CC .No.109/2018

ORDERS ON ADMISSION

          The complainant purchased the car by paying the consideration of Rs.31,48,983/-  which had inherent and latent manufacturing defect.  The car was bought neither for its use as a taxi nor for the purpose of carrying any goods and the car was not for business.  O.P.No.1 is the manufacturer of Hyundai, O.P.No.2 is the dealer and O.p.No.3 is the authority authorized under Rule 126 of Central Motor Vehicles Rules, to test and certify fully built motor vehicles and their parts, for the exclusive use of the complainant No.2 Complainant No.1 required to purchase a new car and was influenced by the positive review on the stability, safety and performance of SANTA FE cars as made available on the website of the O.P.No.1.  The car was purchased with insured with ICICI Lombard by paying an insurance premium of Rs.90,030/-. The car was purchased through a loan obtained from HDFC bank.  The car was delivered to complainant No.1 by O.P.No.2 on 5.4.2016 vide delivery receipt and gate pass dated 5.4.2016 and the car was registered in the Office of RTO, Jayanagar, Bangalore on 6.4.2016 with the Reg. No. KA 05 MT 6800. The car has an automatic transmission and before delivery of the car personnel of O.P.No.2 had represented and assured the complainants, that the car is free from all manufacturing defect and is designed and manufacturing with all the safety requirements for its use upon the roads. 

There is a latent defect which could not have been revealsed on an examination of the car at the time of taking delivery of the car. O.P.No.1 and 2 also never informed the complainants the car has inherent and latent defect in it. Complainant No.1 had hired a proficient and experienced driver having a valid and effective driving license, the car was used interalia to take complainant No.2 from his residence Jayanagar  to his office in Basavanagudi. During one such ride on 20.05.2016 with the complainant No.2 seated in the front seat beside the driver, that the car was required to take a right towards 5^th main road from  33^rd Cross, Jayanagar, Bengaluru, the driver was not able to slow down the car before taking a right turn but the car unexpectedly shot out of control of the dirver and hit a lamb post on the left side of the road. The car did not stop even after hitting lamp post but uncontrollably moved further ahead in a great speed and came to halt only after hitting the median on the 4^th main road. Due to this impact the car suffered extensive damage. Complainant no.2 suffered serious injuries and momentary loss, complainant No.2 was taken to Appollo speciality hospital, Jayanagar and admitted there for further treatment. After necessary treatment and other advises the compaliannt NO.2 was discharged from the hospital on 21.5.2016, complainant No.2 suffered “POLY TRAUMA WITH D4 THORACIC TEAR DROP FRACTURE (ASIA SCALE E)” as per the medical report. When the compaliannt No.2 was admitted to the hospital without his knowledge a letter dated 21.5.2016 was sent to police authorities by a director of compalinant No.1 company mentioning theirein that the accident had occurred while the driver took the car to the left side of the road in order to avoid head on pollution with a bike rider.   On the request of police the car was inspected by an Inspector of Motor Vehicles, the IMV land even the basic technical wherewithal to test various machanisms of modern cars including automatic transmission and electronic gadgets  used in such cause.  Lacking such facilities to test various components of the car the IMV subjectively concluded in the report that the accident was not due to any machincal defect of the car.  

        Based upon such an erroneous report given by the IMV without even recording of the statement of the complainant No.2 who was an eye witness, police authorities concluded that the driver had driven the vehicle in a rash and negligent manner and he was chargesheeted under Section 279 of IPC. Within a few days after the accident the driver left the job. It is learnt that the driver has pleaded guilty  to the charge framed by the police.  Google map showing the spot of the accident produced which indicates that the car had gone out of control and moved for a distance of morethan 40 meters from the point where the car was supposed to slow down and take a right turn. It is to be noticeable that, nothing could stop the car at that movement except a solid barriear.  The complainants have reserved the car in the same condition from the date of accident till this day complainant No.1 applied for cancellation of registration certificate in order to obtain life time tax paid at the time of registration.  The registration had been cancelled by the RTO concerned on 10.2.2017 and a pro-rata amount of tax has also been refunded.  Complainant produced the copy to explain the phenomenon called SUA it cannot discerned from the document that SUA occurs due to defects in electronic circutary used in a car with automatic transmission with other electronic systems. This phenomenon of SUA occurs mostly in cars with automatic transmission for the simple reason that there is no clutch mechanism which can be used by the driver to disconnect wheels of the car from the power of the engine whenever the engine accelerates beyond the speed  anticipated by the driver. Due to this phenomenon of SUA uptimes without any forewarning the car suddenly accelerates on its own and goes out of control of the driver. In such cause even the breaks of the car could not help in stopping the car he pleeds so that any accident could be avoided by the driver.  The frequency with which or the time at which SUA occurs in any car  cannot also be predicted.  Traces of any defects in the car cannot also be found in the car after such SUA since the car, if it does not meet with an accident and get damages presumes its normal operation after such SUA. Hence such cause with automatic transmission without any safety device to avert any accident due to SUA or turned as “Deadly By Design” or “Run–away cars” or “cars with their own mind”. Complainant also produced a document umpteen videos covering this aspect available in the popular social media called “You Tube”.  Neither the instructions manual pertaining to the car in question supplied by the O.p.No.1 and 2, contained any information about this  phenomenon  of SUA nor did O.P No.1 and 2 inform the complainants at any time about such a phenomenon.  Due to this failure the safety of the complainant No.2 and other users of the car is under jeopardy.  The concept SUA is not a new phenomenon it is experienced for quite many years by drivers worldwide in respect of cars with automatic transmission irrespective of make and model. 

        Considering the number of fatal accidents occurring due to SUA the NHTSA published a notice of proposed rule making to amend the safety standard under number FMVSS No.124 which relates to Acceleration Control System in cars. By virtue of the proposal NHTSA intended to make it compulsory for car manufacturer to incorporate in the ACS a system known as “Break Throttle Over –Ride”. The system of BTO ensures that use of breaks of the car in any situation over rides the ACS of the car so that the engine does not accesllarate on its own whether driver applies the breaks, thus BTO systems is meant to prevent SUA atleast that the driver of the car applies breaks in any emergency situation irrespective of whether the accelerator pedal is depressed or not.  Many manufacturers in USA being in the know of SUA had valuentarily incorporated the system of BTO in the cars manufactured by them.  The system of BTO was absent in the car sold to the complainants by the O.ps No.1 and 2 this is exactly the reason for the complainants to averred that the car in question had a manufacture defect in it. 

        In India it is the duty and responsibility of ministry of road transport and highways to ensure safety of road users and other interest of the consumers.  Sub Seciton (1) of Section 109 of the Motor Vehicles Act, 1988 mandates that “Every motor vehicle can be so constructed and so maintained has to be all times under the effective control of the person driving the vehicle.” Thus O.P.No.1 is under a legal obligation to manufacture cars that remain at all times under the effective control of the person driving the cars.  

       In order to find out the car in question had been test and certified for all the safety requires and application under RTI Act was filed on 5.10.2017 before O.P.No.3 and O.P.No.3 replied through his letter dated 11.10.2017, the car had been tested and certified by O.P.No.3 based on irrelevant and out dated standards to the detriment of the users of the car and other road users.  On 2.9.2016 complainant addressed a letter to O.p.No.1 and 2 regarding the accident due to SUA and seeking the compensate for the loss. This was received by the O.p.No.1 and 2.  Complainant addressed another letter dated 7.10.2016 to O.P.No.2 and marked the copy to O.P.No.1, only O.P.No.1 replied.  Complainant addressed a ltter dated 15.2.2017 to the under secretary in MORTH requesting him to inform the complainants about the position of the letter dated 28.1.2017 as the complainants addressed a letter dated 28.1.2017 to the joint secretary in MORTH.  On 14.2.2017 complainants wrote the Sub-inspector police, Jayanagar, Bengaluru calrifying the matter in detail that the accident had not occurred due to the rash and negligenct act of the driver but due the manufacturing defect in the car. But there was no reply.  There was no response to any of the letter addressed to various officers/authorities complainant took up the matter to the Nodal Public Grievence Officer working under MORTH through a letter dated 4.4.2017, no response.  Complainants informed to the various other departments regarding the issue but there was no fruitful results.  Hence this complaint.

        On the perusal of the lengthy complaint and various documents filed by the complainants, it reveals that the grievence of the complainants is “Due to sale of a car which had in inherent lacuna of not having provided with BTO system to prevent accidents due to SUA the car purchased by complainant from O.P.No.1 and 2 met with an accident due to SUA resulting in monetary loss to the complainant No.1.”

      We have got powers only to deal with provisions of Section 2(1) (d)reads as under:-

(d) “consumer” means any person who,—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) ¹² [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ¹² [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person ¹³ [but does not include a person who avails of such services for any commercial purpose];

         But we have no powers to direct any manufacturers of the cars to incorporate the phenomenon called SUA or system of BTO to amend the safety standard under No.FMVSS No.124 which relates to ACCENETION control system in cars.  According to complainant NHTSA intend to make it compulary for car manufactures to incorporated in the ACS a system known a Break Throttal over Ride (BTO). This system of BTO enforce that use of breaks of the car in any situation over rides the ACS of the cars so that the engine does not accellarate on its own when the driver applies the breaks . Thus BTO system is ment to prevent SUA atleast when the driver of the car applies breaks in any emergency situation irrespective of whether the accelerator pedal is depressed or not.  For the questions raised by the complainants in the RTI the reply was given by the automotive research association of India stating that no mandatory requirement under Central Motor vehicle rules for the points (questions) raised by the complainants: 1) Whether this model car has been tested for occurance of unintended acceleration? 2) whether this model car is/was equipped with “ break throttal over ride system”?.

       When there is no mandatory requirement under central motor vehicle rules as per the automotive research association of India, this Forum cannot direct any manufacturer regarding the break throttle over ride system or any other system.

       As per Para 16 of the complaint, the registration has been cancelled by the RTO concerned on 10.02.2017 and a prorate amount of the Tax has also been refunded.

        Moreover, as per Para 43 of the complaint, complainants purchased the car for Rs.31,48,983/- and recovered insurance a sum of Rs.30,17,139/-.

         The complainant prayer is for the loss suffered by the complainant to the tune of Rs.8,12,717/- for the heads mentioned in the para No.43 but complainant is not entitled for any such heads. 

      Therefore, under the above stated circumstances, the complaint is hereby rejected.           

MEMBER                   MEMBER                PRESIDENT