- (1.) HEARD Mr. P.A. Vakil learned Advocate for the complainant, Mr. Pandit learned Advocate for the Opponent No. 1 and Mr. Ketan Kamdar learned Advocate for the Opponent No. 2. Complainant had filed this complaint with prayer to direct the respondent to replace the complainant s car with a new Mercedes Benze of the same class which he purchased form the Opponent No. 2. In the alternate with a prayer to direct the respondents to pay to the complainant an amount of Rs. 20,82, 421 with interest @ 18% per annum from the date of accident i.e. from 28.5.2003 till realization, and to direct the respondent to pay to the complainant an amount of Rs. 70,00,000 under the head of "mental, physical and financial hardship, trauma, stress and inconvenience, deprivation of the enjoyment of his vehicle on account of the defective goods supplied and deficient services rendered by the respondents" with cost.
(2.) FACTS leading to the filing of the present complaint in short are as under: That the complainant purchased Mercedes Benze (Model E 230 C 1998 from the opponent No. 2 on payment of Rs. 29,46,570 vide cheque No. 424918 dated 10.11.1998. Opponent No. 1 is a manufacturer of the aforesaid car. Aforesaid car was purchased for the personal use of the complainant. It bears the registration No. GJ 1BP 8874. On 28.5.2003, complainant was driving his car on Ahmedabad Vadodara Express Highway at an approximate speed of 100 110 kms. At around 7.00 p.m. near Nadiad the left side rear tyre of the car bursted making the complainant lose his control over the car and the car dashed with the road divider and crossed the road divider and landed on the other side of the highway. Complainant suffered multiple injuries and was rushed to the SAL Hospital at Ahmedabad at 23.05 hours. On the very same day he was operated upon. He suffered fracture on his right shoulder. He was discharged from the hospital on 6th June, 2003. He was advised rest for 120 days. Complainant managed his car towed from the place of incident to the workshop of the opponent No. 2 because opponent No. 2 though informed about the incident had shown inability to tow the car to his workshop because of want of such arrangement. The brochure of the said vehicle being circulated by the respondent No. 2 on behalf of Respondent No. 1 promised a world class automobile to the customer. The said brochure also strongly highlighted the reliability, safety and durability features of the said vehicle expecially features regarding the opening of frontal and side air bags in the event of any impact at the time of accident. The tyres used in the said vehicle were also of Bridge Stone Company which was a recognized and reputed name in the tyre industry. Not only that one of the features which attracted the complainant was the unique safety mechanism of the vehicle by which the dickey of the car would open immediately in case of collision which would reduce the speed of the vehicle thereby reducing the impact of the collision therefore complainant was interested to place the order of the aforesaid vehicle. It is alleged in the complaint that the tyres of the car were defective or of inferior quality. The car had run for only 18,000 kms. approximately in five years and there was no plausible cause for the tyre to burst on account of wear and tear. Hence, complainant had alleged that because of the defective tyre and because of the safety mechanism in the car were defective, accident had occurred causing grievous injury to the complainant. He is a whole time Director of Meghmani Organics Limited, having annual turnover of Rs. 20,240.34 lakh for the last financial year. The complainant is responsible for all purchase of raw materials and all other import items for the company. The monthly purchase of the company is 15 -20 crores for which complainant is responsible. At the time of incident the complainant was also in -charge of purchase of raw material for the project of Agro Division at Ankleshwar. Because of the injuries sustained by the complainant in the accident, he was compelled to take rest for 120 days and he had undergone extreme pain and agony and because of his absence the company has suffered a loss of Rs. 2 cores and there was a delay in mobilizing raw materials and getting the proposal of the company s project at Ankleshwar, which has caused loss in the project for Rs. 1.5 cores However, damage is estimated to the tune of Rs. 70 lakh. It is also alleged in the complaint that the car was insured with the Insurance Company and the Insurance Company had paid Rs. 9,44,322 after deducting salvage value. As per the estimate given by the opponent No. 2 an amount of 28 -30 lakhs is required for the repair of the car. Therefore, complainant has not repaired the car and kept it in the farm of the complainant because the Opponent No. 2 did not allow the complainant to keep his car in the workshop the Opponent No. 2 for a long time and the Opponent No. 2 also demanded some amount for keeping the car in the work shop of the opponent No. 2 This accident has occurred because of the inferior quality of the car tyre which bursted and even dickey of the car did not open and driver side air bag did not trigger at the time of accident. Hence, opponent No.2 who is an authorised dealer and Opponent No. 1 being manufacturer, both are jointly and severally liable for paying the amount claimed in the complaint. It is also alleged in the complaint that complainant wrote a letter dated 13th June, 2003 to the Customer Care Division of Daimler Benz i.e. Opponent No. 1 enclosing therewith pictures of the condition of the car, and his physical sate and details of financial loss suffered by the complainant. However, information was required by the opponent No. 1 vide its letter dated 18th June, 2003 but the complainant was undergoing treatment and therefore he could not reply to that letter and on 25th June, 2003, complainant received a letter from Respondent No. 2 wherein it was contended that the side air bags in the car did not trigger because there was no side impact on the car and also the complainant was not wearing the seat belts. Immediately thereafter on 7.7.2003 the complainant received a letter from General Manager, after Sales and Service of the Respondent No. 1, asking the complainant to furnish information as sought for by their earlier letter. That on 9.7.2003 under the signatures of the same two officers of the Respondent No. 1, it was conveyed to the complainant that cause of accident is mentioned in the letter dated 26.6.2003. At that point of time respondent No. 1 did not think it necessary or appropriate to have the car inspected by its experts and agreed with the anlysis arrived at by the Respondent No. 2 in its letter dated 25th June, 2003. Complainant had cooperated with the investigation made by the respondent. He sent driving licence and Insurance Surveyor s report to the respondent vide letter dated 10th July, 2003. But with great surprise the complainant received a letter date 21.7.2003 that there was no need to further investigation. Therafter on 4.8.2003 the complainant received a letter from Respondent No.1 requiring the complainant to give further information so that German Technical Expert can carry out further inspection of the vehicle and that on receipt of the expert s opinion and thereafter technical expert would evaluate all information and conduct an in -death analysis of the information so collected. Because of the business commitment of the complainant he had also to undertake domestic as well as international travels, which were cancelled or postponed because of the injuries. The complainant sent aforesaid information to the respondent vide letter dated 10 March, 2004 and it was a letter -cum -notice wherein because of the deficiency in service, the complainant asked for the relief of compensation and replacement of the car. That on 15.4.2004 Respondent No. 2 informed the complainant that they ould like to inspect the vehicle by DCAG with a view to satisfy the issues raised by the complainant with regard to functioning of safety equipment in his car. Complainant agreed to it and informed the Respondent No. 2 vide e -mail dated 19th April, 2004 to arrange meeting on 28th April, 2004. On 28th April, 2004 inspection was carried out by the representative of the DCAG in presence of the officers of Bridge Stone India Pvt. Ltd., (BSCPL). Mr. Sanjay Shah from the office of the Respondent No. 2 representative of the Respondent No. 1 and representative of the complainant. It was decided by the technical expert of DCAG to remove four wheels with tyres and one spare wheel with tyre and sent for further analysis and inspection to be carried out at the work shop of the Respondent No. 2 Complainant gave his consent to it On 13th May, 2004, the complainant received information from BSIPL that damaged rear left tyre was required to be sent to their office, Mumbai. Prior to that complainant did not receive any progress of inspection report or analysis carried out by the German Expert. Vide letter dated 24.5.2004 again BSIPL requested for consent of the complainant to take rear left tyre to their Bombay office for their inspection and analysis. Respondent No. 2 also faxed to the office of the complainant a copy of the letter dated 27th May, 2004 addressed by the Respondent No. 1 to the complainant at his residential address stating therein that the assistance of BSIPL was required for finalization of the analysis, indirectly requesting the complainant to give his consent. It was also informed in the letter dated 4.6.2004 that the complainant was not cooperating. Complainant replied through his Advocate on 16th June, 2004 and any how permission was granted to BSIPL for carrying out the inspection on the damaged tyre with a request that tyre being an important evidence tampering of evidence should not take place. Respondent No. 1 was informed vide letter dated 8.6.2004 that the complainant granted permission and it was the responsibility of the Respondent No. 1 to ensure no tampering would take place. Respondent No. 1 was asked to submit copy of report or analysis received so far. Respondent No. 2 was asked to send remaining four tyres and accordingly on 10.6.2004 Respondent No. 2 sent and fitted four damaged tyres of the complainant s vehicle. On 30.6.2004 damaged tyre was received by BSIPL from respondent No. 2 and on 17th July, 2004 complainant sent photographs taken at the accident site after the accident and the X ray pohots of the complainant. Complainant was never informed about the outcome of the analysis report and inspection carried out by the German Expert and BSIPL. This also amounts to deficiency of services. It is alleged by the complainant that relief claimed by the complainant is based upon manufacturing defect of the vehicle purchased by the complainant and deficiency in serivce on the part of the respondents and unfair trade practice adopted by the respondent. Along with the complaint, application under Sections 13(3B)(3) and 13(4)(ii) of the Consumer Protect Act, 1986 was filed with a prayer that the Respondent No. 1 be restrained to carry out further investigation of rear left tyre which was taken by BSPIL and Respondent No. 1 be directed to produce the damaged tyre for the examination of this Commission and the tyre be kept in the custody and control of the person specified by this Commission. After hearing the submissions advanced by the Advocate for the complainant the complaint was rejected at the admission stage vide order dated 15th October, 2004. First Appeal No. 431 of 2004 was filed by the complainant before the National Commission with a prayer to quash and set aside the order. Complaint was remanded to the State Commission for deciding the matter on merit after giving sufficient opportunity to lead additional evidence by filing affidavits and if necessary after taking opinion of the expert to do substantial justice. That is how the matter came before this Commission. Written statement of the Opponent No.1 is filed at Exh. 8 on 10th October, 2005. Written statement of Opponent No. 2 is filed vide Exh. 11. Rejoinder of the complaint is at Exh. 17. Complainant along with rejoinder produced report dated 22.9.2006 of Expert Shri C.M. Pandya. Affifavit of Shri C.M. Pandya is dated 22.8.2007. Affidavit of complainant filed vide Exh. 6. Affidavit of Opponent No.1 is at Exh. 20. Affidavit of Bridge Stone India Ltd. filed vide Exh. 21. Report of ARAI is filed vide Exh. 32. Report of DCAG is also produced by the respondent. Respondent No. 1 has filed written statement Exh. 8 wherein it is contended that they had exported a good part of cars manufactured in India. As per the law settled by Hon ble Supreme Court, Hon ble Commission has no jurisdiction to adjudicate claims for compensation arising out of motor vehicle accidents. Complainant was using the car for commercial purpose and therefore complainant is not a consumer. Claim is a speculative and vexatious claim. Looking to the reports of expert DCAG and ARAI vehicle was only subject to frontal impact forces and did not sustain any side impact. Therefore, there was no reason for the right side air bag to deploy. The car purchased by the complainant is not designed to have the dickey opened during collusion. Complainant was not wearing his seat belt at the time of accident and complainant could have avoided the injury if he had worn the seat belt. Report of Bridge Stone India Pvt. Ltd., confirmed that the tyre burst was due to external factors and not due to any defect in manufacturing. Complainant had settled his claim with the Insurance Company in respect of his five years old car for Rs. 9,44,322 and complainant is now claiming additional amount of Rs. 20,82,421 towards the price of the car with interest @ 18% per annum and Rs. 70 lakh by way of compensation for mental agony. Thus it is crystal clear that there is no rational basis whatsoever in the claim. Reports of DCAG and Bridge Stone India Pvt. Ltd. do not support the case of the complainant. Looking to the injuries sustained on the shoulder of the complainant if he had worn the seat belt, this injury could have avoided. Therefore, there being no manufacturing defect in the vehicle. Manufacturing in the safety mechanism complaint deserves to be dismissed. Written statement of opponent No. 2 is filed at Exh. 11. Purchase of car from opponent No. 2 is not disputed. Looking to the damage of the car it must have driven much higher speed more than 100 kms. per hour. Because of the hot summer and the car was being driven at higher speed, tyre must have burst. Car was brought to the workshop of the opponent No. 1 and it was found that no manufacturing defect in the car. Reports of DCAG and Bridge Stone India Pvt. Ltd., do not support the case of the complainant. There being no sufficient side impact of the car side air bag did not trigger. Damage to the vehicle in this impact is frontal impact forces and did not sustain any side impact. The seat belt was not used by the complainant and therefore there was grievous injuries on the shoulder of the complainant. There was no proof with regard to defect in the tyre of the car. Report of Bridge Stone India Pvt. suggests that tyre was not defective. The complainant has used his car for about four years without complaint regarding manufacturing defect in the car. Opponent No. 2 never told complainant that safety mechanism of opening of dickey at the time of collision. Complainant s letters were replied but any how for satisfaction of the customer, analysis were carried out. Therefore, there being no substance in the complaint, complaint is required to be dismissed.
(3.) THE following facts are not in dispute: (1) The car purchased by the complainant d (2) Payment of Rs. 30,24,743 which includes price of the car, insurance, RTO taxes, etc. and the payment made by the complainant vide Cheque dated 10.11.1998 to the Respondent No. 2. (3) Respondent No. 2 is an authorized dealer of the car and Respondent No. 1 is manufacturer of the car. (4) Accident occurred on 28.5.2003 because of the bursting of left side rear tyre of the car near Nadiad on the Ahmedabad -Baroda Hinghway and the car dashed with the road divider and crossed the road divider and landed on the other side of the highway. (5) Because of the accident, complainant suffered fracture on his right shoulder and he had taken treatment at SAL Hospital. He was discharged from the hospital on 6th June, 2003 and he was advised rest for 120 days. (6) Correspondence between the complainant and respondents and at the time of accident driver side of air bag was not trigger and dickey of the car did not open. (7) With the consent of the parties, report of ARAI is called for and produced. (8) Complainant is a whole time Director of Megamani Organic Ltd. (9) The car was insured and the complainant had received an amount of Rs. 9,44,322 from the Insurance Company after deducting salvage value of Rs. 4,67,678 of the car as the same is retained by the complainant. Complainant had purchased Mercedes Beng" car in his name form the opponent No.2 who is an authorized dealer of the aforesaid car and opponent No. 1 is manufacture of the car. There is no evidence that the vehicle in dispute was purchased by the company namely Megamani Organic Ltd., for their business. It cannot be said that the vehicle was used by the Meghmani Organic Ltd., for the commercial purpose. Therefore, submissions made by the advocate for the respondent that the complainant is not a consumer and vehicle was purchased for the commercial purpose is not upheld.;