Haryana

Karnal

CC/89/2019

M/s Liberty Shoes Limited - Complainant(s)

Versus

Honda Cars India Limited - Opp.Party(s)

A.K. Rana

20 Aug 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                       

                                                Old complaint no.326 of 2009

                                                New complaint no.89/2019

                                                Date of instt. 5.3.2009/20.2.2019

                                                Date of Decision 20.08.2019

                                                       

Liberty shoes Ltd. Liberty Puram, Kutail, 13^th Mile Stone, G.T. Road, Karnal through Shri Ashok Rana.                              

…….Complainant

                                        Versus

 

1. Honda Siel Cars India Limited, plot no.A-1, Sector 40-41, Surajpur- Kasna Road, Greater Noida Industrial Development Area, District Gautam Budh Nagar (U.P.), through its Managing Director.

2. Honda Prestige Honda, Lally Motors Ltd. 117/8, K.M. Mile Stone, G.T. Road, Madhuban, Karnal through its proprietor.

 

                                                                         …..Opposite Parties.

 

           Complaint u/s 12 of the Consumer Protection Act. 

         

Before    Sh. Jaswant Singh……President. 

                Sh. Vineet Kaushik………Member

                Dr. Rekha Chaudhary……Member

 

 Present:  Shri A.K. Rana Advocate for complainant.

                  Shri Jitender Veer Singh Advocate for opposite party.

 

                   (Jaswant Singh President)

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that the complainant is a limited Company working under the name and style of Liberty Shoes Ltd. The complainant purchased one car bearing Engine no.K2AZ11757518, chasis no.JHMRE4827C300793, make Honda CR-V 2.4 A/T, Type of Body Saloon and colour Whistler Silver Metallic from the OP no.2 being authorized dealer of OP no.1, vide invoice no.753 dated 26.03.2007 for a sum of Rs.19,50,000/-. The said car was got registered, vide registration no.HR-42-0009 from Registering Authority, Haryana, Chandigarh. The representative of the OPs intimated the vehicle has supplemental restrained system (SRS) with front airbags to help protect the head and chests of the driver and a front seat passenger during a moderate to severe frontal collusion as has been shown on page-29 of the Owner’s Manual. It was intimated that the vehicle also has side airbags to help protect the upper toso of the driver or a front seat passenger during a moderate to severe side impact. Similarly, information has been given that the vehicle is also having side curtain airbags to help protect the heads of the driver, front passenger and passenger in the outer rear seating position during a moderate to severe side impart or rollover. It has also been intimated that provided in the manual if you ever have a moderate frontal collusion, sensor will detect the vehicle’s rapid deceleration and the control unit will instantly inflate the driver’s and front passenger’s airbags at the time and with the Force needed. It has also been intimated that total time of inflation and deflation is 1/10 of second. Keeping in view the safety measures and on supply of the said information, the complainant purchased the aforesaid vehicle by spending huge amount with the assurance that the driver/passengers will be safe in case of any accident.

2.             Further, unfortunately, on 15.01.2009 at around 5 P.M. while travelling on the G.T. Road, the abovesaid Honda CRV, a wild cow suddenly appeared in front of the car and caused the major accident. As per advertisement and specification, features of the vehicle presented by the OPs and the information given by the Sales representative of the OPs  and the information given in the owner’s manual, airbags were required to be developed at the time of collusion but safety airbags failed as the airbags did not open. The OP no.1 was intimated, vide letter dated 17.01.2009 by the complainant regarding the accident and safety failure. It has been also averred that the OPs were also intimated that the car was purchased by Liberty Shoes Ltd. from their dealer i.e. OP no.2 for travelling use of their Directors. The option to choose the said vehicle was purely upon the reputation of the Honda Company through safety standards being followed and provided by the company. Taking into accident the above facts the vehicle was purchased on the faith imposed upon the OPs was shattered to pieces on 15.01.2009 when the vehicle met with an accident and the safety provided in the vehicle failed. The accident was very severe. It was a head on collusion with a running wild cow right in the centre of the front of the vehicle, smashing the bumper out. Radiator and Condenser plugging 8” to 10” in towards the engine, head light smashed and bonnet deshapped forming a hunch and wind screen cracked. Photographs of the damaged car were taken and the same were also sent to the OPs for examination and further action. The car after damage was also sent to the workshop of the OP no.2 and the OP no.2 submitted estimate to the tune of Rs.4,80,705/-, vide invoice no.805837 dated 24.02.2009 for the repair of the said vehicle. The OPs were requested to return the cost of the car as the safety provided and intimated to the complainant had totally failed. But the OP no.1, vide their letter dated 17.02.2009 has only regretted regarding the unfortunate accident. From the paragraph Annexure-E and the estimate prepared by the OP no.2, it is very clearly proved that the impact was severe as mentioned above. Infact, the safety provided in the Car was defective and it was a case of safety failure for which the OP no.1 being manufacturer of the car and the OP no.2 being authorized dealer, both are responsible. Non-operating failure of the airbags is clearly a deficiency in service on the part of the OPs which caused mental pain, agony and unnecessary harassment as well as financial loss to the complainant. Through this complaint complainant prayed for refunded the price of the car and Rs.11,000/- as litigation expenses.

3              Notice of the complaint was given to the OPs, OP no.1 appeared and filed written version stating therein that the present complaint is not maintainable under the provisions of Consumer Protection Act, 1986 for the reason that the car has been purchased in the name of M/s Liberty Shoes Ltd. for commercial purpose to accelerate the growth and expansion of the complainant’s already existing business. Section 2(1)(d) of the said Act categorically excludes from its ambit any goods purchased for commercial purpose. The complainant has failed to state the manner in which the accident occurred on 15.01.2009 and how the same can be attributed to any inherent manufacturing defect in the car. Therefore, in the absence of any specific allegation against the OP, the complaint deserves dismissal. The complainant has himself admitted in paragraph no.6 of the complaint that “unfortunately the car of the complainant met with an accident on 15.01.2009 at 5.00 p.m. at G.T. Road.” The admission made by the complainant clearly shows that the present complaint is not that of any manufacturing defect or deficiency in service or any unfair trade practice but that of an accident case, which is beyond the purview of the Consumer Protection Act, 1986, therefore, for this decision only, the present application deserves to be dismissed. No liability can be caste upon the OPs towards the repair/replacement of the subject vehicle as the same had suffered a accident. Undisputedly and as specifically stated in the owner’s manual, the warranty policy ceases to operate in case the vehicle has been a subject to an external impact. In view of the same, the present complaint is liable to be dismissed as the complainant alone is responsible for the accident of the car and the OPs are not obliged to repair/replace the subject car free of cost under the warranty as the warranty policy of the subject car has ceased to operate after the accident of the subject vehicle. The car is fitted with moderate severe front impact sensor which indicates in case there is any problem in the air bags, an electronic system which continuously monitor the sensor and the air bags etc. The non-inflation of the airbags can only be attributed to the non use of the seat belts by the complainant at the time of the accident. In the present case the collision did not cause sufficient deceleration for the airbags do not deploy. The airbags are activated only if certain specific pre conditions vis a vis the collision angle, collision speed or collision obstacle are met. In t he present case the car had collided with a cow and not a static/regid object, therefore, the desired rate of deceleration has not been achieved for the airbags to activate. It is also mandatory that seat belts should be used while driving the car in question but at the time of alleged accident, the driver of the car was not using the seat belt. The other averments made in the complaint have been denied by the OP no.1.

4.             OP no.2 followed almost same lines of OP no.1 in its written statement.

5.             Complainant tendered into evidence affidavit of Ashok Rana Ex.C1 and documents Ex.C2 to Ex.C21. After remanded back the present case complainant tendered into evidence affidavit of Shammi Bansal Ex.C22 and documents Ex.C23 to Ex.C27 and closed the evidence on 04.07.2019.

6.             On the other hand, OPs tendered into evidence affidavit of Amit Sinha Ex.O1 and document Ex.O2. After remanded back the case OPs tendered into evidence affidavit of M.K. Bipin Ex.RW1/A and documents Ex.RW1/1 to Ex.RW1/8 and closed the evidence on 23.07.2019.

7.             The case of the complainant is that the complainant is a limited company working under the name and style of Liberty Shoes Ltd. The complainant had purchased one car from OP no.2 being authorized dealer of the OP no.1, vide invoice no.753 dated 26.03.2007 for a sum of Rs.19,50,000/-. The said car was got registered vide registration no. HR-42-0009 from Registering Authority Haryana, Chandigarh. The representative of the OPs intimated that the vehicle has supplemental restraint system (SRS) with front airbags to help protect the heads and chests of the driver and a front seat passenger during a moderate to severe frontal collusion.

8.             On the other hand, case of the OP in brief is that complaint is not maintainable under the provisions of Consumer Protection Act, 1986 for the reason that the car has been purchased in the name of M/s Liberty Shoes Ltd. for commercial purpose. The complainant has failed to state the manner in which the accident occurred on 15.01.2009 and how the same can be attributed to any inherent manufacturing defect in the car. Therefore, in the absence of any specific allegation against the OP, the complaint deserves dismissal. The car is fitted with moderate severe front impact sensor which indicates in case there is any problem in the air bags, an electronic system which continuously monitor the sensor and the air bags etc. The non-inflation of the airbags can only be attributed to the non use of the seat belts by the complainant at the time of the accident. In the present case the collision did not cause sufficient deceleration for the airbags do not deploy. The airbags are activated only if certain specific pre conditions vis a vis the collision angle, collision speed or collision obstacle are met. In the present case the car had collided with a cow and not a static/regid object, therefore, the desired rate of deceleration has not been achieved for the airbags to activate. It is also mandatory that seat belts should be used while driving the car in question but at the time of alleged accident, the driver of the car was not using the seat belt.

9.             It is pertinent to mention here that the present complaint was allowed by our predecessor on 05.12.2012. The OPs no.1 and 2 challenge the order passed by this Forum before the Hon’ble State Consumer Disputes Redressal Commission, Haryana, Panchkula by way of separate appeal. The Hon’ble State Commission, vide its order dated 21.02.2013 allowed the appeal on the ground that complainant was not a consumer under the Act.

10.            Being aggrieved by the determination of the Hon’ble State Commission, complainant preferred revision petitions before the Hon’ble National Commission and Hon’ble National Commission,  vide its common order dated 29.01.2019 remanded the matter back to this Forum for determining the issue as to whether the complainant was indeed a consumer under the Act and the complaint shall decide afresh without being influenced in any manner from the orders passed earlier which was later set aside by the State Commission.

11.            After remanding back the case the complainant has put his appearance and filed an affidavit Ex.C22 of the Director of the company namely Shammi Bansal who has specifically deposed that the car in question was purchased by the company for his personal use and he is an executive director of the company. Further, the complainant has also deposed that the car has never been used commercially nor it has been registered as a commercial vehicle. Now the ill fated vehicle is not in the possession of the complainant.

12.            After remanding back the case, OP tendered the affidavit Ex.RW1/A of M.K. Bipin Manager legal and documents Ex.RW1/A to ExRW1/8.

13.           We have heard the learned counsel for both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

 

14.            The complainant has duly proved its complaint and the core issue which has to be decided by this Forum as per the direction of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that whether the vehicle in question was of commercial use or personal use being used by the director. To prove its contention, the complainant is relying upon the following citations Karnataka Power Transmission Corpn. And anr. Versus Ashok Iron Works Pvt. Ltd. (Civil Appeal Nos. 7784 of 2002 and 1879 of 2003 of Hon’ble Supreme Court; M/s Tata Motors Ltd. Versus Sharad & Anr. date of decision 19^th May, 2016 and Crompton Greaves Limited & Anr. Versus Daimler Chrysler India Private Limited & Ors. Consumer case no.51 of 2006 date of decision 08.07.2016 of Hon’ble National Commission. 

 15.           We have gone through the affidavit Ex.RW1/A and documents Ex.RW1/1 to Ex.RW1/8, there is nothing that car in question purchased/used by the complainant for commercial purpose. During the course of evidence, neither a single witness examined by the OP nor any documentary evidence produced by the OPs to ascertain that the vehicle in question was used by the complainant for a commercial purpose. It is admitted that the vehicle in question was purchased in the name of company. The mobile number was given at the time of purchasing the vehicle to the OPs by the company one of the Director i.e. complainant. The vehicle had travelled more than 86,200 Kms between 2007 to 2009 as alleged by the OPs, it does not mean that vehicle was used by the company for the commercial purpose and not only on personal use of the Director. Moreover, the vehicle in question was not registered as a commercial vehicle with the Registering Authority Chandigarh.

16.            In Karnataka Power Transmission’s case (Supra), the Hon’ble Supreme Court held that “Consumer Protection Act, 1986 (as existed in 1992)- Sections 2(1)(d) and 2 (1) (m)-Word person in Section 2(1)(m)-Definition inclusive and not exhaustive so no doubt that company is person within meaning of Section 2(1)(d) r/w Section 2(1) (m).

          Consumer Protection Act, 1986-Sections 2(1)(d)(g) and 2(1) (o)-Supply of electricity to consumer-Is not sale and purchase of goods within meaning of Section 2(1)(d)(i)-Dispute raised by company is with regard to non-performance of service for consideration within time frame-Thus, company is consumer within meaning of Section 2(1)(d) (ii)-Supply of electricity is service within meaning of Section2(1)(o)-If supply of electricity to consumer not provided in time as agreed upon-There is deficiency in service under section 2(1)(g)-Amendment of Section 2 (1)(d) (ii) by Act 62 of 2002 not applicable-Since controversy in present case related to period prior to amendment-Hence, complaint by company before District Forum-maintainable.

                   In Crompton Greaves Limited’s case (supra) it is held by the Hon’ble National Commission the cars are purchased for the use of the Directors and are not to be used for any activity directly connected with commercial purpose of earning profit. Cars are not used for hire but are for the personal use of the Directors, Hence, it cannot be said that the complainant company has purchased the cars for commercial purpose.

                In view of the facts of the case and observation made in the judgments cited above, we are of the considered view that the complainant company has purchased the car for personal use of Directors and not for commercial purpose. Thus, complainant falls under the definition of consumer.

17.            On 15.01.2009 car met with an accident and due to badly hit by a cow and the front portion of the entire car was almost damaged. Inspite of the severe accident airbags of the car were not opened.

18.            The OP has filed the affidavit Ex.RW1/A of M.K. Bipin Manager Legal, in para no.11 of the affidavit has stated that “the collusion with the cow did not cause sufficient deceleration for air bag to deploy.” Further, in para 14 of the affidavit the OPs have also stated “airbag are designed to only inflate in moderate to severe frontal crashes airbag usually do not protect the occupant during side, rear or role over accident.

19.            Admittedly, the airbag had not opened at the time of accident. Complainant had purchased the vehicle from the OPs by paying huge amount i.e.Rs.19,50,000/- with assurance that driver/passengers will be safe in case of any accident. The case of the OPs is only that the airbag has not been activated because the car was not hit with a static/rigid object then the seat belt theory cannot be sustainable.  There is no proof on the file that seat belt was not tied up by the occupant. As per the car manual the sensor system of the car is so sophisticated and “the SRS indicator alerts the occupant to a potential problem with the airbags, sensor or seat belt tensioners.” From the Photographs Ex.C14 to C20 it appear that vehicle in question has badly damaged and airbag should be opened in such severe accident.

20.            There is no dispute regarding the fact that the complainant has purchased the car in question from OP no.2 for a sum of Rs.19,50,000/-. The OP no.2 has assumed the complainant that the vehicle is having Supplemental Restraint System with front airbags to help protect the heads and chest of the driver and a front seat passenger during a moderate to severe frontal collusion as has been shown in the owner’s manual. On 15.01.2009 the car in question met with an accident with cow. After the accident the Supplemental Restraint System (SRS) with front airbags to protect the occupant had not been opened. The complainant has paid Rs.19,50,000/- for purchase of the car in order to get Supplemental Restraint System (SRS) to save the Driver and front seat passenger during a moderate to severe frontal collusion. Since the said system had not worked. We are of the view that there was deficiency in service on the part of the OPs .

21.            It is admitted by the complainant that now the ill-fated car is not in the possession of the complainant due to old model. So, the question for replacement of the said vehicle does not arise. We are of the view that it would be justified if the complainant be compensated with the heavy compensation due to the deficiency in service.

22.            In view of the above discussion, we partly allow the complaint and direct the OPs to pay compensation to the tune of Rs.10,00,000/-(ten lakhs only) to the complainant on account of deficient service,  mental agony and harassment suffered by him and Rs.11,000/- for the litigation expenses. Both the OPs are jointly and severally liable to pay the awarded amount. This order shall be complied within 30 days from the receipt of copy of this order. It is made clear if the awarded amount is not paid by the OPs within stipulated period then it will carry interest @ 9% per annum from the date of filing the complaint i.e. 05.03.2009 till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:20.08.2019

                                                                       

                                                                  President,

                                                           District Consumer Disputes

                                                           Redressal Forum, Karnal.

 

 

        (Vineet Kaushik)     (Dr. Rekha Chaudhary)

            Member                     Member