DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KANDHAMAL, PHULBANI
C.C NO. 17 OF 2014
Present: Sri Rabindranath Mishra - President
Miss Sudhiralaxmi Pattanaik - Member.
Biranchi Narayan Patra, aged 59 Years,
Son of Late T. Gurumurty Patra,
At- Hatapada, Laxmi Market,
PO/PS: Phulbani, Dist: Kandhamal ………………. Complainant.
Versus.
1. Super Sales Automobiles (P) Ltd.,
N.H.5, Pahala Plot No. 644/2148,
Bhubaneswar, Odisha.
2. General Motor India (p) Ltd.,
Plot no. 15, 1st Floor; Sector -32 Gurgaon, HARAYAN
3. K. Dhananjaya RaoS/O: K. Rama Rao
At: hanuman Mandir Sahi PO/PS: Phulbani
Dist: Kandhamal ………………. OPP. Parties.
For the Complainant: Sri Birendra Ku Subudhi and his Associates.
For the OPP. Party No-1: Sri R.K Digal and his Associates.
Opp. Party No-2: Mr. V.V. Ramdas and his Associates.
Opp. Party No-3: Self.
Date of Argument: 16-04-2016.
Date or Order: 23-04-2016
O R D E R
The case of the Complainant in brief is that he was the owner of a Chevrolet Beat LT car bearing Regd. No. OR-02-BF/1877, vide Chassis No. MA6BF482DAT012303 and Engine No. B12D1198935KC3 respectively. He has purchased the same car from O.P No.1 on the basis of a Quotation by obtaining loan from S.B.I, Phulbani .The said car was delivered to the Complainant at Phulbani by the O.P No.1 through his driver. On 10-12-2013 the said vehicle met with an accident while the son of the Complainant was driving the vehicle and one of his friends was sitting in the front passenger seat. But the air bag meant for front passenger did not inflate though the air bag of driver side was inflated. As a result
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of which the friend of his son sustained grievous injury and shifted to Vishakapatnam for medical treatment. The son of the Complainant escaped with few injuries due to the inflated air bag. So, non -inflation of the front passenger air bag is completely a defect in manufacturing of the vehicle which did not function at the time of accident. As the O.Ps are completely liable for the loss caused to the injured and vehicle being the seller and manufacturer of the vehicle, he sent an application to the O.Ps for compensation along with photographs by registered post with A.D on 19-12-2013. After intimating the fact to the O.P over phone, the O.P No.1 has dealt with the complainant several times during service and never intimated the Complainant regarding the fault of the said part of the vehicle. The O.Ps have not taken any action after getting the information from the Complainant. So, notice was sent to the O.Ps on 25-02-2014 through registered post with A.D. After getting the said notice the O.P No.1 has sent a letter for more information. So, the Complainant sent all information wanted by O.P No.1 through his advocate on 03-04-2014 but they remained silent which amounts to deficiency in service on their part. Hence, the Complainant has filed this complaint against the O.Ps claiming total amount of Rs. 17, 18,825/- towards the expenses of the treatment of the injured, mental agony of the Complainant, cost of the vehicle and litigation expenses with a prayer to replace the defective vehicle by a new defect less vehicle.
The case of O.P no.1 as per his version is that the Complainant had purchased the vehicle from his show room and prayed to dismiss the case on the ground of jurisdiction. His further case is that he was not the manufacture of the vehicle. He was providing regular service to the Complainant as and when he had produced his vehicle before his work shop.
The case of the O.P No.2 as per his version is that the Complaiant has not attached any photographs of the damaged vehicle with the complaint petition showing the nature of accident of the vehicle. He has not received any application for compensation along with photographs as alleged by the Complainant. The air bag of the vehicle is a supplementary safety mechanism. It is only designed to help to reduce the extent of injury that may be sustained in serious accidents and is not an absolute protection in case of serious accidents .So, it become absolutely necessary to have an expert examination of the vehicle from a recognized neutral expert agency. The vehicle stands to more than three and half years at the time of alleged accident. So, there is possibility of mishaps in the course of three and half years. The Complainant has not produced any expert opinion or report in absence of which the allegations of the Complainant are absolutely incapable to substantiate such allegations of the Complainant. The Onus lies on the Complainant to produce job cards or documents to show that the Complainant has properly fulfilled and implemented the periodic servicing / maintenance-schedule prescribed in the owners’ manual .It requires detailed evidence and strict scrutiny of such evidence having regard to the nature of allegations .So, it is the civil court which is the appropriate forum to decide the present case. It is the settled principle of law
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that the manufacturer has to be given an opportunity by the Complainant to inspect the damaged vehicle before the vehicle is got repaired. In the present case, alleged
repairs on the vehicle commenced without giving any notice in appropriate manner to the O.P No.2. The O.P No.1 is not a dealer of O.P No.2. He is neither a dealer nor an agent to O.P No.2. Chevrolet sales India Private limited showing both O.P No.1 and 2 to be interacting on principal to principal basis. The O.P No.2 stands to be a pioneer in design of the airbags globally and acknowledged accordingly for quality of working of the same. The O.P No.2 denied the allegations of the Complainant. Accordingly he prayed to dismiss the complaint.
The O.P No. 3 is the injured who was sitting on the front side of the vehicle at the time of accident. He has filed separate version in support of the case of the Complainant. It is stated by him that he was going Berhampur on 10-12-2013 with his friend who was driving the vehicle on a normal speed. On the way the vehicle met an accident at Rambha for which the vehicle was damaged completely and they both were sustained severe injury. At the time of said accident the air bag meant for the front passenger did not inflate though the air bag of driver side was inflated. He was shifted to Bishakhapatanam for medical treatment and the complainant spent about Rs. 12 lakhs for his treatment.
During the period of hearing the Complainant has examined two witnesses including himself. The O.P No.3 was also examined. No witnesses were produced by the O.P No.1 & 2. Both parties have filed some documents in support of their case .Exhibit- 1 to Exhibit -15 were marked on behalf of the Complainant .
We have heard the learned counsel of the Complainant and O.P No.2. We have carefully gone through the complaint petition, the versions filed by the O.Ps separately, the affidavits filed by all the witnesses and their depositions, all exhibits marked by the parties and the written arguments submitted by the learned counsel of the Complainant.During course of argument it is submitted by the learned counsel of the complainant that the O.P No.2 never looked into the interest of the Consumer even inspite of letters, notice and avoid the interest of the consumer which proves gross deficiency in service and also unfair trade practice . The learned counsel of O.P No.2 pointed out that no intimation was given to O.P No.2 before the alleged repairs in the vehicle by which he was severely prejudiced. It is also submitted by him that the Insurance Company was not made a party in this case, the reason best known to the Complainant. As there is no merit in the case of the Complainant, the case is liable to be dismissed with cost.
It is seen from the cross examination of PW-1 that the damaged vehicle was already sold by the Insurance Company and he has received the claim from the company. The main allegation of the complainant is that there was manufacturing defect in the vehicle for which the Opp. Parties No.1 & 2 were responsible for the alleged accident. But the question as to whether there was or was not any manufacturing defect in the vehicle could not be decided by the allegations
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and counter allegations of both the parties in absence of expert opinion. In this case neither any surveyor report nor any expert opinion is available in the record to decide the technical aspect of the damaged vehicle. As there is no existence of the damaged vehicle, the scope of obtaining the expert opinion at this stage in order to know the manufacturing defect is very less.
It is pointed out by the learned Advocate of O.P No.2 in his affidavit that the O.P No.3 the injured who was sitting on the front passenger seat had received Rs. 3,00,000/- as compensation from the Insurance company as per decision of the National Lok Adalat held on 12-12-2015 in connection with MAC Case No- 07/15 of the file of the District judge cum MACT, Phulbani .
Hence in the absence of expert opinion regarding manufacturing defect, it can not be said that there was deficiency in service on the part of the Opp. Parties. There is no other suitable evidence also regarding the manufacturing defect of the vehicle. Accordingly the complaint is dismissed on contest due to want of merit. No order as to costs.
The C.C is disposed -of. Supply free copies of this order to both the parties at an early date.
MEMBER MEMBER PRESIDENT
