BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.421 of 2014
Date of institution: 12.06.2014
Date of Decision: 12.10.2015
Mrs. Paramjit Kaur wife of Sukhchain Singh, resident of House No.2402, Phase-X, Mohali.
……..Complainant
Versus
1. Globe Toyota Automobiles Pvt. Ltd., B-51, Industrial Area, Phase-VI, Mohali through its Managing Director Mr. Rishi Aggarwal.
2. Toyota Head Office India No.24, 10th Floor, Canberra Block, Vital Mallya Road, Bangalore 560001 through its Managing Director Mr. Hirosh Nakagawa.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Tarun Malhotra, counsel for the complainant.
Shri Ashutosh Aggarwal, counsel for OP No.1.
OP No.2 exparte.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following directions to the OPs to:
(a) pay her Rs.5,00,000/- as compensation on account of pain, harassment and mental agony.
(b) pay her Rs.33,000/- as costs of litigation.
The complainant purchased Toyota Fortuner vehicle from OP No.1 in July, 2013 for Rs.22,22,990/-. At the time of sale of the vehicle, the OPs assured the complainant that the vehicle is one of the best from the safety point of view of driver as well as passenger. It was informed that if any accident took place then the front air bags will get open and no injury would be caused to the driver or the passenger. The vehicle was duly registered with the registration authority and was also insured with ICICI Lombard Insurance Company. On 12.03.2014 the vehicle met with an accident and the driver suffered injuries. As claimed by the OP, at the time of accident, none of the air bags got opened. The complainant lodged DDR of the accident with the police and she also informed the insurance company about the accident. The complainant received Rs.22.00 lacs as claim from the insurance company for the total loss of the vehicle. However, the complainant lodged the complaint with the Ops regarding non opening of air bags at the time of accident. Even e-mails were also sent to the Ops but the Ops did not bother to look into the matter. The Ops are well aware about this problem in the vehicles which is evident from the notice with regard to recalling of the fortuner vehicles for faulting cable that prevents opening of air bags. The complainant got issued legal notice dated 21.04.2014 on the OPs calling them to pay her Rs.5,00,000/- as compensation for mental agony, torture and physical harassment which was duly received by them but was not replied till date. With these allegations the complainant has filed the present complaint.
2. After admission of the complaint, notice was sent to the OPs. OP No.1 in the preliminary objections of its written statement has pleaded that from the documents annexed by the complainant, it is ample clear that he was not driving the car at the time of accident. The DDR with the police was lodged by Prabhjot Singh. The complaint is an abuse of process of law. The complainant has already got the amount of Rs.22.00 lacs from the insurance company. On merits, the OP No.1 has pleaded that the allegations regarding air bags are not sustainable. It has never informed the complainant that if any accident took place then front air bags will get open and no injury would be caused to the driver or the passenger. However, the air bags of the vehicle opens as per the sensory system which operates the air bags at the time of accident. The vehicle had not got damage in the accident from front side which could have observed by the sensory system so as to open the air bags. Further in mild accidents, the air bags are not supposed to open due to the reason that they instead of helping the occupants may cause more damage to the driver as the driver may lose his control when the air bags opens frequently in mild accidents. Denying any deficiency in service on its part, OP No.1 has sought dismissal of the complaint against it.
3. As per the report tracked from the site of postal department summons issued to OP No.2 were delivered to him on 14.07.2014. However, none appeared for it. Thus, OP No.2 was proceeded against exparte vide order dated 30.07.2014.
4. To succeed in the complaint, the complainant tendered in evidence affidavit Ex.CW-1/1 and copies of the documents Ex.C-1 to C-8.
5. Evidence of OP No.1 consists of affidavit of Anoop Gupta, , its authorized person Ex.OP-1/1; affidavit of Manoj Kumar, Technical Leader Ex.OP-1/2 and copies of documents Ex.OP-1 to Ex.OP-3.
6. We have heard learned counsel for the parties and gone through the written arguments filed by the parties.
7. The purchase of the vehicle in question at a price of Rs.22,22,999/- is not disputed. The factum of accident of the vehicle in question on 12.03.2014 is not disputed. The honouring of the claim of the damaged vehicle by ICICI Lombard Insurance Company with whom the vehicle was insured is not disputed. The disputed question in the present complaint is regarding the non deployment of the air bag system at the time of accident of the vehicle on 12.03.2014. As per the complainant, the OPs claimed that the vehicles are subject to stringent tests of international standard and when they had sold the vehicle to her, whereas the non deployment of air bag system of the vehicle was defective and faulty causing preventable loss and injuries to the defective design of the product. Thus the OPs have indulged into unfair trade practice by projecting the safety features of their vehicle to be amongst best in the market for providing safety to the driver as well as passengers whereas on the day of accident on 12.03.2014 the air bag did not open and the vehicle turned ups and down causing injuries to the driver. According to the complainant, the OPs made false claims with regard to the safety measures of the vehicle, only with a view to promote sale and thereby indulged into unfair trade practice.
8. In reply OP No.1 the seller has raised preliminary objections regarding the locus standi of the complainant in preferring the complaint as the complainant was not driving the car at the time of accident and, therefore, she is not consumer as defined under Section 2 (1) (d) of the Consumer Protection Act. Further as per the complainant she herself admitted having received full and final amount of Rs.22.00 lacs from the insurance company for the loss of vehicle and, therefore, the question of any harassment, deficiency in service on the part of the OP No.1 does not arise. On merit, the stand of OP No.1 is that it never claimed to the complainant at the time of purchase that if any accident took place, the front air bag will get opened and no injury will be caused to the driver or the passenger. The air bag of the vehicle opens as per sensory system which operates the air bag at the time of accident. The air bag of the vehicle opens only when sensors installed at the specific point in the body of the vehicle reacts due to nature of impact received by them. In case of minor impact and the effect of which is not upon the sensor, then in such cases the air bags of the vehicle do not open. The sensors normally make the air bag opens in case of direct collusion or collusion of high density. As per the complainant, her driver was driving the vehicle at the time of accident at around 10.54 p.m. on 12.03.2014. When he applied the brakes to save a cyclist, the vehicle suddenly hit a berm and the vehicle got over turned. That shows that at the time of accident, the vehicle was never hit from front engine side and was damaged due to over turning of the same. This fact is duly corroborated by the photographs attached by the complainant as well as her statement in the DDR Ex.C-2. Since the impact of the accident was not from the front side which could have observed by the sensory system, so as to open the air bag. The sensory system is installed by the manufacturer in the vehicle, keeping in mind the safety of occupants of the vehicle in case of serious damage by way of front collusion. In the present case, there is no front collusion of the vehicle with any offending vehicle. Rather it is the complainant driver himself hit the vehicle on the berm of the road. In order to support its contention, OP No.1 has relied upon the affidavit Ex.OP-1/2 of Shri Manoj Kumar, Technical Leader and his observations Ex.OP-1 on air bag non deployment to the vehicle in question. Perusal of the observation shows that no damages were found on the impact sensors (LH SIDE IMPACT SENSOR AREA DAMAGED). Based on the spot observation, the vehicle was inspected again by the engineer and the technical Leader of the OP No.1 gave his conclusion that the vehicle had first hit the sign board which got completely uprooted from the ground and the concrete in which it was fixed had hit the vehicle on the left hand side of the engine cover due to which the vehicle toppled towards the right hand side and just before toppling there was a minor impact on the tree. The vehicle had hit the sign board and the sign board has completely absorbed the impact and uprooted from the ground. Thus, there is no manufacturing defect or error in the vehicle for non deployment of air bag in the said vehicle. Therefore, the vehicle has not met the air deployment condition during accident. Thus, there is no defect in the air bag deployment system in the vehicle in question. Further on the request of the complainant dated 12.04.2014 regarding non deployment of air bag in the vehicle in question, the OPs have got the vehicle inspected by PKM officials to investigate the matter and the PKM officials have confirmed that though the vehicle met with an accident, however, the air bag deployment condition was not met. Further as per the OP No.1, after the accident, as per the complainant her driver suffered injuries, the complainant has failed to produce any evidence to that effect and, therefore, it is a false and frivolous complaint just to harass and defame the OP No.1. OP No.1 has specifically denied the allegations of unfair trade practice.
9. Before going into the merits of the complaint it will be appropriate to consider the preliminary objection raised by OP No.1 regarding that the complainant is not a consumer. It is admitted preposition of the parities that the complainant has purchased the vehicle from the OPs for paying consideration amount of Rs.22,22,999/- 25.07.2013 from OP No.1 and the same is duly registered with the registration authority as per Ex.C-1 and is further duly insured vide Ex.C-2 i.e. certificate of insurance-cum-policy schedule. The complainant has fully satisfied the parameters of Section 2 (1) (d) of the Consumer Protection Act to come within its ambit to be a consumer under the Consumer Protection Act. Therefore, the plea of OP No.1 is not sustainable in this regard and the complaint filed by the complainant, being a consumer is maintainable.
10. The first question which arises for consideration in this complaint is whether the said air bags got deployed or not when the vehicle hit against the side berm of the road and turned turtle. The case of the complainant is that the air bag did not deploy at all whereas the case of OP No.1 is that the air bag did not deploy due to the sensor system not getting activated due to impact of the accident. No technical evidence has been produced by the complainant to prove that the said air bag in the car did not deploy at all when the vehicle met with an accident. No technical expert such as an automobile engineer was engaged by the complainant to inspect the car soon after the accident and examine whether the air bags had actually deployed or not. In fact no technical expert was consulted by the complainant at any point of time before filing the complaint and even after receiving the reply of the OP No.1 wherein it had clearly stated that the air bag gets deployed only in case of head on collusion of the vehicle. No rebuttal evidence has been produced by the complainant.
11. It was pointed out by learned counsel for the complainant that the complainant has received full and final payment from the insurance company as the vehicle was fully damaged as is evident from photographs Ex.C-3/A. The complainant has not even attached copy of the surveyor report and final claim statement issued to her by the insurance company to show whether there was a reference to the air bag in the surveyor report or not. Thus, considering that no technical evidence having been led by the complainant to prove that the air bag had not deployed at all causing injury to the driver on the date of accident. Thus, the complainant has failed to prove her case of deficiency in service and unfair trade practice on the part of the OPs.
12. Therefore, the complaint being devoid of any merits, is hereby dismissed. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
October 12, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
