Haryana

Karnal

CC/268/2022

Mohit Rana - Complainant(s)

Versus

P.P. Automobiles - Opp.Party(s)

Abhimanyu Lather

10 Oct 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 268 of 2022

                                                        Date of instt.05.05.2022

                                                        Date of Decision:10.10.2023

 

Mohit Rana son of Shri Ravinder Kumar, resident of H.No.91, Sector-4, Part-II, Karnal.

 

                                               …….Complainant.

                                              Versus

 

1.     P.P. Automobiles, Karnal, authorized Dealer of Mahindra and Mahindra Ltd. XUV-300, through its Manager/authorized signatory.

2.     Mahindra and Mahindra Ltd. through its Managing Director/authorized signatory, registered office, Mahindra and Mahindra Ltd. automotive Sector, Mahindra Towers Akurti Road, Kandivali (East) Mumbai 400 101.

3.     Cholamandlam General Insurance Company Limited, Karnal, through its Manager.

                                                                      …..Opposite parties

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

 

 Argued by: Shri Abhimanyu Lather, counsel for complainant.

                    Shri Baljeet Chawla, counsel for OP No.1.

                   OP No.2 ex-parte vide order dated 06.09.2022.

                    Shri Gaurav Gupta, counsel for OP No.3.

 

                    (Jaswant Singh President)

ORDER: 

 

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that on 18.07.2021, complainant purchased a car Mahindra and Mahindra XUV 300 from the OP No.1 with the assurance that the said car consists of two air bags in front seats. Furthermore, there is advertisement on the part of OP No.2 that the said vehicle is manufactured as per their reputed standard and with latest technology and there are two air bags in the said vehicle in front portion which will save the life of the persons in case of any accident. On 02.12.2021, the complainant alongwith his family went from Karnal to Jaipur, when they reached near Kharawar Bye Pass Outer Road, Rohtak and were coming down from the Fly Over, then all the sudden, one stray animal came in front of the vehicle and in order to save the animal, the complainant applied brakes and lost his control, resultantly the car was hit in the wall of the fly over and due to this impact, the complainant fell down from the fly over and the same straight way stood on the earth and during this process, no air bags of front side of the vehicle were opened, due to which the complainant and his wife received multiple injuries. The car was taken to OP No.1 through crane and after one week, the complainant after his recovery somehow from the injuries sent the claim form duly signed by him to the workshop through his father, thereafter, officials of the Op No.1 intimated regarding the accidental vehicle to the insurance company. In this accident, only the complainant and his wife sustained injuries and the children of complainant have not received any injury in the said accident. Besides this, no third party suffered loss in the present accident thereafter, Surveyor   of Cholamandlam General Insurance Company Ltd. declared the vehicle total loss and the OP No.3 was ready to give the amount to the complainant. In the survey, it has been revealed that at the time of accident, the air bags of front seats of the vehicle did not open to save the complainant and his wife from injuries as the air bags were having manufacturing defect. The complainant spent more than Rs.5,00,000/- on his treatment as well as on the treatment of his wife i.e. on medicines, special diet, payment to doctors, payment to attendant, x-rays tests, transportation etc. Hence, the present complaint.

2.             On notice, OPs No.1 & 3 appeared. OP No.1 filed its separate written version and raised preliminary objections regarding locus standi, estoppel, concealment of true and material facts, cause of action, etc. On merits, it is submitted that the airbags are not meant to deploy during every single crush. There are some situations which affect the deployment of airbags. One of the reasons of non-deployment/opening of airbags is that if the driver is not wearing the seat belt, the airbags will not work. The second reason is that the Frontal airbags also wont deploy during the rollover accident or if the car is hit from the side. The other reason of non-deployment of airbags is that accidents which involve hitting small animals such as squirrels, dogs, and deer. Even a properly working airbag will only deploy during certain types of accidents-such as a head on collision where the vehicle is travelling above a certain speed. It may be noted that airbags are designed not to open under all accident situations as this may cause injury to the occupants. It is recommended to be at least 10 inches from where the airbags is located. So even going by the case of the complainant, his car did not meet with hand on collision accident, rather the alleged accident occurred due to coming of stray animal in front of car of the complainant and thereafter his car struck against the adjacent wall of flyover. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.2 did not appear despite service and opted to be proceeded against ex-parte, vide order dated 6.9.2022 of the Commission.

4.             OP No.3 in its written version raised preliminary objections regarding concealment of true and material facts, estoppel, cause of action, etc. On merits, it is submitted that the terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same was served to the complainant alongwith the Policy Schedule. Moreover, it is clearly stated in the policy schedule “the insurance under this policy is subject to the conditions, clauses, warranties, exclusions, etc. Policy is contractual in nature and the claims arising therein are subject to the terms and conditions forming part of the policy. The accident took place due to mechanical defect in the air bags provided by the OP No.2. No allegations or specific pleadings raised against the OP No.3. Complainant not uttered single word against the OP No.3 and no relief has been sought against the OP No.3. The present accident took place due to break fail and manufacturing defect of air bags. Complainant is claiming for compensation of financial loss, paid and suffering, medical bills etc, which he sustained due to OPs No.1 & 2. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             Parties then led their respective evidence.

6..            Learned counsel or the complainant has tendered into evidence affidavit of complainant Mohit Rana, Ex.CW1/A and copy of registration certificate Ex.C1, copy of insurance policy Ex.C2, copy of DL Ex.C3, police report Ex.C4, copy of claim application Ex.C5, copy of treatment record and hospital bills Ex.C6, copy of bills Ex.C7, copy of Amrit Dhara hospital treatment record and bills Ex.C8, photographs of accidental car Ex.C9 and closed on 10.02.2023, evidence by suffering separate statement.

7.             On the other hand, learned counsel for the OP no.1 has tendered into evidence affidavit of Shri Ashish Bambha, Director, P.P. Automotive Ex.OP1/A and copy of booklet Ex.OP1 and closed the evidence on 09.08.2023 by suffering separate statement.

8.             Learned counsel for the OP no.3 has tendered into evidence affidavit of Vidhi Passi, Assistant Manager Legal Ex.RW1/A, copy of consent letter on stamp paper submitted by the complainant Ex.R1, copy of insurance policy Ex.R2, copy of terms and conditions of the policy Ex.R3 and closed the evidence on 09.08.2023 by suffering separate statement.

9.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

10.           Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued, the complainant purchased the car Mahindra XUV 300 from the OP No.1 with the assurance that the said car consists of two air bags in front seats. On 02.12.2021, the complainant alongwith his family was going from Karnal to Jaipur, when they reached near Kharawar Bye Pass Outer Road, Rohtak and in order to save the animal, the car was hit in the wall of the fly over and due to this impact, the complainant fell down from the fly over and during this process, no air bags of front side of the vehicle were deployed, due to which the complainant and his wife have received multiple injuries. In the survey, it has been revealed that at the time of accident, the air bags of front seats of the vehicle did not deploy, as the air bags were having manufacturing defect. The complainant spent more than Rs.5,00,000/- on his treatment as well as on the treatment of his wife and lastly prayed for allowing the complaint. Learned counsel for complainant relied upon the case law titled as Hyundai Motors India Limited Versus Shailendra Bhatnagar Civil Appeal No.3001 of 2022 Date of Decision 20.04.2022.

11.           Per contra, learned counsel for the OP No.1, while reiterating the contents of written version, has vehemently argued that the airbags are not meant to deploy during every single crush. There are some situations which affect the deployment of airbags. One of the reasons of non-deployment/opening of airbags is that if the driver is not wearing the seat belt, the airbags will not work. The second reason is that the Frontal airbags also won’t deploy during the rollover accident or if the car is hit from the side. Even a properly working airbag will only deploy during certain types of accidents-such as a head on collision where the vehicle is travelling above a certain speed. In the present case, alleged accident occurred due to coming of stray animal in front of car of the complainant and thereafter his car struck against the adjacent wall of flyover and prayed for dismissal of complaint.

12.           Learned counsel for the OP No.3, while reiterating the contents of written version, has vehemently argued that the terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same was served to the complainant alongwith the Policy Schedule. The accident took place due to mechanical defect in the air bags provided by the OP No.2. No allegations or specific pleadings raised against the OP No.3 and prayed for dismissal of complaint qua the OP No.3.

12.           Admittedly, the complainant purchased the vehicle in question from the OP No.1. It is also admitted that the vehicle in question met with an accident. It is also admitted that the complainant and his wife suffered injuries and remained admitted in the hospital. It is also admitted that the airbags of the car were not deployed.

13.           The OPs has alleged that the non-deployment/opening of airbags is that SRS i.e. supplementary restraint system is designed to deploy the front airbag only when an impact is sufficiently severe and when the impact angle is less than 30 from the forward longitudinal axis of the vehicle. So, it is their contention that the impact of collision is not sufficient to open the airbag. From the photographs Ex.C9, we presumed that the car in question has been totally damaged. Since, the car has been completely damaged from all the sides, hence, it cannot be said that the impact of collision was not sufficient to deploy the airbags, which proves that the car was having inherent manufacturing defect. However, at the time of selling the car and in advertisements though much predominance was given to safety features of the car particularly about Air bags and its numbers. Nothing was mentioned that airbags deployment is subject to certain conditions or contingencies. A layman is not meant to be an expert in physics calculating the impact of a collision on the theories based on velocity and force. Such like Air Bags further endanger the lives of the customers. The customers think that their lives would be saved because they are armed with Air Bags. The opposite parties are collecting crores of rupees from innocent customers throughout the country on the pretext of life saving Air Bags. So many customers are lead up the garden path. This is a very serious matter and the OPs should stop selling such like vehicles with Air Bags unless or until they are cent percent without flaws of any kind. In Shailendra Bhatnagar’ case (supra), Hon’ble Supreme Court of India, has held that airbags of vehicle did not deploy at the time of collision. Failure to provide airbag system which would meet safety standards as perceived by a car buyer of reasonable prudence should be subject to punitive damages which can have deterrent effect. In computing such punitive damages, capacity of manufacturing enterprises should also be factor.  

14.           To rebut the evidence produced by the complainant, OP no.2 (being manufacturer) did not appear and opted to be proceeded against exparte. Thus, the evidence produced by the complainant is unchallenged and unrebutted and there is no reason to disbelieve the same. Hence, complaint qua the OPs no.1 and 3 deserves to be dismissed.

15.           Keeping in view the ratio of the law laid down in the abovesaid judgment and the facts and circumstances of the present complaint, we have no hesitation to establish that vehicle in question was having inherent manufacturing defect.

16.           Due to non deployment of airbags, the complainant and his wife suffered various injuries and remained admitted in the hospital and spent more than Rs.5,00,000/-. To prove his version, complainant has placed on record treatment record and bills Ex.C6 to Ex.C8. Instead of injuries, the complainant has also suffered mental agony. If at all, the airbags were deployed at the time of accident the injuries and mental agony sufferings would be minimized. So, considering the impact of the defect caused to the complainant, the complainant is entitled for the amount spent by him on his treatment as well as treatment of his wife alongwith compensation for mental agony and litigation expenses.

17.           Now the question remains to decide is with regard to the quantum of compensation be awarded to the complainant. The complainant has claimed an amount of Rs.20,00,000/- as compensation on account of treatment, mental and physical pain and agony etc. The amount sought by the complainant is very higher side, it would be justified, if an amount of compensation of Rs.6,00,000/- in all respects be awarded to the complainant.

19.           In view of the above discussion, we partly allow the present complaint and direct the OP No.2 (being manufacturer) to pay Rs.6,00,000/- (Rs. six lakhs only) to the complainant as compensation on account of treatment, mental agony, harassment suffered by him and towards litigation expenses. The complaint qua OPs no.1 and 3 stand dismissed. This order shall be complied within 45 days from the receipt of copy of this order. It is made clear if the awarded amount is not paid by the OP no.2 within stipulated period then this amount will carry interest @ 9% per annum from the date of announcement of the order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:10.10.2023 

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

(Vineet Kaushik)            

                          Member