^{UNIONTERRITORY,CHANDIGARH}

^{Lajwanti, aged 62 years, w/o S.Phuman Singh, r/o H.No.295, Phase-XI, SAS Nagar, Mohali, Punjab.}

^{…..Appellant/Complainant}

                                ^{V E R S U S}

^1]      

^2]      

^{……Respondents/Opposite Parties}

^BEFORE:

^{Argued by:                  Sh.Rakesh K.Sharma, Advocate for the appellant}

^{PER PADMA PANDEY, MEMBER}

^{2.                    In brief, the facts of the case are that the complainant purchased Volkswagen Vento Car (Top Model) Petrol Engine, bearing Regd. No.PB-65-N-2852, in May, 2011 from the Opposite Parties by paying full cost of Rs.8,25,750/- (Ann.C-1 & C-2). It is stated that the complainant alongwith her newly wedded son and his wife went to Kasuali, Himachal Pradesh on 31.8.2013 and on return from Kasuali, at around 5.00 P.M. at Kalka Express Highway, they met with a major accident, wherein, her car which was driven by her son was hit from the back side, leading to loss of control and the front of the car hit the divider on the road, then tumbled on to the road twice and dashed against another car standing on the side of the road, before coming to a halt.  The car was badly damaged in the said accident and the complainant, her son and daughter-in-law sustained injuries.  The car was taken to Opposite Party No.2 workshop on the very next day.  It was further stated that in the said accident, shockingly the safety system (airbags) installed in the said car did not respond i.e. none of the airbags opened for the safety purposes at the time of accident. It was further stated that Opposite Party No.2 gave estimate of repair to the tune of Rs.9,99,011.44 (Ann.C-3) and told the complainant that she had to pay 5% charges of the total estimate bill on account of providing the estimates for repair.  Opposite Party No.2 also told that it would charge Rs.500/- per day till the vehicle was not repaired.}

^{3.                    It was further stated that non-opening of the airbags at the time of such a serious accident had left the complainant and her family stunned, especially considering the huge claims and promises made by the Opposite Party-No.1-Company with regard to its technology and safety measures.  The complainant sent an e-mail on 18.9.2013 to the Opposite Party-Company and then sent a legal notice (Ann.C-5 to C-10), but to no effect.  Ultimately, the complainant had to take back the possession of the said car from Opposite Party No.2 on 24.10.2013, but only after paying a sum of Rs.30,000/-, against receipt, Annexure C-11, which had wrongly been charged. It was further stated that the deficiency in service on the part of the Opposite Parties was writ large from the fact that inspite of keeping the car in their possession w.e.f. 01.09.2013 till 24.10.2013 i.e. for 53 days, the Opposite Parties neither got the same inspected from their own technical staff/expert to examine the said defect, nor called upon the complainant to explain her grievance.  It was further stated that the Opposite Parties never visited the complainant, after handing over the possession of the car, for inspecting it. It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice.} 

^{4.                    In its written reply, Opposite Party No.1 stated that it being a Sales Company through its dealers provides a warranty for certain period on the vehicle sold by such dealers upon certain terms & conditions.  The sale of the car was admitted.  It was stated that as regards the mishap, the complainant herself admitted that the impact was from the back side of the vehicle and not from the front before the vehicle collided with the divider of the road and got toppled.  It was further stated that the airbags deployed in the said vehicle function in the event of a severe head on collision, as the censors of the air bags, are situated in the front side of the vehicle, which upon a severe frontal collision send a trigger to the air bags situated inside the vehicle and, as a result, the air bags get deployed.  It was further stated that, in the present case, the vehicle in question was hit from the backside by another vehicle. Thereafter it collided with the center median of the road from the bottom as a result whereof,}  

^{5.                    In separate written reply, Opposite Party No.2 admitted that the car was shifted to its workshop after the alleged accident.  It was also admitted that the estimate of repair for Rs.9,99,011.44, as per the assessment dated 9.9.2013 (Annexure C-3) was given to the complainant and a demand of 5% charges of total estimate bill and charging of Rs.500/- per day till the date the vehicle was not repaired was also made.  It was stated that the information regarding levying of 5% estimate charges was mentioned on the repair order/job card, which was signed by the vehicle owner at the time of handing over of the vehicle for repairs (Ann.C-4/A-4).  It was further stated that 5% charges on the estimate of repair were applicable only for total loss vehicles and not in respect of other accidental cars, which were repairable.  It was further stated that these estimation charges were levied, after opening of job card, inspection and checking of the vehicle. This involved man-power skills, time and Company resources, hence the said charges did not amount to unfair trade practice, on the part of answering Opposite Party. The remaining allegations, were denied, being false.} 

^{6.                    The Parties led evidence, in support of their case.}

^{7.                    After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint.} 

^{8.                    Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.}

^{9.                    We have heard the Counsel for the appellant/complainant, and have gone through the evidence and record of the case, carefully.} 

^{10.                  The Counsel for the appellant submitted that the District Forum failed to appreciate the fact that after being hit from the backside the front side of the car hit the divider before tumbling twuce and then hitting another car standing on the left side of the road.} 

^{a)        Damage to front shock absorbers,}

^{b)        Damage to front wheel bearings}

^{c)        Damage to both front wheel bearing housings,}

^{d)        Damage to front lower axle arms etc}

^{He further submitted that page of 23 of the said estimate report under 3rd head of Parts to be replaced, the following parts which were beyond repairs, were} 

^{a)        Damage to the front bumper,}

^{b)        Damage to bonnet,}

^{c)        Damage to left and right head lamps}

^{d)        Damage to windscreen}

^{e)        Damage to left front door}

^{f)         Damage to windows}

^{g)        Damage to radiator etc.}

^{He further submitted that damage clearly showed huge amount of impact (severe) of collision, which made the said parts beyond repair. He further submitted that still airbags did not respond, amounted to deficiency in service and unfair trade practice.}  

^{a)        During rear collision}

^{b)        If the vehicle rolls over.}

^{He further submitted that the present case did not pertain to either rear collision, or rolling over of the vehicle. He further submitted that the District Forum wrongly observed that the Opposite Parties were justified in claiming} 

^{11.                  It is the admitted case of the complainant that the impact was from backside of the vehicle before it collided with the divider of the road and got toppled. The complainant} 

^{“Description and function of the airbag system}

^{In view of the above, the allegation of the complainant about the defect in the vehicle is not sustainable in the eye of law.}  

^{12.                  The District Forum was further correct in coming to the conclusion that in the repair order (Ann.A-4) placed, on record, by the complainant herself, it was clearly mentioned that “IF VEHICLE IS TOTAL LOSS, 5% OF ESTIMATE VALUE IS CHARGED TO THE CUSTOMER….”. This document also bears the customer’s signatures.  The estimate of repair to the tune of Rs.9,99,011.44 (Annexure A-3) against the price of the vehicle i.e.Rs.8,25,750/- as on 26th April, 2011, clearly pointed towards it having been declared as total loss. Therefore, the Opposite Party No.2 was justified in charging 5% of total estimate bill as per Annexure A-4, repair order, signed by the complainant especially when the vehicle was not got repaired from it, and the same was taken away by the complainant, only after getting the estimate of repairs.}

^{13.                  In view of the foregoing discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.}

^{14.                  For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with  no  order as to costs. The order of the District Forum is upheld.}

^{15.                  Certified Copies of this order be sent to the parties, free of charge.}

^{16.                  The file be consigned to Record Room, after completion.}

Pronounced.

01.05.2014           [JUSTICE SHAM SUNDER [RETD.]

                                                                                                                       [DEV RAJ]

Sd/-

^{[PADMA PANDEY]}

^MEMBER

cmg