Chandigarh

DF-I

CC/1026/2019

Parshottam Lal - Complainant(s)

Versus

Volkswagen A.G. C/o M/s Skoda Auto India Pvt. Ltd. - Opp.Party(s)

Vinod Gupta & Mayank Gupta

27 Dec 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

 

                    

Consumer Complaint No.	:	CC/1026/2019
Date of Institution	:	23/10/2019
Date of Decision	:	27/12/2021

 

 

Parshottam Lal s/o Sh. Shivji Ram r/o H.No.2537, Sector 35-C, Chandigarh.

… Complainant

V E R S U S

1. Volkswagen A.G. c/o M/s Skoda Auto India Pvt. Ltd., Plot No.A-1/1, Five Star, Digital Area, MIDC, Shendra, Tq and District Aurangabad-431201, through its Director.
2. World Class Automobile Pvt. Ltd., 68/3, Najafgarh Road, Near Moti Nagar, New Delhi, through its Director.
3. Lalli Motor India Pvt. Ltd., Plot No.72, Industrial Area, Phase-1, Chandigarh through its Director.

… Opposite Parties

 

CORAM :	SHRI RAJAN DEWAN	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                

 

ARGUED BY	:	Sh. Vinod Gupta, Counsel for complainant
	:	OPs 1 & 2 ex-parte
	:	Sh. Devinder Kumar, Counsel for OP-3

Per Rajan Dewan, President

1.      The allegations in brief are that the complainant planned to purchase a good car having good security features.  On persuasion of the OPs, the complainant got ready to purchase Jetta 2.0 highline TDI automatic car having ex-showroom price of ₹18,71,800/-.  The complainant was told that in the event of any accident, occupants of the car would be safe as there were 8 balloons/air bags in the car.  The said car met with accident on 3.7.2017 near Ambala Cantt. and got badly damaged in which wife of the complainant received serious multiple injuries as the balloons/air bags of the car did not open.  On 4.7.2017, the car was taken to OP-3 and after repairs was handed over on 6.11.2017 and the complainant paid ₹5,80,517/- for repairs. Alleging non opening of the air bags to be a manufacturing defect on the part of OPs, complainant has filed the instant consumer complaint.
2.     Initially Sh. Gaurav Bhardwaj, Advocate put in appearance on behalf of OP-1 and the case was adjourned for filing reply and evidence.  However, subsequently neither the reply and evidence were filed nor anybody put in appearance on behalf of OP-1. Hence, vide order dated 17.2.2020 OP-1 was proceeded against exparte.
3.     Registered notice was sent to OP-2 which was presumed to have been served. Since none appeared on behalf of OP-2, therefore, vide order dated 16.12.2019 of this Commission, it was proceeded against ex-parte.
4.     OP-3 contested the consumer complaint, filed its written reply and averred that it cannot be held liable to any independent act and omission, if any, committed by other parties.  Maintained, in the absence of expert evidence, it cannot be alleged by the complainant that the vehicle in question was having any inherent manufacturing defect. Stated that the complainant has failed to set out any case against OP-3.  Admitted that the vehicle met with an accident. Averred that as per manual the airbags can protect vehicle occupants during frontal and side collisions by reducing the occupants’ movements in the direction of collision. Pleaded that the vehicle was repaired and delivered to the complainant to his entire satisfaction.  Pleading that there is no deficiency in service or unfair trade practice on its part, OP-3 prayed for dismissal of the consumer complaint qua it.
5.     Replication was filed by the complainant and averments made in the consumer complaint were reiterated. Maintained the air bags of the car did not open due to manufacturing defect for which no expert evidence is required.
6.     Parties led evidence by way of affidavits and documents.
7.     We have heard the learned counsel for the parties and gone through the record of the case, including written arguments.
8.     Per pleadings of the parties, the undisputed facts are that the complainant purchased the vehicle in question from OP-2, which was manufactured by OP-1, and that it met with an accident in which the airbags did not open and the vehicle suffered extensive damage. 
9.     It has been argued by the learned counsel for the complainant that the vehicle in question was purchased from OP-2 per invoice (Annexure C-2) at ex-showroom price of ₹18,71,000/-. The said vehicle met with an accident on 3.7.2017 and suffered damage. The wife of the complainant received multiple injuries in the accident and remained hospitalized as balloons/air bags in the car did not open which according to the learned counsel amounts to manufacturing defect. 
10.     On the other hand, learned counsel for
    OP-3 argued that since the insurance company, with which the vehicle in question was insured, had already released the claim amount to the complainant, therefore, he has got no claim.  However, it is pertinent to note that the dispute in the present consumer complaint is not with regard to insurance claim, but, with regard to manufacturing defect in the vehicle due to which the air bags did not open at the time of accident and the complainant’s wife suffered serious injuries. Therefore, complainant is well within his right to file the present consumer complaint.
11.     Now we proceed to determine whether the car purchased by the complainant had any manufacturing defect in non-opening of the airbags or not. The learned counsel for OP-3 has vociferously argued that the complainant has failed to bring on record any expert evidence to support his claim of defective airbags.  No doubt, in cases pertaining to manufacturing defects in automobiles, onus lies on the complainant to bring the expert evidence on record to establish the case. However, the learned counsel did agree that the air bags did not open in the accident. It is important to note that expert evidence need not be relied upon where the facts speak for themselves. 
12.     It may again be stated here at the cost of repetition that the complainant had purchased the car in question at a huge price of ₹18,71,800/- for its safety features highlighted by the manufacturer.  However, despite that, the airbags did not function when required, due to which the complainant’s wife sustained serious injuries, remained bed ridden for a long time and the complainant had also to incur huge expenditure on her medication. The complainant has placed on record photographs of the accidental car which was brought to OP-3 on 4.7.2017 and was finally repaired and ready for delivery vide invoice dated 3.10.2017 which shows that as many as 58 parts, including hood, cover, headlight, carrier, guide, hinge, deflector, rear apron, tail lights, lid, grille, windshield, bumper, condenser, air duct, member etc., were replaced. Without forceful impact, the car would not have been so badly damaged.  In such circumstances, non-opening of air bags in itself is sufficient to prove manufacturing defect in the car.  Here we are strengthened by the judgment of our own Hon’ble Chandigarh State Commission in Sukhdeep Singh Bhinder vs. EM PEE Motors Ltd. and Ors., Complaint Case No.795 of 2017 and the relevant paragraph thereof is reproduced as under:-

"17. It is important to mention here that in the instant case, no report of any expert is required as the facts speak for themselves. It is a case of Res Ipsa Loquitur where the heavy impact of accident can easily be seen from pictures placed on record. Thus, a faulty vehicle was sold to the complainant by the opposite parties, since while selling the vehicle they claimed that it had world class safety features, including the state of the air bag system, which protects the passengers in the event of an accident, whereas in fact, the air bags did not deploy despite heavy impact. The opposite parties have indulged in unfair trade practice, by projecting the safety features of their vehicle to be amongst the best in the market. The impact of the accident was big & sudden, however, surprisingly, the air bags did not deploy, which resulted in causing injuries to the complainant and the co-passenger traveling in the car. In fact the air bags are meant to protect the driver and the passengers from severe injuries in a frontal or side collision. They are further designed to provide further protection in addition to the primary safety provided by seat belts. In the instant case, the non-functioning of the air bags is a total failure of engineering which could be more fatal, hence it appears that the car, in question, has got major defect, which could be discovered only at the time of such an accident as had happened in the instant case."

 

Hence we are satisfied that in the present case facts speak for themselves and no further expert evidence is required to prove that the car in question suffered from manufacturing defect.

13.     In order to rebut the allegations of the complainant, it was imperative for OPs 1 & 2 to have filed their written reply alongwith some cogent evidence. However, what to talk of rebutting the allegations, OPs chose to be proceeded against ex-parte. This act of OPs 1 & 2 draws an adverse inference against them and proves that they have nothing to say in their defence qua the allegations made by the complainant. In the absence of anything to the contrary, the allegations of the complainant go unrebutted and uncontroverted.
14.     Faced with this situation, learned counsel for OP-3 contended that OP-3 is merely authorized dealer of the manufacturer (OP-1) in Chandigarh and it had nothing to do with installation of airbags and it is the manufacturer/OP-1 only which is responsible for installation of the airbags into the vehicle. We fully agree with this contention of the learned counsel and here we are fortified by the judgment of the Hon’ble National Commission in Manager Jaika Automobiles Pvt. Ltd. Vs. Leela Sahu & Anr., Revision Petition No.1071 of 2016 decided on 20.4.2017 and the relevant paragraph No.6 thereof is reproduced as under :-

6.     We have heard learned counsel for the parties and perused the record. The sole issue which needs consideration in this revision petition is whether the dealer who has nothing to do with the manufacturing of the car, can be held liable for manufacturing defect found in the car. This issue is no more res-integra. Similar issue came up before the Co-ordinate Bench of this Commission in the matter of Abhinandan vs, Ajit Kumar Verma & Ors., I (2008) CPJ 336 (NC) wherein this Commission took the view that the dealer of the goods cannot be held liable for manufacturing defect……..”

 

In view of above authoritative precedent of the Hon’ble National Commission, we hold that it is only the manufacturer i.e. OP-1 which is liable to adequately compensate the complainant not only for the serious injuries suffered by his wife and the resultant trauma faced by them due to the accident, but, also for depriving them of the use and occupation of the car for a long period of approximately three months.

15.     As a sequel to the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OP-1 is directed as under :-

1. to pay a global compensation of ₹6,00,000/- to the complainant towards medical expenses and endangering the life of the complainant and his wife due to non-opening of the air bags as well as for loss of income etc.
2. to pay an amount of ₹1,00,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay ₹10,000/- to the complainant as costs of litigation.

16.     This order be complied with by OP-1 within thirty days from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 9% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
17.     Since no deficiency in service, unfair trade practice or manufacturing defect is proved against OPs 2 & 3, therefore, the consumer complaint qua them stands dismissed with no order as to costs. 
18.     Certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
27/12/2021	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rajan Dewan]
hg	Member	Member	President