JUSTICE V.K. JAIN, PRESIDING MEMBER

1.       Complainant No.1, Dr. Richard Raja Singh, and his son,                R. Backiaraj Vinuben, purchased a Ford Mondeo car on 19-03-2004 for a consideration of Rs.17,41,642/-. On 31-05-2004 the first, second and third complainants were travelling to Thirunelvelli, along with their family members. Late Manuben Joshua Raj and Backiaraj Vinuben, sons of the first and second complainants, Mrs. Jacinth wife of Manuben Joshua Raj and Mrs. Santra wife of Backiaraj Vinuben were travelling in the Ford Mondeo car and the said car was being driving by deceased                 R. Manuben Joshua Raj, whereas the first, second and the third complainants were in another car. At about 5:45 P.M., when their vehicles reached National Highway near Irattai Malai, a Tata 407 vehicle rammed sideways on the left side of the Ford Mondeo car. All the four passengers travelling in the car died on the spot.

          The case of the complainants is that the air bags, which were supposed to deploy immediately on the collision, did not deploy at all. The passengers were taken to a nearby hospital, but were declared brought dead. The first and second complainants are the parents of Manuben Joshua Raj and Backiaraj Vinuben, the third complainant is the son of Manuben Joshua Raj and Mrs. Jacinth whereas the 4^th and 5^th complainants are the mothers of Mrs. Jacinth and Mrs. Santra. The complainants are, thus, alleging that a faulty product was sold to them by the opposite parties, since while selling the vehicle they claimed that it had world class safety features, including the state of the art air bag system, which protects the passengers in the event of an accident, whereas in fact neither the front air bags nor the side air bags got deployed, despite heavy impact by Tata 407. It is further alleged that though the opposite parties claimed that their cars are subject to stringent tests of international standards, the said representation was false as would be evident from the fact that the air bag deployment system of the vehicle was defective and faulty. This is also the case of the complainant that a manufacturer must anticipate the environment in which the product would be used and design it against reasonably foreseeable risks attending the product and the defective design which fails to prevent injury, when preventable, renders the manufacturer liable, if the risk is reasonably foreseeable. Yet another allegation of the complainants is that the opposite parties have indulged in unfair trade practice, by projecting the safety features of their vehicle to be amongst the best in the market, whereas in fact they were not so and had miserably failed to protect the life of the passengers. According to the complainants the opposite parties made tall claims with respect to the safety features of the vehicle, only with a view to promote their sale and thereby indulge into deceptive trade practices.

2.       The complainants are seeking a sum of Rs.17,41,632/- being the price of the car paid by them, Rs.2,00,00,000/- towards compensation for loss, injury and mental agony and Rs.8,00,00,000/- towards punitive damages for the defective and faulty service by the opposite parties.

3.       In its reply opposite party No.1-Ford Motors Co. Ltd. inter alia claimed that it was an American company having no office at the address given in the cause list and it had neither manufactured nor sold the subject car and, therefore, the complaint is bad for its joinder. It was further stated that Ford cars being sold in India are manufactured in Belgium and, therefore, this Commission has no territorial jurisdiction to try the complaint. The opposite party No.1 also took a preliminary objection that the complaint is beyond the limitation period prescribed in the Consumer Protection Act, 1986 and, therefore, liable to be dismissed. On merits, it is alleged that during inspection by opposite party No.2 it was found that the said air bags did deploy but the left B pillar of the car collapsed due to massive impact of Tata vehicle, as a result of which the said pillar entered the passenger compartment, thereby obstructing the area for the air bag to inflate completely. It is further alleged in the reply that it is Ford India Pvt. Ltd. which is the authorised importer and seller of the Ford cars in India. It is also stated that since the said air bags are installed on the side of the seat backs of the front seats, the claim with respect to the occupants sitting on the back seat is unjustified. Yet another plea taken by opposite party No.1 is that the claim is highly exaggerated since only Rs.60,00,000/- have been claimed before the MACT. It is also stated in the reply that the way accident took place there cannot be any safety equipment in any premier car, which could have protected the occupants of the car. It is also stated that air bags can only cushion the impact but cannot act as a protective device, when the impact of the accident is of a very high magnitude.

4.       In its reply opposite party No.2-Chennai Motors endorsed the plea taken in the reply of the opposite party No.1-Ford Motor Co. Ltd. and stated that during comprehensive inspection of the car carried out by Ford India Pvt. Ltd. it was found that the side air bags did deploy, contrary to the claim of the complainants. It is further stated that due to massive impact of Tata 407, the B pillar collapsed and entered the front seat passenger compartment, thereby obstructing the area required by the air bag to inflate completely. It is also stated that air bags inflate between the door panel and the occupants of the front seat passenger compartment, to prevent forward body movements of the occupants in the event the vehicle meets with a frontal and/or lateral collusion and do not prevent injuries to the occupants. According to the opposite party No.2 the Ford cars being sold in India are manufactured by Ford company in Belgium.

5.       The owner’s manual in respect of For Mondeo car, which opposite party No.2 provided to the buyer at the time of purchase of the car, to the extent it pertains to air bags reads as under:

          “Air Bag

Air bags, in combination with a seat belt, can help reduce the risk of severe injuries in the event of a significant collision.

The system

The air bag system comprises the following:

• Dual-stage inflatable nylon bags (air bags) with gas generators
• Side air bags
• Seat belt pre-tensioners
• A variety of occupant an crash sensors
• An air bag deactivation light in the center console
• A warning light in the instrument panel
• An electronic control and diagnostic unit

The front air bags activate during major collisions which are either frontal or up to 30 degrees from the left or the right. The air bags inflate within a few thousandths of a second. They will deflate on contact with the front occupants thus cushioning forward body movement.

During minor collisions as well as overturns and rear or side collisions, the air bag system will not be activated.

Side air bags

Moulded writing and a label on the door pillar indicate that side air bags are fitted.

The side air bags are fitted on the side of the seat backs of the front seats. In case of a severe lateral collision, the air bag on the side affected by the collision will be inflated only if the seat is occupied. The air bag will inflate between the door panel and occupant. Once the occupant’s body contacts the air bag, the propellant escapes, thereby cushioning the impact.

The side air bags are not activated upon minor lateral collisions nor upon front or rear impacts.”

6.       It would, thus, be seen that the object of providing air bags in a car is to reduce the risk of injuries to the passengers, in the event of a major collision involving either the front portion or the side portion of the car. The air bag is expected to inflate within a few thousandth of a second and then deflate on coming into contact with the occupants. Once the air bag comes into contact with the occupants of the seat of the car, the propellant escapes thereby reducing the impact of the collision. It is also not in dispute that the cars laden with safety features as air bags carry a higher price as compared to cars without such features, meaning thereby that the consumer is paying additional price for availing such safety features in the car.

7.       The first question which arises for consideration in this case is as to whether the said air bag got deployed or not when Tata vehicle hit the side of the Ford Mondeo Car. The case of the complainants is that the air bag did not deploy at all whereas the case of the opposite parties is that the air bag did deploy though not completely. No technical evidence has been produced by the complainant to prove that the said air bags in the car did not deploy at all when the collision took place. No technical expert such as an automobile engineer was engaged by the complainants to inspect the car soon after the accident and examine whether the air bag had actually deployed or not. In fact, no technical expert was consulted by the complainants at any point of time before filing the complaint. This happened despite the fact that vide their reply dated 29-03-2005, Ford India Pvt. Ltd. had clearly stated that the front passenger side air bag (left side) was deployed though it could not be completely inflated as the B pillar jammed with the front passenger seat, within micro second, inhibiting the initiation of the said air bag.

          It was pointed out by the learned counsel for the complainants that in the first estimate for repair of the car given on 27-10-2004, there was no mention of the air bag module meaning thereby that the said module did not require replacement. Further contention in this regard was that had the air bags actually got deployed, the said module would have been severely damaged and would have required replacement. Though the subsequent estimate dated 20-12-2004, included the cost of replacement of the said module, this according to the complainants was an afterthought. The case of the opposite party No.2 on the other hand is that the first estimate being only a provisional estimate, the second estimate being only a follow up of the first estimate. It is claimed that even in the first estimate, there was reference to air bags at serial Nos.6,7 and 8 where they were referred as air balloons front and air balloons side. Be that as it may, considering that no technical evidence has been led by the complainants to prove that the air bags had not deployed at all and the photographs annexed to the reply sent by the opposite parties to the legal notice of the complainants, I am not inclined to accept the contention that the air bags had not deployed at all.

8.       During pendency of the complaint an application was filed by the complainant on 16-12-2008 seeking appointment of an expert commission to inspect the vehicle in question and submit report on the safety mechanism available in it and also whether the said mechanism had functioned properly at the time of the accident or not. The application was opposed by the opposite parties inter alia on the ground that the vehicle was lying dormant since the date of the accident on    31-05-2005 having suffered a total loss and no repair work had been carried out. The stand taken by them was that an inspection at that stage could not indicate the correct reasoning for the alleged manufacturing defects. The application was rejected by this Commission vide order dated 01-12-2009 and the said order having not been challenged, became final. In the absence of a technical evidence from the complainants and considering the stand taken by the opposite parties based on the report of their own technical engineers, the Commission must necessarily proceed on the assumption that the said air bag did deploy though only partially and its full deployment was prevented on account of B pillar on the left side of the vehicle jamming with the front passenger seat and thereby inhibiting the inflation of the air bag. In fact, along with their reply dated 29-03-2005, Ford India Pvt. Ltd. also sent photographs which according to them show the damaged B pillar on the left hand side of the vehicle as well as the partially deployed air bag.

9.       The next question which arises for consideration in this case is as to whether the design of the Ford Mondeo Car in question was faulty on account of the said air bag having been installed at a place where in the event of the side collision they could not have deployed completely. No doubt, any car manufacturer can foresee that in the event of a side collision, the B pillar of the side of the vehicle would be seriously impacted and, therefore, is likely to shift from its original position in the car. If the shifting of the position of the B pillar on account of impact of the accident prevents full deployment of the said air bag, the car manufacturer could also foresee that there was a likelihood of the air bag either not deploying at all or not fully deploying, in the event the car meets with a major accident, involving its side including the B pillar between the front door and the rear door of the vehicle. However, there is no technical evidence in the form of the opinion of an automobile designer or automobile engineer to show that the side air bag could have been installed at a place better than the place where it was installed in car in question, where it would have deployed fully even in the case of a major accident involving the side of the car and given better protection to the passengers travelling in the car. The complainants have not led evidence to prove as to where the said air bags are installed in other cars which carry such safety mechanisms. Therefore, the Commission is not in a position to say that the side air bags were installed by the manufacturer at a wrong place or that they could have been installed at a better place in the car where they would have afforded higher protection and cushioning to the passengers. Undisputedly, the onus was on the complainants to prove the alleged fault in the designing of the car.  No such evidence having been led by them, it cannot be said that the placement of the air bags in the car was faulty.

10.     However, I find that in the owner’s manual, the manufacturer and/or importer/seller of the car did not disclose it to the buyer that since the said air bags were fitted on the side of the seat backs of the front seats and were supposed to inflate between the door panel and the occupants, they may not deploy fully in the event the B pillar of the car is impacted on account of collision and thereby shifts from its original position in the car. As observed earlier any reasonable and prudent automobile designer/engineer could foresee that considering the place where the side air bags were installed they would not deploy fully in case the B pillar is impacted due to collision and shifts or bends from its original position in the car. B pillar having been provided between rear and front door of the car it is most likely to be impacted in a large number of accidents involving side portion of the car and, therefore, the situation which according to the opposite parties actually arose in this case could easily have been foreseen by them. Despite that, there was no indication in the owner’s manual that in certain situations, involving the damage to the side of the car, the air bags may not inflate or at least may not inflate completely. In my opinion, it was obligatory for the manufacturers and sellers of the cars to provide the aforesaid information to the purchaser of the car when one of the features highlighted by them, while marketing their product, was the availability of the front air bags and side air bags and the vehicles loaded with such safety features also carry a higher price tag in the market. In fact, no one reading the aforesaid owner’s manual will suspect that in the event of an impact involving the side of the car, the air bag would not inflate and would not give him the expected cushioning against the impact. The impression one gets from a reading of the owner’s manual is that the air bag will inflate between the door and the occupants whenever there is a severe accident involving the side of the vehicle and such deployment of the air bag would cushion the impact of the collision. This statement obviously was not fully correct.

11.     Section 2(r) of the Consumer Protection Act, 1986 to the extent it is relevant provides that unfair trade practice means a trade practice which for the purpose of promoting the sale, use or supply of any goods adopts any unfair method or unfair or deceptive practice including that the goods are of a particular standard and quality. In my opinion, the manufacturer and the seller of the car in question adopted an unfair and deceptive practice while selling their car by not disclosing to the prospective buyer that in certain events the side air bags provided in the car may not inflate or may not inflate completely, though they could have reasonably foreseen such a possibility while designing the vehicle.

12.     There is no evidence to prove that had the air bags deployed completely the lives of the passengers travelling in the car could have been saved. The case of the opposite parties is that the impact of the accident was so severe that no safety feature could have saved the lives of the occupants of the car. It was clearly stated by them in para 5 of their reply dated 29-03-2005 that there cannot be any safety equipment in any premier car which could have protected the occupants, considering the way the accident had taken place. The onus was on the complainants to prove that had the air bags deployed fully they would have given so much cushion to the occupants of the car that their lives would have been saved. No such evidence having been produced by them it cannot be said that the non-deployment or partial deployment of the air bags had contributed to their death.

13.     According to the opposite party No.1 namely, Ford Motor Co. Ltd., it is not the manufacturer of the car in question. This is also the case of the opposite parties that the Ford Mondeo cars are imported and distributed in India by Ford India Pvt. Ltd. which is a company different from opposite party No.1. However, neither the opposite party No.1 nor the opposite party No.2 have disclosed in their reply as to which particular company in Ford group had manufactured the car in question. They have claimed that such cars are manufactured in Belgium but withheld the information as to which group company had manufactured the said car in Belgium. It would also be seen that the complainant sent a legal notice to opposite party No.1-Ford Motor Co. Ltd. but the said notice was replied by Ford India Pvt. Ltd., which clearly indicates that Ford Motor Co. Ltd. and Ford India Pvt. Ltd. are inter connected companies forming part of the same group. Even the evidence by way affidavit on behalf of the opposite party No.1 has been filed by an employee of Ford India Pvt. Ltd.. Therefore, it would hardly make any difference, whether Ford India Pvt. Ltd. or Ford Motor Co. Ltd. is arrayed as an opposite party. Since admittedly the cars in question were imported and distributed in India by Ford India Pvt. Ltd., an appropriate order can be passed against the said company considering that not only the reply but also the evidence in this complaint has been led by the said company. As far as opposite party No.2 is concerned they being seller of the car are equally responsible for the statement contained in owner’s manual and the information concealed from the purchaser of the car by not disclosing to them that in certain eventualities the side air bags of the car may not deploy or at least may not deploy fully.

14.     The opposite parties have also taken a plea that the complaint is barred by limitation. Their case is that the accident having taken place on 31-05-2004 and the complaint having been filed on 04-12-2006 was filed more than two years after accrual of the cause of action and, therefore, is liable to be dismissed on this ground alone. Section 24A of the Consumer Protection Act, 1986 which prescribes the period of limitation for admitting a complaint, reads as under;

          “24A. Limitation period - (l) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2)     Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (l), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”

15.     Para 29 of the complaint which deals with the cause of action to file the present complaint reads as under:

“29.   The complainants are filing this present petition under Section 14(d) of the Consumer Protection Act, 1986. The complainants submit that the cause of action for the present complaint arose when the representatives of the first opposite party approached the first complainant and his son, in the month of May 2004 making several false representations about the car; and on 19-03-2004 when the car TN 09 H 7400 was delivered by the opposite parties; and on 31-05-2004 when the complainant’s family was traveling to Thirunelvelli; and on 31-05-2004 at 17:45 hrs when the car met with an accident at Irattai Malai, National Highway resulting in death of inmates; and on 17-11-2004 when the complainant sent a legal notice to the opposite parties; and on 29-03-2005 when the opposite party replied to the legal notice sent by the complainant; and on various dates thereafter when the first complainant has been called upon to various dates till date when the car is still lying in the service station of the second opposite party; and is a continuing cause of action as the complainants suffer mental agony at the loss of their family members.”

         
          It would, thus, be seen that according to the complainants the cause of action arose (i) when the car was purchased, (ii) when the accident involving the said car took place, (iii) when the complainants sent legal notice to the opposite parties and (iv) when the opposite parties replied to the said legal notice. They also claim that the aforesaid cause of action is a continuing cause of action since the complainants continue to suffer mental agony at the loss of their family members. The case of the complainants is that the safety features provided in the car did not work since the air bags did not get deployed despite impact of the collision. Therefore, in my view, the cause of action for filing this complaint arose when the complainants came to know for the first time that the air bags had allegedly not deployed despite impact from the Tata vehicle. Neither serving of the notice upon the opposite parties nor their response to the said notice gave any fresh cause of action to the complainants to file this complaint. The cause of action, which accrued to the complainants before this Commission cannot be said to be a continuing cause of action and once they had come to know that the air bags in the car had not deployed, they were required to approach this Commission within two years of acquiring the said knowledge.

16.     In their legal notice dated 17-11-2004, the complainants inter alia alleged as under:

          “It is solely because of the total failure on the part of the said car Ford Mondeo and its manufacturing defects coupled with the safety gadgets not getting activated as per the specifications mentioned by the manufacturers and also due to the total failure and non-functioning of the systems of the car and in view of the equipments not acting according to the specifications.”

          Therefore, it can hardly be disputed that by 17-11-2004, when they issued the aforesaid notice the complainants had come to know that the air bags installed in the car had allegedly not get deployed despite impact from the Tata vehicle. If the prescribed period of limitation is computed from 17-11-2004, having been filed on 04-12-2006 the complaint is clearly barred by limitation.

17.   In Haryana Urban Development Authority Vs. B.K. Sood, IV (2005) CPJ1 (SC), the Hon’ble Supreme Court, referring to the provisions of Section 24-A of the Consumer Protection Act, 1986, inter-alia observed as under:

        “11.  The Section debars any Fora set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen”.

          In State Bank of India Vs. B.S. Agricultural Industries II (2009) CPJ 29 (SC), the Hon’ble Supreme Court, considering the provisions of Section 24-A of the Consumer Protection Act, 1986, inter-alia observed and held as under:

        “8.    It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action.  The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown.  The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to be Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder.  As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing.  In other words, it is the duty of Consumer Forum to take notice of Section 24A and give effect to it.  If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside”.

In V.N. Shrikhande (Dr.) Vs. Anita Sena Fernandes IV (2010) CPJ 27 (SC), the Hon’ble Supreme Court reiterated that Section 24A (1) contains a negative legislative mandate against admission of a complaint which has been filed after two years from the date of accrual of cause of action.  It was further observed that the Consumer Forums do not have the jurisdiction to entertain a complaint if the same is not filed within two years from the date on which the cause of action has arisen.  The Apex Court held that if the complaint is per se barred by time and the complainant does not seek condonation of delay under sub-Section 24A(2), the consumer forums will have no option but to dismiss the same.”

          The provisions of Section 24A of the Act being mandatory and rather peremptory in nature, this Commission has no jurisdiction to entertain a complaint after expiry of the prescribed period of limitation, unless the complainant files an appropriate application under Sub-Section (2) of the said Section and satisfies it that he/she had sufficient cause for not filing the complaint within the prescribed period of two years from the date on which the cause of action had arisen. However, despite the opposite parties having taken a specific preliminary objection that the complaint was barred by limitation, the complainants did not choose to file an application under Sub-Section (2) of Section 24A seeking condonation of delay in filing the complaint. They rather stated, albeit wrongly, in para 5 of the rejoinder that the complaint has been filed within two years of the accident. As noted earlier the accident in question took place on 31-05-2004. Therefore, it was not correct to say that the complaint has been filed within two years of the accident.

18.     For the reasons stated hereinabove, the complaint is dismissed being barred by limitation. It is, however, made clear that the dismissal of the complaint shall not come in the way of the complainants availing such other remedy as may be available to them in law.