C.C.NO.21 OF 2010

Between:

Mohd Hyder Khan S/o Sri Gulam Hyder Khan
Occ: Business R/o 8-2-293/82/J-III, 504
Road No.86 Jubilee Hills, Hyderabad-033

                                                                Complainant

                A N D

1.   Mercedes-Benz India Pvt.Ltd.,
E-3, MIDC Chakan Phase III
Chakan Industrial Area
Kuruli & Nighoje, Tal:Khed
Pune-501

2.   M/s Adishwar Auto Diagnostics Pvt Ltd.,
Mahavir Motors Dealer for Mercedes-Benz
Passenger Vehicles, 6-3-20/B, Empress Court
Hyderabad, A.P.

Opposite parties

Counsel for the complainant                  M/s M.Papa Reddy

Counsel for the opposite parties             M/s A.P.Venugopal

        QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER

                                                AND

SRI T.ASHOK KUAMR, HON’BLE MEMBER

MONDAY THE NINETEENTH DAY OF NOVEMBER

                                TWO THOUSAND TWELVE

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

                                        ***

1.                     The complaint is filed seeking direction to the opposite parties no.1 and 2 to pay an amount of `30,55,000/- towards reimbursement of loss of vehicle and additional cost that the complainant has to incur for purchase of new vehicle, `50,000/- towards reimbursement of medical expenses, `15 lakhs towards compensation for mental agony and pain due to non-deployment of airbags leading to multiple injuries and permanent disability and `10 lakhs towards general and special damages for the injuries suffered by the complainant and on account of loss of his business activity.

2.             The averments of the complaint are that the complainant purchased Mercedes Benz Car manufactured by the first opposite party through its dealer, the second opposite party on 17.6.2008 for consideration of `53 lakh and since the first day of its purchase, the vehicle has not performed to the satisfaction of the complainant with its wipers getting stuck up on windshield and at night during rain the vision was getting impaired which was brought to the notice of the second opposite party who stated that the windshield was to be replaced. 

3.             The official of the second opposite party had sent technical personnel of the first opposite party from Pune to replace the steering wheel assembling of the vehicle on 28.8.2008.  The complainant was not satisfied with the performance of the vehicle after replacement of steering wheel column and on 9.1.2010 the vehicle met with an accident while the complainant was travelling in it on Begumpet Road when oncoming vehicle suddenly intruded whereon the complainant had swerved the car and it hit the right side embankment as a result of which its right side fender was mutilated along with the body and engine parts on the right side of the vehicle.  As there was no deployment of front air bag and passenger front air bag, the car was smashed totally which has become of no use to be repaired and the complainant suffered major injuries on his head, face upper and lower jaws lips, cheeks and neck.  The complainant had undergone treatment at KIMS Secunderabad and he had undergone orthodental surgery for fixation of front three lower teeth.  The complainant is advised to continue to take pain killers and undergo treatment for a period six months.

4.             The complainant intimated the accident to the opposite parties and they are unable to explain for non-deployment of driver front airbag and front passenger air bag.  The second opposite party visited the accident site and towed the vehicle to their workshop from the police station.  The complainant got issued notice through his advocate on 20.1.2010 bringing to the notice of the opposite party that the vehicle has manufacturing defect that led to its damage in the accident.  The complainant could recover a sum of `10,50,000/- and sold the vehicle in scrap for `16,50,000/-.  The complainant had recovered a sum of `27 lakh by the sale of the damaged vhiecle including the insurance coverage and he purchased another Benz car for an amount of `57,55,804/-.  The complainant had incurred an amount of `30,50,000/- which he is entitled to recover from the opposite parties for the manufacturing defect in the car and on account of deficiency in service on the part of the opposite party. 

5.             The first opposite party filed written version which was adopted by the second opposite party.

6.             The first opposite party resisted the claim on the premise that it is the manufacturer of world class with a reputation for safety, comfort, quality and engineering excellence.  It is contended that this commission has no jurisdiction to adjudicate the claim for compensation arising out of motor vehicle.  The complainant has to approach motor accident claims tribunal in relation to the claim and as the MV Act is a special Act and as such this Commission has no jurisdiction to try or entertain the claim.

7.             It is contended that the complainant has foisted a speculative and vexatious claim and abused the jurisdiction of this Commission for unjustified gain.  The complainant has not approached this Commission with clean hands.  He did not permit the inspection of the vehicle by technical experts of the manufacturer and directed the opposite parties to hand over the vehicle to the insurance company for settlement of his claim.  The inspection of the vehicle by the experts deputed by the first opposite party could have  revealed the necessity of deployment of the airbags.  The complainant had not given consent for inspection of the vehicle by the experts of the opposite party no.1.

8.             The second opposite party informed the complainant that inspection of the vehicle cannot be made if the vehicle is moved out of the workshop.  The inspection of the vehicle could have revealed whether the complainant wearing seat belt and whether the impact force was adequate for deployment of airbags.  The insurance company has settled the claim on total loss basis.  Together with salvage value of the vehicle, the complainant has received `27 lakh.  The complainant got issued notice claiming `72 lakh towards compensation and brought down the claim to `56 lakh.  The complainant had foisted a speculative claim without incurring any expenditure towards court fees. 

9.             The vehicle was sold subject to terms of warranty and the liability of the first opposite party is limited to terms of warranty to repair the vehicle or to replace the defective part in case any part of the vehicle fails due to manufacturing defect during the first two years of purchase of the vehicle.  The windshield wiper is a wear and tear item and the complainant is required to replace it on regular basis to ensure the optimized performance of the wiper.  The wiper was replaced and it had nothing to do with the occurrence of the accident.

10.            The complainant has not filed any document to show that the steering wheel was not satisfactorily repaired.  The vehicle service report would show that it had travelled at least 3000 kms after replacement of steering system on 28.8.2009 without any complaint or issue raised by the complainant.  The accident occurred while the complainant was overtaking a lorry and not due any intrusion by an oncoming vehicle.  The complainant reported the same matter to the insurance company.  The FIR and report of the police before XI Addl.Chief Metropolitan Magistrate Secunderabad establish that the complainant was driving the car at high speed and in negligent manner which resulted in the accident.

11.            The impact damage to the front right fender is not severe as the damage was focused on soft parts of the vehicle which are designed to crumple so as to absorb impact energy, thereby reducing the impact energy being transferred to the passenger compartment and reducing the risk of occupants’ injuries.  The complainant had received outpatient treatment from KIMS and dental surgery a day prior to the date of accident i.e., 8.1.010 at Sai Dental Surgery.  The injury was caused to the complainant because of his negligence in wearing seat belt.  The vehicle is designed to deform upon impact thereby reducing the impact force which would otherwise be transferred to the occupants.  The driver had received only superficial injuries because of the vehicle safety design.  The complainant regularly used the car and had not complained of any defect in the airbag prior to the date of accident. 

12.            The vehicle is equipped with a self-diagnosis system whereby the vehicle supplemental restraint system which includes the airbags, will be checked and diagnosed every time the vehicle turned on and in the event a defect is found the SRS warning lamp will come on to warn the driver.  The complainant has not made any complaint at any time.  There was no manufacturing defect in the vehicle and the liability of the first opposite party is limited to the terms of warranty.  The complainant has claimed a highly excessive amount and this Commission has no jurisdiction to adjudicate the matter.  Hence, prayed for dismissal of the complaint. 

13.            In support of his claim,  the complainant has filed his affidavit and the documents,  Exs.A1 to A20.  On behalf of the opposite parties, the Service Manager of the second opposite party K.Srikanth has filed his affidavit and the documents Exs.B1 to B5. 

14.            The counsel for the opposite party no.1 has filed written arguments.

15.            The point for consideration are:

1)   Whether the complaint is maintainable?

2)   Whether the opposite parties rendered deficient service to the complainants?

3)   To what relief?

16.            POINT NO.1:              The opposite parties raised objection as to the maintainability of the complaint on the premise that this Commission has no jurisdiction to adjudicate the matter arising out of a motor vehicle accident.  The learned counsel for the first opposite party has relied upon the decision of the Hon’ble Supreme Court in “Chairman Thiruvalluvar Transport Corporation Vs Consumer Protection Council” ( 1995) II SCC 497 to contend that the claim arising out of injuries sustained in a motor vehicle accident is amenable only to the jurisdiction of Motor Vehicle Accident Claims Tribunal.  There is no quarrel with the position of law, Section 168 and 175 of M.V.Act which provide for procedure in adjudication of the disputes in respect of injuries or death occurred as a result of use of motor vehicle in public place.  Section 168 and 175 of M.V.Act

Section 168               On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:

Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X.

(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.

(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.

Section 175        Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court.

17.            In Thiruvallur Transport Corporation (supra), the Supreme Court considered the claim of a passenger travelling in a private motor vehicle which met with an accident as a result of the negligence of its driver and the passenger sustained injuries and on his behalf, the consumer council has filed complaint before the District Consumer Forum and the matter reached Supreme Court.  The Supreme Court held that the compensation claim arising out of the person receiving in a motor vehicle accident can only be adjudicated by the Motor Vehicle Accident Claims Tribunal. 

18.            The Supreme Court held that the accident that occurred has no nexus with the service rendered by the service provider.  It was observed that:

“Complaint according to Section 2(c) means any application in writing in relation to an unfair trade practice or as a restrictive trade practice adopted by any trader or in relation to goods bought by him or agreed to be bought by him. Both, these Clauses have no application whatsoever. The third clause relates to the services hired or availed of or agreed to be hired or availed of by a consumer. Therefore, at best it can be said the complaint in question related to the service hired or availed of by the deceased. The complaint in the instant case cannot be said to be in relation to any service hired or availed of by the consumer because the injury sustained by the consumer had nothing to do with the service provided or availed of by him but the fatal injury was the direct result of the accident on account of which he was thrown out of his seat and dashed against an iron handle of the seat in front of him. We have, therefore, no manner of doubt that this case squarely fell within the ambit of Section 165 of the 1988 Act and the Claims Tribunal constituted there under for the area in question had jurisdiction to entertain the same. As pointed out earlier, the 1988 Act and, in particular, the provisions in Chapter XII thereof creates a Forum before which the claim can be laid if it arises out of an accident caused by the use of a motor vehicle. That being a special law would prevail over the relevant general law such as the 1986 Act but in the instant case even that question does not arise for the simple reason that the dispute in question did not attract the jurisdiction of the National Commission, whatsoever, and the National Commission has not shown how it had jurisdiction…….”

19.            The ratio laid in the decision is not applicable to the facts of the case on hand for, the complainant is not a third party to the opposite parties as he purchased the vehicle from the second opposite party who is the authorised dealer of the first opposite party.  The complainant has filed the complaint claiming deficiency in service on the part of the opposite parties. 

20.            In “National Insurance Co. Ltd vs Laxmi Narain Dhut” reported in [2007] INSC 239, the Supreme Court held that where there is no jurisdiction and own property damage claim is amenable to the jurisdiction of Consumer Forum and the claim arising out of a motor vehicle accident in respect of third party is to be filed before Motor Vehicle Accident Claim Tribunal.  The Apex Court held:

Where the claim relates to own damage claims, it cannot be adjudicated by the insurance company. But it has to be decided by an other forum i.e. forum created under the Consumer Protection Act, 1985 (in short the 'CP Act'). Before the Tribunal, there were essentially three parties i.e. the insurer, insured and the claimants. On the contrary, before the consumer forums there were two parties i.e. owner of the vehicle and the insurer. The claimant does not come in to the picture. Therefore, these are cases where there is no third party involved.

21.            The complainant has filed the complaint stating that his vehicle suffered damage and he had sustained injuries on account of manufacturing defect of the vehicle as also in view of the deficiency in service rendered by the second opposite party in not deploying airbags at the time steering column of the vehicle was replaced.  Thus, in the circumstances and in the light of the ratio laid down in Laxmi Narain Dhut, this Commission can entertain the complaint.  The point is answered against the opposite parties.

22.            POINTS NO.2 & 3:               The complainant has claimed that the vehicle sold to him suffered  manufacturing defect and the second opposite party failed to deploy airbags at the time of replacement of steering column of the vehicle.  At the time of hearing of the complaint, the complainant has filed memo on 9.11.2012 stating that he is not pressing the claim for `35,55,000/- for reimbursement of loss of the vehicle mentioned in para 13-A of the complaint.  Thus the claim on account of manufacturing defect need not be considered.

23.            The complainant has stated that the opposite party no.2 did not deploy airbags at the time of replacement of steering column of the vehicle.  The learned counsel for the opposite party no.1 has pointed out that the vehicle is equipped with a self-diagnosis system whereby the vehicle supplemental restraint system which includes the airbags, will be checked and diagnosed every time the vehicle turned on and in the event a defect is found the SRS warning lamp will come on to warn the driver. 

24.            The first opposite party in reply to the interrogatories delivered by the complainant has stated in regard to replacement steering column and deployment of airbags as under:

There was no replacement of steering column carried out on the vehicle.  However, to access the steering wheel nut, the steering wheel air bag has to be removed for this purpose temporarily.  Hence, the existing steering wheel air bag was removed and refitted/reinstalled as was fitted originally.  There was no need to remove air bag control module.  As explained in answer 1 above, if there is/was any fault in the removal and re-connection of the driver’s air bag, there would have been air bag warning message in the instrument cluster.  This is not the case here and the complainant has never complained of seeing any such warning message thereafter.  To substantiate this, we enclose a copy of Star Diagnosis Test Report dated 14.08.2009 ( as Annexure A*) which shows that all Control Units and airbags functioned as designed after removal and reinstallation (* the Star Diagnostic Test Report is automatically generated from the Star Diagnostic Equipment after connecting it to the car/vehicle, which gives the details as to whether the individual component of the car are/were functioning as designed or not.  This reports helps technical experts/technicians to know the fault if any in the car so as to take necessary corrective action if required).

25.            The case of the complainant is that on account of non-deployment of airbags at the time of replacement of  steering column by the second opposite party,  he had sustained injuries.  As aforesaid, after the vehicle was sent for repairs, it had run for about 3000 kms without the complainant making any complaint.  It is pertinent to note that the complainant has not lodged any complaint in regard to any of the defect or short of standard performance of the vehicle any time till the accident occurred. 

26.            The manner in which the accident occurred is incorrectly described by the complainant that to avoid collusion of an intruding vehicle he had swerved the car to right side as a result of which the car collided against the embankment.  As against what has been said by the complainant, he reported the matter to the insurance company for claiming the amount under insurance policy and also in his complaint to the police he had stated that while overtaking an on-going lorry, he suddenly noticed the road divider and to avoid hitting against the road divider he had steered the vehicle to right side as a result the vehicle collided against the side wall on the right side of the road.  The FIR clearly indicates that the accident occurred due to rash and negligent driving of the car by the complainant.  Thus the complainant has not stated the manner in which the accident occurred. 

27.            The contention of the complainant that the first opposite party has depicted an incorrect picture of consent for inspection of the vehicle pales into insignificance in the light of short span of time within which the complainant had got issued notice dated 20.1.2010 and instructed the second opposite party to handover the vehicle to the insurance company.  The complainant and not the insurance company sold the vehicle to a third party.  The complainant ought to have waited for inspection of the vehicle by the technical personnel of the first opposite party company before he sold the vehicle to third party.  The complainant ought to have informed the insurance company that he was proceeding to sell the vehicle irrespective of inspection made by the technicians of first opposite party company.  The complainant ought to have sold the vehicle after giving opportunity to the first opposite party or the second opposite party to get inspected the vehicle by their technicians. 

28.            The insurance company said to have settled the claim of the complainant on total loss basis.  The insurance company would not have settled the claim without there being any inspection of the vehicle by the surveyor deputed by it.  The complainant has not placed on record the report submitted by the surveyor to the insurance company.  The surveyor’s report would throw light on the aspect relating to airbags and the impact of the accident on soft parts of the vehicle which are designed to crumple so as to absorb impact energy.   

29.            Insofar as the injuries sustained by the complainant in the accident are concerned, the complainant was treated in Sai Dental Surgery a day prior to the date of the accident.  The complainant has not proved that he wore the seat belt at the time of the accident.  The Service Manager of the second opposite party who is an automobile engineer has stated that the vehicle has no manufacturing defect and the complainant at the time of the accident did not wear the seat belt.  He has stated that :

In case a passenger wears seat belt, electronic triggering device (ETR) would have triggered at the time of accident resulting in tightening of the seatbelt around the body of the passenger which would have prevented collision of the passenger and in particular passenger’s head against the dash board.  In such a case seat belt does not retract subsequently.  As in this case, seat belt was fully in retracted condition, it was quite clear that seat belt was not worn by the driver at the time of accident.  In the event, the occupant in the ar was wearing seatbelt, due to the size of the occupant’s body, it would be apparent should the occupant wore the seat belt properly.  Conversely, if the occupant did not wear seatbelt, the seat belt will be retracted and be in a tense position.  When the car was towed into the workshop shortly after the accident, the seat belts were in fully retracted position.  Accordingly, I can say that the complainant  and the passenger did not wear seatbelt during the accident.  This could have been verified by German Engineer/Specialist had the complainant agreed for inspection of the vehicle. 

30.                  As seen from the statement of the Service Manager of the second opposite party, the complainant cannot blame the opposite parties for the consequences of his not wearing seat belt.  Even according to the version of the complainant the accident was not occurred due to non-deployment of airbags in the vehicle.  It is pertinent to note the statement of the first opposite party in regard to the impact damage to the front right fender is not severe as the damage was focused on soft parts of the vehicle which are designed to crumple so as to absorb impact energy, thereby reducing the impact energy being transferred to the passenger compartment and reducing the risk of occupants’ injuries. 

40.           The complainant has not established that the vehicle suffered with any manufacturing defect.  The complainant failed to prove that he sustained injuries in the accident as a result of non-deployment of airbags by the second opposite party.  The complainant ought to have waited for inspection of the vehicle by the technical personnel of the first opposite party before handing over the vehicle to the insurance company and thereafter selling it, in his words, in scrap.  The complainant has been the cause of the accident by his sheer negligent driving of the vehicle and projected the accident in a different manner than in the actual fashion that occurred.   In any view of the matter, the opposite parties cannot be held deficient in rendering service to the complainant.

        In the result the complaint is dismissed.  There shall be no order as to costs.

                                                                        MEMBER

                                                                        MEMBER

                                                                    Dt.19.11.2012

KMK*

                                APPENDIX OF EVIDENCE

                                 WITNESSES EXAMINED

For complainant                                                  For opposite parties

        NIL                                                                   NIL

                                        EXHIBITS MARKED

For complainant

Ex. A1                   Invoice, date 17.06.2008

Ex. A2         Tax receipt, date 17.06.2008

Ex. A3         Invoice summary, date 23.07.2009

Ex. A4         Material requisition, date 23.07.2009

Ex. A5         Pre order, date 10.08.2009

Ex. A6                   Tax invoice, date 28.08.2009

Ex. A7                   Photographs

Ex. A8         Official record of KIMS hospital

Ex.A9          Report issued by Sai Dental Surgery Clinic, date 08.01.2010.

Ex.A10        Certificate issued by Sai Dental Surgery Clinic

Ex.A11        Delivery note

Ex.A12        Sheet containing three Xerox copies of cheques.

Ex.A13        Office copy of legal notice, date 20.01.2010

Ex.A14        Postal acknowledgement

Ex.A15        Copy of notice bearing endorsement of
Mr. Sumit    dated 20.01.2010

Ex.A16        Original reply notice, date 29.01.2010  

Ex.A17        copy of case receipt issued by RTA Department

Ex.A18        copy of tax invoice date 05.02.2010

Ex.A19        Xerox copy of forum

Ex.A20        Xerox copy of forum

For opposite parties

Ex.B1          Affidavit in Evidence of Mr. K. Srikanth Service Manager,
on behalf of Opposite parties.

Ex.B2          Copy of letter dated 09.02.2010 addressed
to the complainant by O.P.No.2

Ex.B3          Copy of pre-delivery inspection report conducted by
O.P.No.2 with regard to the complainant’s vehicle in question.

Ex.B4          Relevant advisory from owner’s manual and
technical literature explaining why passengers
should wear seatbelt for their own safety.

Ex.B5          a copy of the first information report (FIR) of the police

                   subsequent to the accident of said  vehicle.

                                                                                MEMBER

                                                                                MEMBER