Sureshchandra vs MARUTI UDYOG LTD

THE complainant is a medical practitioner practicing in the city of Jamnagar. THE complainant had purchased a new Maruti 800 Standard car from the opponent No. 2, the dealer of opponent No. 1. THE opponent No. 2 is alleged to be only the agent and dealer of Maruti car which is manufactured by the opponent No. 1 having its head office at New Delhi. THE engine number, chassis number and other particulars have been given in the complaint. THE complainant is alleged to have been paid Rs. 133,904.70 towards the price of the car, Rs. 3749/- by way of octroi and Rs. 3,493/- as premium for the insurance with the opponent No. 2. He had also paid RTO tax of Rs. 1,900/- and about Rs. 5,000/- for the extra accessories like tape recorder, seat cover, front bumper and other minor accessories. According to the complainant he had spent about Rs. 148,046.70 for the purchase of the car. According to the complainant, the car was hypothecated with State Bank of India, Jamnagar and the loan was taken under which he was required to pay by installments. THE car was delivered to him on 17.7.91. THE car was sent for first free service on 7.8.91. THE car had done 563 Kms. only when it was serviced in the authorised service station of the opponent No. 1. In para 5 of the complaint the complainant has alleged that on 20.8.91 the complainant had parked the car at about 5 p.m. and at about 11.30 p.m. before retiring, he checked his vehicles including the Maruti car, scooter moped etc. He had not found any thing unusual and, therefore, he went to sleep in his room. However, the car caught fire on that night and was burnt. According to the complainant the car was parked in his garage which is a part of the bungalow and, therefore, there is no chance of any mischief by anybody. THE Panchnama is alsoon the record wherein it is written that in the building there was an open garage with roof over it which means that the garage had no doors but only roof and was situated in the building itself near the main door. THE complainant had filed the FIR before the police authorities and the Panchnama was prepared by the police which had been produced at Annexure-B. THE car was insured with the opponent No. 3 and, therefore, the complainant informed the Insurance Company and a spot survey was made and thereafter the final report was submitted. THE car was assessed in total loss. According to the complainant the car caught fire because of the short circuit in the wiring of the Maruti car of the complainant which was on account of the negligence on the part of the opponent No. 1. THE complainant therefore wrote a letter to the opponent No. 1. on 23.8.91 which was replied by the manufacturer promising that they will investigate the matter through concerned officer but the complainant has not heard anything as to what investigation was made by the manufacturer. Nobody had come even to see the car which was in burnt condition. THE burnt car has been taken away by the Insurance Company-opponent No.3 as salvage and they had paid the full amount of Rs. 133,550/-. THE complainant had also checked the wiring of his bungalow from the authorities of Gujarat Electricity Board and the Board had submitted a report mentioning that there was no short circuit in the electrical installation of the complainant''s bungalow. THE fire brigade of Jamnagar Municipal Corporation has also made a report stating that the car burnt accidentally which means that it had no outward (external) connection. Since the opponents No. 1 and 2 did not care to inspect the car or pay the damages, the complainant has filed this complaint and claimed Rs. 148,046.70 as loss sustained by him because of the fire to his car. THE cause of fire as alleged by the complainant is manufacturing defect. In support of his contention, the complainant has filed his own affidavit and the affidavit of one Shri Jagdish Keshubhai Maru, an automobile engineer, holding Diploma in Automobile Engineering of Polytechnic College of Bhavnagar who has passed the examination with distinction. He was working as a motor mechanic and having a garage at Rajkot. Shri Maru has examined the car and has come to the conclusion that the wiring of the car was such that if there is any defect in the Soleoid switch 12 volt current will continuously flow (reverse flow) even though the ignition key is off with the result the ignition coil will become hot and hot after 4/5 hours and it may set fire in the car. According to the arguments of the learned Advocate of the complainant, the fact that the car was parked in the garage within the bungalow premises though there was no doors to the garage, there was no other possibility of fire except some internal cause in the car. THE key was with the complainant. THErefore either there might be some defect in the wiring system or inherent manufacturing defect in any of the electrical apparatus which might have discharged the electrical spark resulting into short circuit and fire. In any case, according to the complainant it was the duty of the opponents No. 1 and 2 to come and inspect the car and give the report either to the company and /or the complainant.

IN pursuance to our summons the opponent No. 1 has filed a written statement in which the opponent has repudiated the claim and has also raised the preliminary objection that the complainant had filed a complaint No. 393/92 (the correct number is 373/92) which has been dismissed by this Commission on 7.7.92 for default since the complainants did not appear before the Commission. The second complaint having been filed by the complainant will be barred by the principles of res judicata as provided under Section 11 of the Civil Procedure Code. On merits, the opponent No. 1 has stated that the opponent No. 2 is the authorised dealer of opponent No. 1 and the relationship between the parties is governed by the dealership agreement between them. That agreement is not produced by the opponent No. 1. The opponent No. 1 has further denied that the car caught fire because of the manufacturing defect in the wiring particularly when the fire took place after one month. Previously the complainant had not made any report of any defect in the wiring, It shows that there was no manufacturing defect in the vehicle. The opponent has further stated that the garage having no doors, this might be the handiwork of mischief mongers or anti social elements. The fire had taken place after 10 hours after the vehicle was parked in the garage which was at 3 a.m. The vehicle was inspected by the approved Surveyor of the INsurance Company but had not pointed out any cause which led to fire in the vehicle. These are the material averments and case of both the parties. The questions therefore arise for our consideration are: (1) whether the second complaint suffers from principles of res judicata; (2) whether fire was caused on account of any manufacturing defect; (3) what can be the probable cause of fire in the car and; (4) is the complainant entitled to any damages ? If yes, what should be the damages.

So far the preliminary contention is concerned, it has no merits. The first complaint was dismissed for default and not on merits. Neither the complainant nor the opponent was present and, therefore, the complaint had to be dismissed for want of prosecution. Section 11 of the Civil Procedure Code is based upon the principles of res judicata which specifically lays down that the doctrine of res judicata will be applicable only when the second case is filed by between the same parties for the same cause of action and which case is decided by the Court of competent jurisdiction on merits. In the instant case, the first complaint was not disposed of on merits and, therefore, the complainant has a right to bring the second complaint if the same is within the period of limitation. The second complaint has been filed within 8 months from the date of cause of action and, therefore, the question of limitation does not arise. We are, therefore, of the opinion that the second complaint is maintainable and can be decided on merits. The contention of the opponent No. 1 is, therefore, rejected.

SO far the merits are concerned, there is no doubt that the car caught fire when it was parked in the garage which is within the compound of the bungalow. The car caught fire between 11.30 p.m. and 3 a.m. Probably it must be around 2.30 a.m. to 3 a.m. since the complainant and other persons awoke at that time when they saw the fire and smoke. It also appears that the complainant has taken all steps that are necessary for getting the claim. He has filed the FIR, got the Panchnama prepared, informed the Insurance Company as well as the opponents No. 1 and 2 who have promised investigation into the matter. None of the opponents had not even taken any trouble to send some technician or Surveyor for examining the burnt car. The car was kept for sometime in the garage. The Insurance Company itself has surveyed the damages and had instantly paid the amount of insurance. They did not find any mischief or fraud on the part of the complainant or any other person. Though the opponent No. 1 has filed a written statement, it has not cared even to file the affidavit. Cargo Motors, the opponent No. 2 who had actually delivered the car as agent of the opponent No. 1 has not filed any affidavit. In these complainant, we have only the evidence of the complainant on affidavit and a motor mechanic - a Diploma holder, Mr. Jagdish Maru.

THE circumstantial evidence shows that the car was parked in the garage which is within the premises of the bungalow. THE complainant is a medical practitioner and may not be interested in destroying the car. THE incident has happened after midnight where there is minimum possibility of any miscreants setting fire to the car. THEre is no short circuit in the bungalow. Even the Surveyor of the Insurance Company has not found any mischief or fraud. In these circumstances, in absence of any other evidence of manufacturer or dealer, which was supposed to bring to our notice, we have to rely upon the evidence produced by the complainant and the surrounding circumstances lead us to believe that there is no external reasons to believe that the car might have caught fire. THE fire can be reasonably said to be due to the internal cause i.e. car itself. Either there must be sparking on wiring on account of inherent defect or malfunctioning of some apparatus. THEre must be some reason for fire and that reason shall have to be found out within the car and not outside because there is no evidence of any outside reason. THE opponents have not even cared to inspect the car or produce the report. In these circumstances, we have no alternative axcept to accept the argument of the complainant and come to the conclusion that the car caught fire on account of some inherent defect in the car which can be attributed to manufacturing defect. In any view of the matter, according to our opinion the manufacturer is liable to the damages to the complainant. THE complainant has given sufficient evidence to show that he had spent Rs.148,046.70. 21.1.1994 THErefore, he is entitled to that amount. Since he has received Rs.133,550/-, he has himself incurred loss of Rs.14,496.70. Mr. Shailesh Shah, learned Advocate appearing on behalf of Maruti Udyog Limited stated that even the complainant has stated that the car was fired from rear side of inside and, therefore, even assuming that there is some defect in the front side of the car where the engine is installed, the fire cannot start from the rear side of the car. We are unable to accept this argument for the simple reason that the petrol tank is situated on the rare side of the car and, therefore, any short circuit that might have caused might have ignited the petrol tank which is on the rear side of the car. Considering the intensity of fire we have no alternative except to believe that the tank must have caught fire which must have been seen by the occupants of the house when they awoke at night at 3 a.m. after hearing the shouts from neighbours. Mr. Shailesh Shah then contended that the complainant has already received Rs.133, 550/- and, therefore, the order cannot be passed awarding him more than Rs.14,496.70. Shri R.H. Mehta, learned Counsel appearing on behalf of the Insurance Company has cited the ruling of the Honourable Supreme Court in the case of Union of India v. Sri Sarada Mills reported in AIR 1973 SC 281 which was a case filed by the insured mill which had also received the insurance amount from the Insurance Company and was filed against carrier (Railway) where the plaintiff was entitled for the full amount claimed. It is necessary to reproduce the observation of the Honourable Supreme Court for both reasons as to the liability of the Opposite Party as well as the liability of the complainant to make the payment to the Insurance Company. We shall therefore reproduce the relevant observation of the Honourable Supreme Court. The complainant-company had sent some goods by Railway. The goods have been insured by the Insurance Company and the plaintiffs claimed damages against the Railway Administration even though the mill had received Rs.32,254/- 6 Annas & 9 paise from the Insurance Company and the Mill had also assigned all its rights against the Railway Administration in favour of the Insurance Company as subrogee. Inspite of that the claimant plaintiff had filed a suit for the recovery of amount of damages from the Railway. Relying upon various cases cited before it, the Honourable Supreme Court observed that: "In the present case the Insurance Comany and the mill proceeded on the basis that the Insurance Company was only subrogated to the rights of the assured. The letter of subrogation contains intrinsic evidence that the respondent would give the Insurance Company facilities for enforcing rights. The Insurance Company has chosen to allow the mill to sue. The cause of action of the mill against the Railway Administration did not perish on giving the letter of subrogation."

The Honourable Court has further observed that: "For these reasons, we regret our inability to agree with our learned Brother Mathew that the respondent mill has no cause of action. We agree with the decision of the High Court that the suit should be decreed. The appeal is therefore dismissed with costs."

In short, even if the amount is received by the claimant and inspite of the fact that the letter of subrogation has been passed, his cause of action cannot be said to have been perished and in that view of the matter, the Honourable Supreme Court has confirmed the judgment of the High Court decreeing the suit of the claimant. We are, therefore, unable to accept the argument of Mr. Shailesh Shah that the complainant cannot get full amount. So far the reliefs are concerned, the observation of the Honourable Supreme Court in para 19 of the judgment are important which reads as under: "The respondent mill will give a valid discharge to the Railway Administration in respect of loss and damages. This decree will be a bar to the institution of any suit by the Insurance Company in respect of the subject matter of the suit. The respondent mill is answerable and accountable to the Insurance Company for the moneys recovered in the suit to the extent the Insurance Company paid the respondent mill."

We are, therefore, of the opinion that we are also required to pass same type of order and grant the same type of relief as has been granted by the Honourable Supreme Court. We, therefore, allow the complaint of the complainant and pass the following order. ORDER The Opposite Party No. 1 Maruti Udyog Limited shall pay the complainant the damages of Rs. 148,046.70 with running interest @ 15% after two months from the date of accident till the payment is made and the Opposite Party No 3 Insurance Company will give valid discharge to the Opposite Party No. 1 in respect of the loss and damages. This order will also bar the institution of any suit by the Insurance Company in respect of said subject matter against the Opposite Party No. 1. The complainant will be answerable and accountable to the Insurance Company for the money recovered in the suit to the extent the Insurance Company paid the complainant. The Opposite Party No. 1 shall bear its own cost and cost of the complaint which we quantify at Rs. 500/-. Complaint allowed.