance amount of Rs.31,938/-.
b) To pay an amount of Rs.5,00,000/- as compensation on account of unfair trade practice, deficiency in service and harassment as well as mental agony suffered by the complainant and Rs.5,00,000/- for unfair trade practice.
c) To pay an amount of Rs.55,000/- at litigation expenses.
d) Any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.
2. Opposite Party No.1 appeared through counsel and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that the complaint under reply is liable to be dismissed qua the Opposite Party no.1 as same is an abuse of the process of law qua the said Opposite Party no.1; the present complaint is baseless, frivolous and has been formulated on wrong and misleading facts and is devoid of any merits whatsoever; the answering Opposite Party denies each and every allegation made in the complaint under reply against the Opposite Party No.1 unless admitted or commented therein; the present complaint under reply is liable to be dismissed qua the Opposite Party No.1 as the complainant has utterly failed to prove any fault on the part of the Opposite Party No.1. It is further submitted that there is no evidence documentary or otherwise which points out any fault on the part of the Opposite Party No.1; the complaint under reply is liable to be dismissed as there is no deficiency in service and unfair trade practice on the part of the Opposite Party No.1. Further submitted that as per the directions of the complainant, the Opposite Party No.1 duly repaired the vehicle in question and after completion of repair on 31.03.2023, the vehicle in question returned to the complainant in running condition. Since, 31.03.2023, the vehicle in question is in the exclusive possession of the complainant and he is using the same; the present complaint under reply is liable to be dismissed qua the Opposite Party No.1 with cost of Rs.15,000/- on the complainant as same is frivolous, malafide and vexatious, resulting in the incurring of litigation and other expenses by the answering opposite party for contesting the present complaint under reply; the complainant has not come before this Commission with clean hands and has concealed vital and material facts from this Commission; no cause of action, either wholly or in part, has ever arisen in favour of the complainant and against the Opposite Party No.1 and the present complaint is nothing but an abuse of the process of this Commission; the present complaint has been filed by the complainant against the answering opposite party for harassing the answering opposite party and to extort huge amount of money from the same without any material on record. On merits, it is submitted that on 25.01.2023, the complainant had approached the answering Opposite Party for repair of his vehicle in question within insurance and at that time he also made an oral request to the answering Opposite Party to find out the reason why air bags did not open at the time of accident. On the same day, the complainant also raised the same query to answering Opposite Party through email dated 25.01.2023. Thereafter on 27.01.2023, the complainant again sent an email to find out the reason of non-opening of air bags. Both the emails duly replied by answering Opposite Party with the request to the complainant to visit the workshop of answering Opposite Party and give his approval to star work, so that after due inspection the answering Opposite Party find out the reason. Thereafter, the complainant sent a written letter dated 01.02.2023 to change the vehicle in question with new one after checking the air bags. This letter duly replied by answering Opposite Party through email dated 07.02.2023. Later on after inspection of the vehicle in question, it is found that there is no mal-functioning in the air bag system and the same is in ok condition. This was duly informed to the complainant by Opposite Party No.1 through email dated 28.02.2023. Later on as per the directions of the complainant, answering Opposite Party duly repaired the vehicle in question and after completion of repair on 31.03.2023, the vehicle in question was returned to the complainant in running condition. All other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. Opposite Party No.2 appeared through counsel and filed written reply taking certain preliminary objections therein inter alia that the complainant had raised a belated complaint as a mere after thought for illegal gains without any cogent proof or report of technical expert. Further submitted that the insurance claim would not have been received by the Complainant if there was any defect in the vehicle, i.e. alone manufacturing defect, as alleged. It is submitted that there is no defect in the functioning of the air bags, as alleged by the Complainant. Further alleged that the complainant had concealed material facts from this Commission. The complainant had not disclosed the fact that the insurance claim was taken for repair of vehicle in question. The insurance claim was processed after inspection from independent surveyor. In case there would have been any manufacturing defect or any other defect the claim could not have been processed. Furthermore, the complainant had suppressed the fact that complainant had himself not accorded the approval for inspection of the vehicle particularly airbag controller. The complainant had accorded approval only on 09.02.2023. The inspection was carried out and vide email dated 28.02.2023 the complainant was informed about the same. The complainant was well aware of the fact that airbag system was not in malfunctioning state and was functioning in Ok condition. It is submitted that it was clearly informed that air bags deployment is subject to certain conditions which have been mentioned in ‘Owner's Manual and Service Booklet’. Further submitted that complainant after accidental repairs had taken his vehicle for 2nd free service on 12.04.2023 at 4965 Kms. After 2nd free service complainant had also shared satisfaction note. The said complaint is merely an attempt to exert illegal pressure on the answering Opposite Party on frivolous grounds in order to obtain unjust gains. It is pertinent to note that till date complainant has not made a single complaint against the vehicle nor any repairs/problems had been reported by complainant during scheduled/ periodic maintenance visits to various workshops. The complainant has lodged claim with the Insurance Company and the said claim has been allowed. Complainant has duly obtained the insurance claim and got his vehicle repaired through insurance claim. Further submitted that the averments/representations made by the complainant with respect to deployment of air bags are misplaced, irrational and wrong. The complainant has failed to substantiate the allegations with any evidence of credible report of any expert. It is submitted that airbags are designed to provide supplementary protection to the passengers against specified impact. The Supplementary Restraint System (Airbag) operates independently depending upon various factors including, but not limited to, the angle of collision, degree of impact, seat belt status and sensor placement and has been well explained in the owner's manual and service booklet of the complainant. Under the head "Before Driving" enumerated under the ‘Owner's Manual & Service Booklet’ ("Owner's Manual") important relevant information/ about functioning & working of 'Supplement Restraint System (air bags)' have been provided by the answering Opposite Party. The answering Opposite Party recommends every owner or operator to read these instructions carefully as it contains important information on safety, operation and maintenance. The air bags are designed to inflate in severe frontal collisions when the ignition switch is in the 'ON' position. Further, front air bags are not designed to inflate in rear impacts, side impacts, rollovers or minor frontal collisions. Additionally, the front air bags may not inflate when a strong impact has not occurred since collision/crash object was easy to be deformed or moved, or the crashed portion of the vehicle was easy to be deformed or collision angle was greater than about 30 degrees from the front. Also, the air bags may not inflate when there is a frontal collision with a stopped vehicle at less than about 50km/h or in collision that the front of the vehicle goes under the bed of a truck etc, collision with utility pole or stumpage, collision with fixed wall or quardrail at left and right angles of greater than about 30 degrees from the front of the vehicle, frontal collision with a fixed wall that does not move or deform at less than about 25 km/h; which has been clearly illustrated means of picturisation in the Owner's Manual. As per the photographs submitted by complainant himself, it is clearly evident that the damage is on the left hand side from the top of hood. The interior of the vehicle is intact and there is no severe frontal damage at the time of accident. Hence, there is no abnormality in functioning of the air bags. Further submitted that the Complainant has failed to place any record or proof to substantiate its allegations regarding the deficiency in air bags. The present case does not fall under the provisions of the Consumer Protection Act, 2019. Further averred that the complainant has failed to implead the insurance company concerned after obtaining the insurance claim and their version is essential for adjudication of the complaint. Hence the complaint suffers from misjoinder of necessary parties. Also, the answering Opposite Party is neither a necessary party nor has any role in the said complaint as the Complainant ceases to be a consumer. Further averred that the complainant had not disclosed as to reason for late filing of complaint with police officials. As alleged by complainant himself the accident took place on 24.01.2023, however, the police complaint was lodged on 27.01.2023. It is clearly evident from the facts stated by complainant himself that the entire exercise has just been done to get unjust gains. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
4. In order to prove his case, complainant has placed on record copies of documents Ex.C1 to Ex.C18 and his affidavit Ex.C19.
5. To rebut the evidence of complainant, Opposite Party No.1 has placed on record affidavit of Sh.Sushil Pandey, Manager Cum Authorized Representative Ex.OP1/1 alongwith copies of documents Ex.OP1/2 to Ex.OP1/15. Whereas, Opposite Party No.2 has placed on record affidavit of Sh.Nitin Sharma, Deputy General Manager (Legal) Maruti Suzuki India Limited Ex.OP2/1 alongwith copies of documents Ex.OP2/2 & Ex.OP2/3.
6. We have heard the counsel for the parties and gone through the documents placed on record.
7. The case of the complainant is that the he purchased Maruti Brezza Smart Hybrid ZXi from the opposite party No.1 on 04.11.2022 for Rs.10,97,305/-. The complainant also got the same insured from The New India Assurance Company Limited. On 24.01.2023, at about 07:30 PM, the complainant was driving the Car alongwith his brother namely Rahul Verma. When the complainant reached in front of old Toyota Agency situated at Moga-Ludhiana GT. Road, Moga, then a straw cow came in front of the Car. The Car struck with the stray cow and due to the impact of the accident, the cow has died at the spot. The complainant as well as his brother suffered injuries in the said accident. To the surprise of the complainant, air bags of the car did not open at the time of accident. The matter was also reported to Police and DDR entry was also done by the police authorities. Thereafter, the complainant took the Car in question to the opposite party No.1 on 25.01.2023 and requested the opposite party No.1 to give him new Car after testing the air bags or either to return the amount of the complainant, but nothing was done by Opposite Party No.1 Thereafter, on 01.02.2023 the complainant submitted the written application to the opposite party No.1, but the opposite party No.1 did not pay any heed to the requests of the complainant.
8. Ld. Counsel for the Opposite Party No.1 has repelled the afroresaid contentions raised by complainant stating that on 25.01.2023, the complainant had approached the Opposite Party No.1 for the repair of his vehicle in question and also made an oral request to Opposite Party No.1 to find out the reason why air bags did not open at the time of accident. The complainant also raised the same query to Opposite Party No.1 through email dated 25.01.2023 and thereafter on 27.01.2023. Both the emails duly replied by Opposite Party No.1 with the request to the complainant to visit the workshop of Opposite Party No.1 and give his approval to start work, so that after due inspection the Opposite Party No.1 find out the reason. Thereafter, the complainant sent a written letter dated 01.02.2023 to change the vehicle in question with new one after checking the air bags. This letter duly replied by Opposite Party No.1 through email dated 07.02.2023. Later on after inspection of the vehicle in question, it is found that there is no mal-functioning in the air bag system and the same is in ok condition.
9. Whereas, the contention of Opposite Party No.2 is that the insurance claim was taken for repair of vehicle in question. The complainant had suppressed the fact that complainant had himself not accorded the approval for inspection of the vehicle particularly airbag controller. The complainant had accorded approval only on 09.02.2023. The inspection was carried out and vide email dated 28.02.2023 the complainant was informed about the same. Further contended that it was clearly informed that air bag deployment is subject to certain conditions which have been mentioned in Owner's Manual and Service Booklet. Further submitted that complainant after accidental repairs had taken his vehicle for 2nd free service on 12.04.2023 at 4965 Kms. After 2nd free service complainant had also shared satisfaction note. Further contended that airbags are designed to provide supplementary protection to the passengers against specified impact. The Opposite Party recommends every owner or operator to read these instructions carefully as it contains important information on safety, operation and maintenance.
10. We have gone through the rival contentions raised by ld. Counsel for Opposite Parties No.1 & 2. The contention raised by the Opposite Party No.1 is that after inspection of the vehicle in question, it is found that there is no mal-functioning in the air bag system and the same is in ok condition is not substantiated by any evidence in this regards as they have not placed on record any expert report to this effect.
11. On the other hand, the contention raised by Opposite Party No.2 is that there is no defect in the functioning of the air bags, as alleged by the complainant and also the complainant had already taken the insurance claim for repair of vehicle in question. It is claimed by Opposite Party No.2 that in case there would have been any manufacturing defect or any other defect the claim could not have been processed. We do not agree with this contention of Opposite Party No.2, as the present complaint pertains only to the non deployment of air bags of the car in question despite major impact/collusion and not in regards to the insurance claim. The other contention raised by Opposite Party No.2 is that the inspection was carried out and vide email dated 28.02.2023 the complainant was informed about the same and there is no defect in the air bags of the car in question, but this contention of Opposite Party No.2 is also not maintainable, as had there been no defect as alleged, the complainant would not have been forced to file the present complaint.
12. The other contention raised by ld. Counsel for the Opposite Party No.2 is that after 2nd free service complainant had also shared satisfaction note, but the perusal of the satisfaction note reveals that the said note is in regards to the service of the vehicle in question nor about the working of the air bags. The other contention raised by Opposite Party No.2 is that the representations made by the complainant with respect to deployment of air bags are wrong, as he failed to substantiate the allegations with any evidence of credible report of any expert. Reference may be made to the judgment pronounced by the Chandigarh State Consumer Disputes Redressal Commission in Shailender Bharanagar Vs. Hyundai Motors India Limited in complaint no.38/2018 where the Commission made the following observations: -
It is pertinent to note, that expert evidence need not be relied upon where the facts speak for themselves. This is a case of Res Ipsa loquitur where the photographs of the damaged vehicle placed on record clearly show the impact of the accident on the vehicle.
13. In the present case also, perusal of photographs Ex.C14 to Ex.C18 of the accidental/damaged car, shows that the car got completely damaged, along with various other parts. So, the aforesaid contention raised by Opposite Party No.2 is also not maintainable. It is sufficient to prove that there was some defect/ problem with the censors of the airbags which did not get deployed inspite of such an impact. We are further of the view that if at the time of accident, the airbags deploy, then the occupants of the vehicle would not have suffered the great impact upon their bodies and they would have suffered fewer injuries. It is to be kept in mind that high end vehicles with all the safety features are being preferred/purchased by spending huge additional amount only to have a secured, safe and sound journey i.e. an additional safety coverage of life. But however, if said airbags did not get deploy at the time of accident, then what was the need for a person to purchase such vehicle after spending hefty amount with no purpose.
The defence taken by the Opposite Parties No.1 and 2 is not acceptable in the facts and circumstances of the present case. Despite such a major collision as seen in the photographs, the airbags of the vehicle did not deploy. We feel that the Opposite Parties would have agreed on the question of defect in the vehicle with regard to the censors of the airbags. The intensity of the accident/collusion in present case was very high as is evident from the photographs and non-deployment of airbags proves that certainly there was some problem with regard to the censors of the airbags. The circumstances proves deficiency in service as well unfair trade practice on the part of the Opposite Parties in selling such an expensive car with defective censors of the airbags which caused great loss to the complainant. Since the Opposite Party No.1 has already repaired the vehicle in question upto the satisfaction of the complainant and complainant is also plying the same with no hassle. Thus, Opposite Party No.1 is being exempted from any compensation.
14. From the discussion above, we party allow the complaint of the complainant against Opposite Party No.2 and direct Opposite Party No.2, to pay lump sum compensation of Rs.1,50,000/-(Rupees One Lakh Fifty Thousand only) to the complainant on account of deficiency in service, unfair trade practice and causing mental agony and harassment, alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 27.03.2023 till its actual realization. Further for thrusting the avoidable litigation, Opposite Party No.2 is further burdened with Rs.10,000/- (Rupees Ten Thousand only) to be paid to the complainant. Complaint against Opposite Party No.1 stands dismissed. The pending application(s), if any also stands disposed of. The compliance of this order be made by Opposite Party No.2 within 45 days from the date of receipt of this order, failing which, Opposite Party No.2 is burdened with additional cost of Rs.20,000/-(Rupees Twenty Thousand only) to the paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
Announced in Open Commission
