NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ram Surat Ram Maurya, Presiding Member
Vinod Premchand Rohida – Appellant
versus
M/s. Skoda Auto India Pvt. Ltd. and Anr. – Respondents
First Appeal No.223 of 2016
(Against the Order dated 19/11/2015 in Complaint No.9/2008 of the State Commission Maharashtra)
Decided on 29.9.2021

IMPORTANT POINTS
(1) ‘Res Ipsa Loquitor’ applicable even if car not in possession of the company.
(2) ‘Res Ipsa Loquitor’ to be examined in light of corroborative evidence.
(3) ‘Service records to be examined if any proof of tampering alleged.

Headnote:

Consumer Protection Act, 1986 – Section 19 - First Appeal [Consumer Protection Act, 2019 – Section 51] – Against Order dt. 19.11.2015 passed by State Commission - Appellant bought Respondent company’s car and kept it pristine – Car caught fire due to mechanical defect – Police Complaint made immediately and insurance claimed - Complaint filed against Company/Respondents for selling faulty car - State Commission held that insurance payout was adequate as car was not in control of Opp. Parties – Held ‘Res Ipsa Loquitor’ not valid in the context – Appeal made to NCDRC – NCDRC held that ‘Res Ipsa Loquitor’ applicable given spate of instances of same make car catching fire – Commission further held that State Commission had not properly examined expert report – Deficiency held to be on Respondent’s end – Commission found Rs. 1 Crore compensation demanded extravagant and awarded Rs. 5,00,000 as costs along with interest @9% from the date of the accident

Held: I have considered the arguments of the parties and examined the record. Admittedly, there is no expert report relating to cause of fire. The complainant stated that he did not notice any defect in the car till the date of incident nor had the service centre pointed out any defect at the time of service of the car. After burning of the car, no expert report could have been obtained in respect of cause of fire as such during pendency of the complaint no effort was made for obtaining expert report. State Commission has drawn adverse inference due to not producing the expert report, relating to the cause of fire, although after burning of the car, no expert opinion could have been obtained relating to the cause of fire. It is well settled that best evidence rule does not apply in civil proceeding which has to be decided on preponderance and probabilities. For reference judgements of Supreme Court in Sunita Vs. Rajasthan SRTC, (2020) 13 SCC 486 and IFFCO Tokiyo General Insurance Company Ltd. Vs. Pearl Beverages Ltd., 2021 SCC OnLine SC 309 are quoted. Expert report may be best evidence. But in the absence of expert report, State Commission ought to have appreciated the other evidence on record, for deciding the controversy. In present case, Kishor, who was present on the spot at the time incident, filed his Affidavit of Evidence and Photograph of the burning car, from which it is fully proved that the car was burnt during drive automatically. Kishor was not cross examined by the opposite parties. State Commission has failed to examine the evidence on record and record any finding on its basis. The opposite parties relied upon judgments reported in Punjab Urban Planning & Development Authority Vs. Shiv Saraswati Iron & Steel Mills, (1998) 4 SCC 539, Rangammal Vs. Kuppuswami, (2011) 12 SCC 220 and Branch Manager, Indigo Airlines Vs. Kalpana Rani, (2020) 9 SCC 424 and this Commission in Revision No. 1854 of 2011 Gopal Aggarwal Vs. Metro Motors (decided on 17.12.2019), which do not help them as the complainant, in present case, has discharged his burden of proof.

The complainant purchased car on 20.03.2006. The car was regularly sent for servicing to the authorised service centre of the company on 21.08.2006, 11.12.2006 and 16.04.2007, i.e. due dates for free service. At the time of third service, meter reading of the car was noted as 22780 kilometre, which shows that the car had run average of about 1600 kilometre per month. In the complaint, it has been stated that the complainant had maintained the car meticulously from the date of its purchase, in the best way and no new thing was done or installed in the car. These facts are proved from the evidence produced by the complainant i.e. various Service Invoices and his Affidavit of Evidence. In none of the Service Invoices, it has been noted that either any part was changed or any new thing was installed in the car. On the date of incident, it had run for about one hour continuously. From the photograph taken at the time of incident, it is proved that fire caught in engine first. These facts have been proved from the Affidavit of Evidence of Kishor, who was present on the spot. Immediately after the incident, the Local Police reached the spot and prepared Panchnama, in which statement of the driver Rajesh Yadav was also noted. On the basis of newspaper report and internet report, it has been submitted that Skoda car used to burn during drive, which shows manufacturing defect in Skoda car. None of the witnesses were cross-examined by the opposite party as such from the evidence on record, it is proved that the car was burnt during drive of about one hour automatically on 31.05.2007.

The complainant pressed the principle of “res ipsa loquitur”, for the cause of fire being attributed to manufacturing defects in the car. The principle of “res ipsa loquitur” has been judicially recognised in India throughout. It has also been statutorily recognised under Section 4, 113, 113-A, 114 and 114-A of Evidence Act, 1872, giving power of “may presume” to the Court. According to the complainant as he has proved the incident of fire in the car during drive, initially from the side of engine although the car was almost new and well maintained. In the absence of any other probable cause of fire, it has to be attributed to manufacturing defects in the car, applying the principle of “res ipsa loquitur”, means “thing speak for itself”.

Supreme Court in Global Motor Service Ltd. Vs. R.M.K. Veluswami, AIR 1962 SC 1, has held an aggrieved person can claim pecuniary compensation and non-pecuniary compensation. There is no duplication in awarding both the compensation. In Helen C. Rebello Vs. Maharashtra SRTC, (1999) 1 SCC 90 and Reliance General Insurance Company Ltd. Vs. Shashi Sharma, (2016) 9 SCC 627 has held the application of general principle under the common law to estimate damages cannot be invoked for computing compensation under the Motor Vehicles Act, 1988. Further, the “pecuniary advantages” from whatsoever source must correlate to the injury or death caused on account of motor accident. Insurance claim obtained, cannot be included in the income of the deceased. (Paras 9, 10, 12 & 16)

Result: State Commission order modified; compensation awarded