IA/4616/2023

Learned Counsel for the Applicant after arguments seeks permission to withdraw this Application.

The Application is accordingly rejected as withdrawn.

CC/413/2020

1. Heard learned Counsel for the Parties. The Complaint is about an alleged deficiency arising out of a manufacturing defect in the deployment of air bags of a vehicle.
2. The Complainant purchased an Innova Crysta model car from the Opposite Party No.-2 on 30.04.2018 who are the dealers of the Opposite Party No.-1.
3. It may be stated at the outset that the Opposite Party No.-3, Union of India has been impleaded but in the opinion of the Commission the said Opposite Party keeping in view the allegations and reliefs claimed, is neither a proper nor a necessary party to this Complaint and therefore it is absolutely unnecessary to call upon them to answer this Complaint.
4. The dispute in essence is that the Complainant’s vehicle met with an accident on 11.07.2019 and the car was fully damaged wherein the Complainant suffered injuries. According to him the accident was horrendous and the vehicle had been damaged entirely on account of the direct impact on the vehicle having run overboard across the road and then having dashed against a pillar.
5. The vehicle was insured and therefore the Complainant sent it to the dealer for assessing and for adjustment and repair for which certain invoices and bills were raised. The said invoices and bills were made the basis for the insurance claim which admittedly was indemnified and the entire expenses for repair were borne by the Insurance Company. The vehicle received complete repairs and was delivered back to the Complainant.
6. The Complainant has come forward with a claim that he informed Opposite Party No.-1 about the entire incident and also the reimbursement by the Insurance Company accepting the factum of the accident. In his mail dated 27.08.2019 the Complainant made allegations that there was a complete failure of the safety features as provided for under warranty, more particularly the non-deployment of the air bags on collision. The submission is that had the air bags opened, the Complainant would have saved himself of the injuries that he had sustained and according to the Complainant this was a clear manufacturing defect, as due to the huge impact suffered by the vehicle, the only presumption that can be drawn is that the safety features completely failed hence the company was liable to indemnify the Complainant for this loss.
7. Learned Counsel submits that having failed to get any reply, a legal notice was sent on 29.01.2020 to which a reply was received on 02.03.2020 denying the allegations and the liability. Learned Counsel for the Complainant urges that the manner in which the insurance claim was indemnified on the basis of a survey report clearly establishes that the Insurance Company was convinced of the claim and in order to support the contention before this Commission, learned Counsel submits that he had also made requests to the Insurance Company to supply a copy of the Insurance Policy, final survey report and the liability letter. The said request was replied through a letter dated 03.11.2020 and a copy of the policy as well as the final survey report has been supplied but without the details of technical investigations that were carried out. It is urged that the cause of accident mentioned in the final Survey Report clearly records that the damage was caused due to a sudden high beam light reflected on the eyes of the customer who drove his vehicle on one side and then the vehicle crossed the road side on the heavy stones laid besides and then hit a pillar. It is urged that this recording of the cause of accident clearly establishes the huge impact which the vehicle suffered from the front causing its bumper, radiator and other frontal equipments being damaged completely. It is submitted that the impact was direct from the frontal side which is also evident from the photographs which are on record. He submits that the photographs in order to assess the damage caused are legally acceptable and has relied on a couple of decisions to substantiate his submissions.     
8.  He has then placed on record the relevant extract of the owner’s manual referring to the air bag parameters for deployment to urge that the vehicle completely failed to live up to the said parameters which was also a clear violation of the warranty clause.
9. It is undisputed that the vehicle was within the warranty period and therefore the Opposite Parties are not only liable to refund the full purchase value of the car to the Complainant but are also liable to pay damages. The prayer therefore is seeking refund of the entire purchase value of the vehicle and to award a sum of Rs.2 crores to pain and injuries and other expenses related therewith.
10. The first objection taken by the Opposite Party is that the vehicle had already been sold off by the Complainant and therefore there is no legal or jural relationship surviving for the purpose of continuing this Complaint. This aspect had been specifically raised by the Opposite Party by moving a separate Application being IA No. 4616 of 2023 which was withdrawn by the learned Counsel for the Opposite Party and has been accordingly rejected as not pressed today by a separate order.
11.  It is then contended that there is no technical or any other report or any evidence whatsoever to construe that there was any manufacturing defect vis – a – vis the deployment of air bags. It is urged that there is no document nor any indications in the final survey report relied on by the Complainant to substantiate this claim. However, the major argument of the learned Counsel for the Opposite Party is that once the vehicle had met with an accident and the Complainant had approached the Insurance Company for its claim after having sent the vehicle for repairs to the dealer, no intimation whatsoever of any kind was given to Opposite Party No.-1 about any defect or any complaint of defect relating to the air bags. It is submitted that in the absence of any such intimation about the alleged manufacturing defect, there was no opportunity or information to Opposite Party No.-1 to verify this allegation which was allowed to dissolve by virtue of the repairs that was already undertaken and the delivery of the vehicle was given by the dealer after repairs to the full satisfaction of the Complainant. Not only this the vehicle was also sold off and therefore the Opposite Party No.-1 in the absence of any information had no opportunity to diagnose, assess or verify the allegations of a manufacturing defect through any experts or engineers. It is urged that had the Complainant informed Opposite Party No.-1 claiming coverage of warranty immediately upon the accident even before it was repaired, Opposite Party No.-1 through its experts and engineers could have investigated in order to assess the allegation of the manufacturing defect in the deployment of air bags. He submits that this assessment has to be made on a technical investigation keeping in view the nature of impact, the status of the damage and also the other internal examination of the vehicle to find out as to whether there was any actual defect being covered under the warranty. The contention is that once the vehicle was entirely repaired without any report of any such defect in deployment of air bags, the assumption on the part of the Complainant is without any proof. Consequently the Opposite Party No.-1 cannot be saddled with any such liability in the absence of any information, investigations or proof.
12.  In Rejoinder learned Counsel for the Complainant urged that the photographs that were available with the insurers also seem to have been in the possession of the company which is evident from the reply given by them to the legal notice sent by the Complainant. The contention is that these are the very same photographs which were considered by the Insurance Company also for indemnifying the loss suffered by the Complainant. The contention therefore is those photographs are evidence of the serious frontal impact on the vehicle to infer that the said impact as witnessed in the photographs should have led to the deployment of the air bags which did not happen and therefore this defect is an inherent manufacturing defect.
13. Some judgments have been cited at the bar, but in the opinion of the Commission they are inapplicable and the same need not be discussed, as on facts, the argument of the Opposite Party is more than convincing the that Opposite Party No.-1 was neither informed, nor any opportunity was given to them to investigate the status of the vehicle after the accident nor any other expert evidence or technical opinion indicating a manufacturing defect was available. The allegations made are theoretical without any actual proof of the technical defect to establish a manufacturing deficiency. The Opposite Party No.-1 is correct in its defense that the Complainant after having retrieved the vehicle and having received the insurance claim for the entire loss suffered, took delivery of the vehicle driving it back home and after a substantially long time sent a legal notice on mere theoretical bald allegations without any proof. Thus it is a clear case where the object of the accident and the subject matter of the allegations regarding manufacturing defect was not subjected to any technical or expert examination or opinion about the existence of a manufacturing defect. The vehicle was repaired and taken back and thereafter sold by the Complainant. The Opposite Party No.-1 therefore had no occasion to examine this allegation of a manufacturing defect to which the learned Counsel for the Complainant is unable to give any satisfactory response or reply.
14.  The Complaint therefore lacks merit for the aforesaid reasons and is accordingly rejected.