JUDGMENT

                                                             29.1.2010

Justice Pritam Pal, President

 1.       The aforesaid two appeals have arisen out of  one and the same order dated 13.8.2009 passed by the District Consumer Forum-I, U.T. Chandigarh whereby complaint case No.179 of 2009  filed by Deepak Narang  was allowed in the following terms ;

“In view of the above discussion, we are of the opinion that the present complaint must succeed. The same is accordingly allowed. The OPs are directed to pay to the complainant Rs.7,43,595 – Rs.5,20,000 = Rs.2,23,595/- as compensation for the total loss of the vehicle and Rs.50,000/- as compensation for adopting an unfair trade practice  with Rs.500/- as counsel fee within thirty days from the date of receipt of copy of the order  failing which they would be liable to pay the same alongwith penal interest @ 12% per annum w.e.f. 16.8.2008 (one month after the date of report of the surveyor) till the payment is actually made to the complainant.”

2.         The parties hereinafter shall be referred to as per their ranking before the District Consumer Forum.

3.         In fact the  appeal No.467 of 2009 has been filed by complainant Deepak Narang for enhancement of compensation whereas other appeal No.508 of 2009 has been filed by Skoda Auto India (p) Ltd. and Sidak Automobiles Pvt. Ltd.  against the observation of the District Forum given in para-10 of the impugned order whereby all the OPs including these appellants have been held liable to pay the amount of claim.  Since common questions of law and facts are involved in these two  appeals,  therefore, we propose to dispose of them  by  this common judgment.     

4.     In nutshell, the facts culminating to the commencement of these two appeals  may be recapitulated thus ;

           The complainant on 27.4.2007 had  purchased one Skoda (Activa Rider Classic TDI) car fitted with airbags from M/s Sidak Automobile Pvt. Ltd. OP-3 for a sum of Rs.11,72,205/- which was manufactured by Skoda Auto India Pvt. Ltd.  OP-2, by raising  a loan of Rs.10 lacs from ICICI Bank and got the same insured with OP-1 for the period 27.4.2007 to 26.4.2008 after paying premium of Rs.21,329/-.  On the intervening night of 12/13.2.2008, while saving a stray animal the car met with an accident resulting in injuries to the complainant who was driving the car  and his son as the airbags did not open. DDR No.12 was also lodged on 13.2.2008 with the police at Ambala about the accident.  He remained immobilized for a number of days and took treatment from various doctors including the doctor of Nand Ram Sunny’s hospital and Dr.Ritu Jindal. The minor son of the complainant also received treatment and he could not pursue his studies for a considerable time .  He took the car to OP-3 who estimated the total cost of repair at Rs.14,13,509/-.  As he was not in a position to repay the outstanding amount of loan on account of injuries and immobilization, OP-1 assured to pay him the value of the car as assessed in  terms of the insurance policy as well as the amount spent on treatment, pain, suffering and loss of business and for this purpose got his signatures on blank forms, papers and blank affidavit.  However, the OP-1 paid him a sum of Rs.8,70,000/- only against the insured value of Rs.11,13,595/-. However, the amount on account of loss ofbusiness, pain, suffering, amount spent on treatment and to be spent in future treatment had also not been paid.  It was further alleged that the injuries were received by the complainant as a result of non-opening of the airbags  and had the airbags opened as a result of accident, some of the injuries more particularly breakage of frontal three teeth sustained by the complainant could have been avoided. The loss of three teeth, lowering of shoulder and imbalance of the body had taken place as a result of accident which was exclusively attributable to the manufacturer of the vehicle due to non-opening of the airbags of the car which was a latent defect in the installation of the airbags. The complainant served notice upon OPs seeking compensation but to no effect.   Hence, alleging deficiency in service and unfair trade practice on the part of OPs, complainant filed complaint before the District Forum. 

5.         On the other hand, the stand  of  OP-1-Insurance Company before the District Forum was that  the  complainant applied for the insurance claim and opted for settlement on net salvage basis, executed necessary documents and accepted the claim of Rs.5,20,000/- in full and final settlement.   The complainant agreed to the same and also executed his consent in respect of the same in the form of affidavit dated 3.7.2008.  It was denied that any blank affidavit was provided to it. It was further  submitted that it had no role to play in the sale of the vehicle and   pleaded that the OP was liable to pay the insured amount only  and the same was duly paid.   It was pleaded that there was no deficiency in service and unfair trade practice on its part and prayed for dismissal of the complaint.

6.             The stand of OPs 2 & 3 before the District Forum was  that the accident was caused and injuries were suffered due to the rash and negligent driving of the complainant for which they were not responsible.   It was stated that the airbags did not open as there was no frontal impact on the cross member of the damaged car and inspection of the car showed that it was a case where the car was damaged when it went under the rear side of the truck.   The accidental car was brought to OP-3 only for assessing the damages which were assessed.  It was denied that there was any manufacturing defect in the car.                               

7.          The learned District Consumer Forum after going through the   evidence  and  hearing the learned counsel for parties,  allowed the complaint filed by Deepak Narang   as indicated in the opening part of this judgment. Still dissatisfied complainant as well as   opposite parties No.2 & 3   have come up in their respective appeals. 

8.         We have heard learned counsel for the parties and have also gone through the material brought on the file .

9.         The only contention  of learned counsel for complainant before us is that complainant had paid a sum of Rs.one lac as an additional amount as cost of airbags fitted in the car but the same had not opened inspite of the impact of the accident on its frontal side.  In this regard he made reference to annexure C-6 which contained the detail  of damaged parts  and their  costs. A perusal of this report shows that annexure C-6 was prepared at the instance of OP NO.3 who is authorized dealer of the manufacturer- OP NO.2.  It is apparent from the said report that there was frontal damage to the car. In that, frontal bonnet, front windshield, front glass strip, front bumper, front bumper strip, bumper grill, front reinforcement, radiator, A/c condenser, head lights etc. were damaged. This detail pertaining to the damage of car goes a longway to show that there was a considerable impact of accident on the front side of the car.  It is an admitted fact that  the airbags  fitted for the safety of the driver and front seat occupant   had not opened. Not only that, it is further evident from medical reports annexure C-20 to C-23 that the complainant who was driving the car and another front seat occupant had sustained injuries, so much so the teeth of the driver were also broken.  All this again goes to prove that there was forceful impact of the accident from the front side but inspite of that airbags fitted therein had not opened. This clearly shows that there was some manufacturing defect in the fitting of the airbags for the safety of driver and front seater. All these facts have not been appreciated by the learned District Consumer Forum while deciding the complaint of complainant Deepak Narang.

10.       At this place, it would also be relevant to say that counsel for OPs NO.2 & 3 during the course of arguments had shown some photographs and then submitted that since allegations of cheating and forgery were raised in the complaint, so for  that only jurisdiction to decide the case was with the civil court.  This point raised by learned counsel for OPs No.2 & 3 failed to carry any conviction with us, inasmuch-as there is no head and tail of photographs shown to us, which could rebut the aforesaid evidence put forth on behalf of complainant. Further the allegations, if any of cheating and forgery were against the insurance company and not against OPs NO.2 & 3 who have filed appeal before us.

11.       In this view of foregoing discussion, we feel that complainant who has suffered injuries on account of non-opening of the airbags at the time of accident is also entitled to some more compensation.  In this regard, taking an overall view of the facts and circumstances we feel that further an award of Rs.25,000/-  to the complainant against OPs No.2 & 3, under the rule of thumb, would meet the ends of justice. Thus, we order accordingly.

12.       In the result, the appeal bearing NO.467 of 2009 filed by complainant is partly allowed with costs of Rs.5000/- in the aforesaid terms whereas the appeal bearing No.508 of 2009 filed by Opposite parties No.2 & 3  is dismissed with no order as to costs. 

            Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.