1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondent(s) as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 02.07.2019 of the State Consumer Disputes Redressal Commission, Andhra Pradesh, Vijaywada (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.467/2015 in which order dated 27.11.2014, District Consumer Disputes Redressal Forum, Kurnool (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 56/2012 was challenged, inter alia praying to set aside the order passed by the State Commission and District Forum.

2.       While the Revision Petitioner (hereinafter also referred to as OP-1) was  Appellant-1; Respondent-1 (hereinafter also referred to as Complainant) was  Respondent-1; Respondent-2 (hereinafter also referred to as OP-2) was Appellant-2 and the Respondent-3 (hereinafter also referred to as OP-3) was Respondent-2 in the said FA/467/2015 before the State Commission, the Revision Petitioner was OP-1; Respondent-1 was Complainant; Respondent-2 was OP-2 and Respondent-3 was OP-3 before the District Forum in the CC/56/2012.

3. Notice was issued to the Respondent(s). Parties filed Written Arguments/Synopsis on 28.12.2022 (Petitioner/OP-1), 17.03.2023 (Respondent-1/Complainant), 19.01.2023 (Respondent-2/OP-2) and 14.06.2022 (Respondent-3/OP-3) respectively.

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:-

The complainant purchased a Toyota Innova 2.5V (M4)-(7S)-(VX) Model from the OP-2 for a sum of Rs. 12,43,045/-. The vehicle, registered as KA 53 P 7697, was found to be not up to the mark. Ten days prior to 16.08.2011, while the complainant was traveling in the said vehicle, heavy smoke emanated from the clutch plates, eventually causing them to burn on the road itself. On 16.08.2011 at 3:00 PM, while traveling from Kurnool to Bangalore, the vehicle was involved in an accident, colliding with an auto near Yerrakatwa Cross Road, Ulindakonda Village of Kurnool District on NH-7 Road. During the accident, the airbags, expected to open and safeguard the vehicle's occupants, failed to deploy. The front portion of the vehicle sustained severe damage, and all the occupants suffered injuries. It is alleged that the vehicle sold to the complainant by the OP-2 was defective. Following the accident, the vehicle was handed over to the OP-3 for repairs at the nearest service station. However, without providing any estimation or intimation, the OP-3 proceeded with repairs, including welding works on the vehicle's body. Due to the negligent acts of the OP-2 & OP-3, the complainant endured considerable suffering, including reliance on hired vehicles incurring significant expenses. The complainant issued a legal notice on 22.02.2012 to the OPs (OP-1, OP-2 and OP-3), requesting the replacement of the defective vehicle with a new one and compensation for mental agony. While the OP-3 responded with false averments, the OP-1 & OP-2 remained silent. Consequently, the complainant filed a complaint seeking the replacement of the vehicle or, alternatively, a refund of its cost, compensation for mental agony, and costs incurred.

5.       Vide Order dated 27.11.2014, in the CC no. 56/2012 the District Forum has---

1. partly allowed the complaint and directed OP-1 & OP-2 to replace the vehicle to the complainant, of the same model with new one and if such vehicle is not available, to return the amount of Rs. 15,09,415/- with interest @ 9% p.a. from the date of accident (16.08.2011) till the date of payment.

2. Directed OP-1 & OP-2 to pay a sum of Rs. 10,000/- towards compensation for mental agony; and to pay Rs. 5,000/- towards cost of litigation to the complainant.

3. Dismissed the complaint against OP-3.  

6.       Aggrieved by the said Order dated 27.11.2014 of District Forum, Petitioner along with Respondent-2 appealed in State Commission and the State Commission vide order dated 02.07.2019 in FA No.467/2015 has upheld the District Forum’s order and dismissed the appeal.

7.       Petitioner has challenged the said Order dated 02.07.2019 of the State Commission mainly on following grounds:

1. The impugned order demonstrates a complete lack of the application of judicial mind by the State Commission. It is whimsical, conjectural, without merit, and beyond the periphery of reasonableness. The State Commission failed to appreciate that SRS front airbags are designed to deploy in severe frontal collisions, and the collision in this case occurred on the left side. The failure or otherwise of the airbag should be tested based on two factors: frontal collision and forward deceleration or the speed at which the vehicle stops. These factors were not considered, much less examined, by the State Commission or the District Forum. The airbag could be deemed to have malfunctioned only if it does not deploy when the frontal impact exceeds the set threshold level. Without this assessment, it is not safe to conclude a failure of the airbag to deploy.

2. The State Commission did not recognize that the accident involved a side collision, not a frontal impact. In the case of a side collision, the airbag could not have possibly deployed, a fact supported by the Owner's Manual. The failure of the State Commission to acknowledge this constitutes a misinterpretation of the evidence. The impugned order based its finding of a defect on photographs, which is absurd. The meeting of the threshold limit, subject to the nature of the collision, is necessary to trigger airbag deployment. Relying solely on photographs or damage suffered is a flawed proposition. The State Commission failed to appreciate the cardinal principles of evidence appreciation. A statement from the deposition of a witness is cited as an admission by the State Commission, but the statement lacks the clarity required for an admission. The State Commission acted ignorant to this fact, and its reliance on the statement to dismiss the appeal is flawed.

3. The complainant was the user, not the owner, of the car, and therefore, the complainant is, at most, entitled to damages, not a refund. The lower courts exceeded their jurisdiction under Sections 14 and 18 of the Act by awarding a refund of the cost of the car. The State Commission misunderstood the deposition of RW.1 (Mr. Karthikeyan V.), suggesting that the impact was initially a side collision but may have later taken on a frontal undertone. This interpretation is speculative and unsupported by evidence. Similarly, the State Commission misinterpreted the deposition of PW.1 (Mr. Prashant Kumar), who admitted to having no experience in assessing car damages and not inspecting the subject car. The State Commission did not correctly apply the criteria for airbag deployment. The collision was not frontal but on the driver's side, making airbag deployment unnecessary. The State Commission relied on photographs alone without considering the criteria for deployment. The reliance on newspaper reports to support findings about the airbag being defective is erroneous. The reports are irrelevant to the subject car's model year and carry no evidentiary value unless proved by the maker of the statement.

4. The State Commission endorsed a manufacturing defect based on a previous clutch-plate change, disregarding warranty exclusions, the reason behind the burn, and the car's low mileage at the time of repair. The State Commission did not consider the potential harms of airbag deployment in an unlikely situation, such as injuring the driver and encroaching upon breathing space. Additionally, the State Commission failed to follow the procedure outlined in Section 13 of the Act, which mandates appointing an independent expert to investigate cases requiring analysis. This procedure was not followed in the present case. The burden of proving manufacturing defects rested with the complainant, which they failed to discharge.

5. The technology used in the vehicle is approved by the Automotive Research Association of India (ARAI), which has expertise and international recognition. Additionally, the repair estimate did not include changing the airbag or related components, suggesting that the impact did not affect the necessary sensors for deployment. There is a need for expert evidence to support claims of manufacturing defects. Furthermore, there should be targeted component replacement rather than replacing the entire vehicle. The finding of manufacturing defects and service deficiencies by the State Commission is flawed due to a lack of consideration for relevant evidence. The order and findings are perverse and demonstrate a disregard for evidence, warranting a re-examination by the Commission under its revisional jurisdiction.

8.       Heard counsel for Petitioner, Respondent-1 in person and counsel for Respondent-2. Respondent-3 is proceeded ex-parte.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

1. The counsel for petitioner/OP-1 contests the courts' finding that severe injuries were sustained, arguing that contrary to the court's conclusion, the complainant emerged unharmed from the incident, as evidenced by the statement of the injured auto driver in the First Information Report. They highlight the lack of expert evidence to support the claim of injury and challenge the airbag deployment assessment, emphasizing that such deployment hinges on specific parameters, including impact severity and velocity, as outlined in the owner's manual and safety booklet. The counsel asserts that the vehicle's damage does not dictate airbag deployment, as the structure is designed to absorb impact energy. They criticize the commission for basing its decision on photographs alone, disregarding the required criteria for airbag deployment assessment. Moreover, they argue that the alleged collision did not warrant airbag deployment, as it was a side collision with no resulting injuries. The counsel challenges a statement from the deposition of a witness, asserting that it does not meet the criteria for admission as evidence.

2. The counsel further asserted that the witness reaffirms the collision as a side impact, with a potential subsequent frontal undertone, consistent with previous statements and corroborated by exhibit B-12. Moreover, the airbag functioned properly post-accident, as evidenced by the absence of impact recorded by the ECU and undamaged sensors, despite the complainant not wearing a seatbelt. The reliance on newspaper reports to assert airbag defects is unfounded, given their irrelevance and lack of evidentiary value. Additionally, the endorsement of a manufacturing defect based on a clutch-plate issue disregards warranty coverage, ignores the cause of the burn, and overlooks the car's low mileage and post-repair agreement. As the complainant was a user, not the owner, any entitled damages should not include a refund of the purchase cost, exceeding the scope of Section 14 of the Act.

3. The counsel for Petitioner/OP-1 relied on following judgements:-

1. Toyota Kirloskar Motors P Ltd v. Tirath Singh Oberoi, 2016 SCC OnLine NCDRC 2620, this Commission observed:

“9. A perusal of the version given by the complainant in the complaint itself shows that the offending Swaraj Mazda Truck came from the right hand side and not from the front side. It is clear, therefore, that the collision in question could not be a head-on collision, rather it could be described as an oblique collision or angular collision. As per the photographs of the damaged vehicle appended with the complaint and the facts brought on record, it is clear that the impact mainly took place on the right frontal side only. The version given by the petitioner, therefore, that it was not a case of simple head-on collision appears sound. It is to be examined, however, whether in the event of such a collision, the Air bags could have deployed or not.

10. It has been stated in the safety book that “Air bags will deploy in severe front collision from the oblique right or left when the collision poses a serious threat of injury to occupants.” The State Commission have concluded that the censor placed on the right side of the engine did not transmit message to the SRS Air bag system; so it did not deploy and on the other hand, the censor was broken. The State Commission as well as the District Forum concluded that the Air bags failed to open due to wrong position of the censor, which in itself is a manufacturing defect in the said vehicle.

11. This conclusion of the State Commission, however, does not get substantiated from any expert evidence on record. The petitioners are a leading manufacturer of the vehicles in question. It shall not be fair to conclude, therefore, that there was any manufacturing defect in this particular vehicle, in the absence of any cogent, expert evidence that the positioning of the censor was incorrect. We tend to agree with the contention raised by the petitioner that the surveyor who was deputed to assess the loss, could not be stated to be an automobile expert in any manner. Although, the said surveyor has stated in the concluding para of his report that there was a manufacturing fault in the vehicle due to improper positioning of the censor, it is not understood how the surveyor could give such a finding.”

2. Laxmi Raj Shetty v. State of Tamil Nadu, (1988) 3 SCC 319, the Hon’ble Supreme Court observed:

“We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein.”

3. Maruti Udyog Ltd. vs. Casino Dias & Anr., IV (2009) CPJ 144 (NC)

“29. District Forum has rightly directed the petitioner and Respondent no.2 to rectify the defects. The number of years that in this case has taken to reach to this end cannot be held against the petitioner, as it is not their fault, specially when the Respondent no.1 has been adamant throughout with a predetermined mind to get replacement of the vehicle. Consumers cannot throw their weight around and be adamant to decide on their own that there is manufacturing defect in the vehicle without any supporting evidence or justification.”

4. Brijesh Saxena v. SKODA Auto A.S., 2014 SCC OnLine NCDRC 926

“14. The complainants have produced information from the website saying that in many cases car manufacturers decided to recall the vehicles due to defective air bags. However, from the material on record, it has not been proved that the air bags in the vehicle in question were defective and the vehicle suffered from any manufacturing defect. Even the complainants themselves stated in one para of the complaint that the air bags did not inflate but in a subsequent para, they stated that the air bags had busted. Had the air bags in the car not functioned at all, it could be imagined that there was some defect in the vehicle but in the present case, the air bags mechanism did function as per the photographs made available by the complainants themselves.”

5. Richard Raja Singh (Dr.) v. Ford Motor Company Ltd., 2014 SCC OnLine NCDRC 631

“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.”

6. Sita Ram Bhau Patil v. Ramchandra Nago Patil, (1977) 2 SCC 49

“17. If admission is proved and if it is thereafter to be used against the party who has made it the question comes within the provisions of Section 145 of the Evidence Act. The provisions in the Indian Evidence Act that “admission is not conclusive proof” are to be considered in regard to two features of evidence. First, what weight is to be attached to an admission? In order to attach weight it has to be found out whether the admission is clear, unambiguous and is a relevant piece of evidence. Second, even if the admission is proved in accordance with the provisions of the Evidence Act and if it is to be used against the party who has made it, “it is sound that if a witness is under cross-examination on oath, he should be given an opportunity, if the documents are to be used against him, to tender his explanation and to clear up the point of ambiguity or dispute. This is a general salutary and intelligible rule….. Therefore, a mere proof of admission, after the person whose admission it is alleged to be has concluded his evidence, will be of no avail and cannot be utilised against him.”

7. Rajinder Pershad v. Darshana Devi, (2001) 7 SCC 69

“4. …… There is an age-old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you cannot impeach his credit…….”

4. The Respondent-1/Complainant asserts that all the contentions and grounds raised by the Petitioner/OP-1 in this Revision Petition mirror those presented in both the District Forum and the State Forum. Both forums, after thorough assessment and evaluation of material facts, conclusive evidence, technical expert witness examinations, and reports, concurred that the Toyota Innova vehicle sold to the complainant by the OP-1 was inherently defective. Consequently, both forums directed the OP-1 to either replace the defective vehicle with a new one or refund the total amount paid. The Complainant contends that the OP-1's submissions are deliberate misrepresentations of facts and evidence aimed at evading responsibility for the defective vehicle.

5. The final orders and judgments issued by both the District and State Forums extensively discussed the material facts and evidence, conclusively establishing the defective nature of the Toyota Innova vehicle. The Complainant further argued that the OP-1, through this Revision Petition, seeks a revaluation and reassessment of the evidence, effectively urging this Commission to substitute its findings on facts, which is impermissible in the context of revisional jurisdiction. The Complainant emphasized that it is a settled legal principle that in exercising its revisional jurisdiction, this Commission cannot re-examine evidence and substitute its own conclusions for those of the lower forums.

6. The Respondent-1/Complainant relied on following judgements:-

1. Rubi (Chandra) Dutta v. United India Insurance Co. Ltd., (2011) 11 SCC 269
2. Lourdes Society Snehanjali Girls Hostel v. H&R Johnson (India) Ltd., (2016) 8 SCC 286

3. T. RamalingeswaraRao (dead) through LRs and Ors. Vs. N. Madhavarao and Ors., Civil Appeal No. 3408 of 2019, decided on 05.04.2019.

7. The counsel for respondent-2/OP-2 (Toyota car dealer) argued that OP-2 cannot be held liable for the accident as they merely acted as the seller of the vehicle to complainant. As a dealer and not the manufacturer, they are not directly responsible for any alleged defects or malfunctions in the car. Complainant's claim that the accident occurred due to the failure of the SRS airbags to deploy in a side collision is unsubstantiated. The owner's manual and safety booklet clearly outline the intended function of the airbags in response to severe frontal impacts, not side collisions. Moreover, any damage incurred to the vehicle, such as the burning of the clutch disc, is attributable to Complainant's misuse of the vehicle's clutch system, as duly explained and repaired by OP-2 on a chargeable basis. The absence of any mechanical fault found in the car post-accident further supports OP-2's position that the cause of the accident was solely the negligence of the driver, and not due to any defect in the vehicle.

8. Furthermore, OP-2's reputation and goodwill have been unduly harmed by the actions of complainant, who seeks to shift blame and avoid responsibility for their own negligence. Compensation should be sought to remedy the damage caused to OP-2’s business interests. The counsel further asserted that the failure of the forum to consider crucial evidence, such as the parameters for airbag deployment and the nature of the collision, undermines the fairness of the proceedings. A thorough review of all relevant evidence is necessary to reach a just decision in this matter.

9.  The counsel for Respondent-3/OP-3 in the written arguments submitted that the District Forum dismissed the complaint against OP-3, stating there was no connection between the complainant and OP-3. Complainant approached OP-3 with a damaged Innova car for repairs, and OP-3 accepted the vehicle and provided an estimate, marked as Exhibit B6 with the District Consumer Forum, Kurnool. As the Innova car had insurance coverage from TATA AIG Insurance, OP-3 awaited clearance from the insurance company to proceed with repair works, as evident from Exhibit B7, the survey report. OP-3 neither repaired nor serviced the vehicle but only provided an estimate to Complainant. The District Forum rightly dismissed the complaint against OP-3 as there is neither any relation nor any consumer dispute between Complainant and OP-3. OP-3 only provided an estimate to Complainant, thus there is no deficiency of service or unfair trade practice on the part of OP-3. Complainant did not present any evidence against OP-3 to claim relief for unfair trade practices or deficiency of service. In the absence of any deficiency of service or unfair trade practice, the appeal against OP-3 is liable to be dismissed.

9.       In this case there are concurrent findings of both the fora below. The contentions raised by the OP-1/ Petitioner before this Commission in the instant RP with respect to the collision not being a frontal collision, but a side one and the circumstances under which the airbags will deploy etc., as detailed in preceding paras were raised before the District Forum as well as State Commission. Both the fora duly addressed these contentions in the light of evidence placed below them. It is the case of OP-1/Petitioner that SRS (Supplemental Restraint System) front airbags are designed to provide further protection for the driver and front passenger in addition to the primary safety protection provided by the seat belts. The SRS airbags are designed to activate in response to a severe frontal impact, work with the seat belts to help reduce injury by inflating. The SRS front airbags are designed to deploy in severe collisions where the magnitude and duration of the forward deceleration of the vehicle exceeds the designed threshold level. SRS front airbags will deploy in the event of an impact that exceeds the set threshold level (the level corresponding to a 20 to 30 km/hr frontal collision with a fixed wall that does not move or deform). However, this threshold velocity will be considerably higher if the vehicle strikes an object, such as a parked vehicle or a fixed pole, which can move or deform on impact, or if the vehicle is involved in an underride collision. According to OP-1/Petitioner, the SRS front airbags are generally not designed to inflate if the vehicle is involved in a side or rear collision or if it rolls over, or if it is involved in a low speed frontal collision. The OP-1/ Petitioner has contended that in the instant case, the impact was not frontal but a side impact collision, as a result the airbags have not been deployed. Since the impugned vehicle has hit the moving object, the requisite threshold velocity to deploy airbags may not have been achieved, hence the airbags have not deployed.

10.  After considering the evidence adduced before it, the District Forum, allowing the complaint partially, directed OP-1/Petitioner and OP-2 to replace the vehicle to complainant/respondent-1 or return the amount of Rs. 15,09,415/- with interest @ 9% from the date of accident 16.08.2011 along with compensation of Rs.10,000/- and litigation cost of Rs.5000/-. State Commission, in appeal, after re-evaluating the entire evidence, agreed with the contentions of the complainant/respondent-1 that airbags were not deployed in the vehicle though it was a major accident and frontal collision and this non-deployment of airbags in the car was due to mechanical defect of the vehicle, and hence agreed with the findings of District Forum and dismissed the appeal. In this regard, extract of relevant paras of order of State Commission is reproduced below:-

“11. The opposite parties filed user manual and safety book to explain functioning of the SRS system and the circumstances under which it is activated. By filing the above said literature, the opposite parties tried to impress upon a point that the Airbags are not deployed in all type of accidents and there are certain conditions for deployment of Airbags. In safety book at page 3, the conditions for Airbags deployment are narrated which are re-produced hereunder:

"Airbags are meant to function in service front collisions

(Airbag deployment speed depends on the vehicle model. Please refer to your vehicle's instruction manual).

Moment of impact in a 20-30 km/h front collision with a solid, immobile concrete wall.

Moment of impact in a 30-35 km/h front collision with a solid, immobile concrete pillar.

Airbags will deploy in severe front collisions from the oblique right or left, when the collision poses a serious threat of injury to occupants

Airbags inflate extremely rapidly, sometimes resulting in bruising or abrasions of the occupant from contact."

12. It is also mentioned in the same book at page 4 about the other situations about the deployment of the Airbags. It is clearly mentioned that the Airbags may not deploy more quickly and vehicles are damaged more severely when vehicle collides with a solid immobile object and Airbags in stationary vehicle may not deploy even when struck head-on by a vehicle of roughly equal weight travelling 50-60 km/h.

13. However, we are not concerned with other conditions. But the present controversy is whether the collision is a front collision with severe impact or the impact of the collision was on the extreme left hand side of the vehicle when the collision was on one side of the vehicle but not front collision, it is an accepted principle as per the literature that the Airbags would not be deployed.

14. Now, we turn to the evidence placed by both sides on this material fact. There are two important witnesses, one is examined on behalf of the complainant by name Prashant Kumar, P.W.1 and another V. Karthikeyan is examined as R.W.1, on behalf of the opposite parties. Prashant Kumar studied M.Tech. Automotive Engineering having five years experience in the field.  The evidence of this witness is that he was there at the time of inspection of the damaged vehicle along with the complainant. While explaining the technical aspects of the matter, he stated that there is evidence that the damaged vehicle is frontal collision and the Airbags should have been deployed but, did not happen in this case which is a manufacturing defect of the vehicle. Though this witness was grilled, nothing has been elicited to demolish the aforesaid assertion made by him in the evidence. Further, it is elicited that in case of side collision, the SRS Airbags will not be deployed.

15. Now, we consider the evidence of R.W.1, V. Karthkeyan. This witness is a Graduate in Mechanical Engineering working for the opposite parties. According to this witness, he inspected the vehicle in question, in September, 2011, while the accident took place on 16.08.2011. He stated that the vehicle in question involved.in a side collision. Therefore, the SRS Airbags will not deploy. In the cross-examination, he admitted that initially, it is a side collision, but, later, it might have turned into frontal collision. He has also admitted that he did not observe the opposite vehicle involved in the accident. He clarified that the Airbags are provided for the safety of the inmates have not inflated in the vehicle in question.

16. Thus, from the evidence of P.W.1 and R.W.1, who are the technical persons, collision is a frontal collision and the SRS Airbags have not inflated in the vehicle at the time of the accident. As per the literature and the admitted case of the opposite parties, the Airbags intend to function in severe front collisions. In order to appreciate the nature and severity of the accident, we have perused the sworn affidavit of the complainant in which he has affirmed that the front portion of his vehicle was badly damaged, this is a major accident and almost all the inmates of the vehicle been sustained severe injuries. But the Airbags were not opened A perusal of Ex.A-4 photographs would clinchingly show that it is a major accident, that there is a frontal collision of the vehicle and the vehicle badly damaged. This fact is further fortified by Ex.B-12 first three photographs filed on behalf of the opposite parties.

17. Ex.A-5 is a crucial document, it is the FIR presented by the driver of the opposite auto. In this document, it is clearly mentioned that the driver of the car was driving the car with terrific speed from Kurnool side and dashed against his auto from front side and the auto turned turtle. It is also mentioned that the auto driver and other inmates of the auto and the car sustained injuries. This document itself is sufficient to prove that the vehicle was driven with terrific speed and there is a frontal collision at the time of the accident. The statement in the complaint and in the evidence of the complainant that within a short time after the vehicle was purchased, when the complainant was travelling in Bangalore city, heavy smoke came out from the clutch plates and the clutch plates of the vehicle burnt on the road. The opposite parties tried to explain that the clutch plates were burnt due to improper maintenance of fluid levels or negligent driving. This theory of improper maintenance can be accepted in case of old vehicles but it is impossible either to burn clutch plates or emanating smoke in a new high end and high quality of Innova vehicle like the present vehicle. Therefore, it is quite obvious that there is inherent defect in the vehicle

18. It is the specific stand taken by the opposite parties only one vehicle will be put for testing of working of Airbags etc. In a batch before the vehicles are released for sale. It is not the case of the opposite parties that the vehicle in question was tested before it was sent to the showroom for sale. By placing the aforesaid material and evidence, the complainant has established that there is a mechanical defect in the vehicle. Only due to the said mechanical defect, Airbags were not deployed at the time of the accident.

19. We find probable evidence in the cross-examination of R.W.1. which supports the claim of the complainant. R.W.1 V. Karthikeyan, in his evidence, admitted that Toyota Company recalled vehicles for faulty Airbags and wipers throughout the world, which was reported in Hindu Daily on 31.03.2013. The complainant produced Photostat copy of the said Hindu Daily, wherein it is stated that Toyota to recall 45,000 units of Innova in India. The evidence of R.W.1 coupled with the newspaper clipping would clinchingly establish that the recalling of Toyota vehicle is due to defect in deployment of Airbags only in the event of any accident.”

11.  District Forum in its order duly addressed issue of territorial jurisdiction and the competency of complainant to file the complaint, which was raised by OP-3. We are in agreement of findings of District Forum on these points. As regards main issues pertaining to manufacturing defect in the vehicle in question and deficiency in service on the part of OPs, extract of relevant paras of order of District Forum is reproduced below:-

“Here we have to look into the model of the vehicle at the time when it was purchased. Admittedly, it was high end model VX- Diesel (7S). The vehicle was purchased on 11.03.2011. the alleged burning of clutch plates and emanating of Smoke had taken place in the first week of August, 2011. It is not possible either to burn the clutch plates or emanating smoke can take place in the high end and high quality of Innova vehicle due to improper maintenance of fluid levels or negligent driving unless and until there is some inherent defect in it.

xxxxxx

In the instant case when the Innova met with an accident and dashed to an auto which was crossing road, all the inmates of the auto suffered with severe injuries. Extensive damage caused to the Innova vehicle, though it is heavy vehicle. Ex.A4 clearly shows the entire front portion of the vehicle suffered with heavy damage and front mirror broken into a piece. Non functioning air bag system in the vehicle came to the knowledge of the complainant only when it met with accident on 16.08.2011 at 3.00 P.M. by hitting to a passenger auto and when air bags were not deployed. There was no scope for the complainant to know about the said defect prior to the accident as there was no demonstration of its functioning by the manufacturer or dealer as the case may be.

Sri.V.Karthikeyan who was examined as RW1 on behalf of opposite parties clearly admitted in his cross examination, it is a fact that the Toyota Company recalled vehicles for faulty air bags and wipers throughout the world which is reported in News Paper Hindu dated 31.11.2013, but not in India. The complainant produced the Xerox copy of the Hindu dated 11.11.2014, where in it is stated Toyota to recall 45,000 units in Innova in India. The admission of RW1, that recall of the Innova Vehicles by the company and paper cutting in 11.11.2014 which shows Toyota Kirloskar Motor to recall nearly 45,000 units of its multi-utility vehicle Innova in India to rectify defect in steering column. The said recall is relating to defect in deployment of air bags only in the event of any accident. The contention of complainant is that the vehicle supplied to the complainant by opposite party No.2 is suffering with manufacturing defect, air bags not deployed when the vehicle met with severe accident, when it had collision to the opposite vehicle with high speed and burning of clutch plates within short span of 5 months from the date of its purchase. The contention of opposite party because of non maintenance fluid levels properly may be cause for burning of clutch plates is not tenable, as the vehicle is high end model and purchase had taken place only 5 months prior to that incident. Another defense of opposite parties is that the air bags did not deploy when the vehicle met with an accident because the collision had taken place on left side of the vehicle that too to a moving object is also not sustainable in view admission of RW1 that the vehicle met with major accident and extensive damage which occurred to the Innova vehicle on its entire front portion and also the estimation prepared by opposite party No.3 by mentioning all minute details of repairs that required to the accident vehicle to make it road worthy.”

12.  During the hearing the OP-1/Petitioner has drawn our attention to relevant paras of ‘owner’s manual’ pertaining to safety/airbags which are summarized as follows:-

“The SRS system consists of various components including seat belt pre-tensioners, seat belts with load limiters, driver and front passenger airbags, SRS ECU (Electronic Control Unit), collision sensors, SRS wiring harness, and SRS warning lamp. The SRS system is activated when the ignition switch is in the "ON" position. Airbags are designed to inflate during collisions detected by collision sensors. The inflation provides a cushion to occupants, limiting movement and reducing the risk of injury. Airbags inflate and deflate rapidly, almost instantaneously, and with considerable force. The inflation process may generate smoke-like particles, which are normal and non-toxic. After inflation, airbags gradually deflate. It is advised not to drive the vehicle after airbags have been deployed. If skin, eye, nose, or throat irritation occurs due to the deployment, appropriate measures such as rinsing with water or moving to fresh air are recommended. Front airbags should not deploy in minor frontal collisions, side collisions, rear collisions, or rollover collisions, as seat belts and other safety features provide sufficient protection in these scenarios. Airbags may deploy in situations where visible vehicle damage is minor or not readily visible, depending on the severity of the collision. On the other hand, visible vehicle damage alone may not always indicate the need for airbag deployment, as seat belts may provide adequate protection. Seat belts, when worn, offer significant occupant protection, and their use is emphasized even in situations where airbag deployment does not occur.

13.  A brief write up on airbag was also presented during the hearing, contents of which are summarized as follows:-

“Airbags deploy in frontal collisions within a specific angle range from the vehicle's centerline, typically within 30 degrees. This deployment is triggered by frontal impact sensors, with the purpose of preventing injury to the occupants' head, chest, and torso. The primary purpose of the frontal airbag is to prevent occupants from hitting the steering wheel or dashboard in the event of a collision. It operates based on the principle of inertia, working in conjunction with seat belts to restrain occupants. Airbag deployment is contingent upon the vehicle meeting certain deceleration thresholds, typically equivalent to hitting a solid wall at a minimum speed, as specified in the vehicle's manual. Deployment is not solely determined by visible damage to the vehicle but rather by the location and severity of the collision. Airbags do not deploy at speeds below the threshold velocity because the vehicle's structure is designed to absorb impacts below this threshold, thereby ensuring passenger safety. Front airbags do not deploy in side impacts, as occupants tend to move sideways rather than forward. Inappropriate deployment can pose risks such as burn injuries, vision impairment, and loss of vehicle control.”

14.   In Hyundai Motor India Ltd. v. Shailendra Bhatnagar, 2022 SCC OnLine SC 483, the Hon’ble Supreme Court, while dealing with similar issue relating to non-deployment of airbags at the time of collision, observed:-

“7. ….Vehicles are goods within the meaning of Section 2(7) of The Sale of Goods Act, 1930 and they carry implied conditions as to their fitness. That is a statutory mandate and that mandate also operates in respect of goods, whose defect is subject of proceeding in a consumer complaint under the Consumer Protection Act, 1986…….

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10. …We would like to add here that ordinarily a consumer while purchasing a vehicle with airbags would assume that the same would be deployed whenever there is a collision from the front portion of the vehicle (in respect of front airbags)…… A consumer is not meant to be an expert in physics calculating the impact of a collision on the theories based on velocity and force…….

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13. The damages awarded against the appellant may have gone beyond the actual loss suffered by the respondent and may not represent the actual loss suffered by him in monetary terms. But the provision of Section 14 of the 1986 Act permits awarding punitive damages. Such damages, in our view, can be awarded in the event the defect is found to have the potential to cause serious injury or major loss to the consumer, particularly in respect of safety features of a vehicle. For instance, defective safety feature in a vehicle has to be distinguished from a dysfunctional “courtesy light”. The manufacturer should be under strict and absolute liability in respect of the latter. Compensation in the form of punitive damages ought to have a deterrent effect……

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14. …We are dealing with a case where in a collision, the airbags did not deploy. The complainant, driving the vehicle, suffered substantial injuries as a result thereof. The impact of the collision was such that it would have been reasonable for the respondent to assume that there would have been deployment of the airbags. The safety description of the goods fell short of its expected quality. The content of the owners' manual does not carry any material from which the owner of a vehicle could be alerted that in a collision of this nature, the airbags would not deploy. Purchase decision of the respondent-complainant was largely made on the basis of representation of the safety features of the vehicle. The failure to provide an airbag system which would meet the safety standards as perceived by a car-buyer of reasonable prudence, in our view, should be subject to punitive damages which can have deterrent effect……”

15.  As was held by Hon’ble Supreme Court in Rubi (Chandra) Dutta v. United India Insurance Co. Ltd., (2011) 11 SCC 269

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

16. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that

“the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. "

17. In The Hon’ble Supreme Court in Rajiv Shukla vs Gold Rush Sales And Services Ltd. Civil Appeal No. 5928 of 2022, decided on 08.09.2022, held that:-

“13. As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction.

14. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21(b) of the Consumer Protection Act.”

18.  In Lourdes Society Snehanjali Girls Hostel v. H&R Johnson (India) Ltd., (2016) 8 SCC 286

“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons…..”

19. In T. RamalingeswaraRao (dead) through LRs and Ors. Vs. N. Madhavarao and Ors., Civil Appeal No. 3408 of 2019, decided on 05.04.2019, the Hon’ble Supreme Court has held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High Court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be wholly perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

20.  We are in agreement with the findings of District Forum and State Commission regarding the collision in question being a frontal one, with an impact velocity in which airbags ought to have deployed. There is no reason to disbelieve the evidence of PW-1 in this regard, who is an expert in the field. Moreover, the evidence of RW-1 in cross examination also supports the version/opinion given by PW-1. This coupled with evidence of RW-1 with respect to recall of vehicles by Toyota company for faulty airbags and wipers in the many parts of the world, which have been reported in the newspaper also, lends credence to the case of complainant/respondent that vehicle in question had a manufacturing defect due to which the airbags did not deploy despite the collision being frontal one and of impact velocity in which it ought to have deployed, coupled with problem relating to burning of clutch plates or emanating smoke about 10 days before the date of accident. We are unable to accept the contentions of OP-1/Petitioner that collision in the state case was on the left side, and not the frontal one. Both the District Forum and State Commission have correctly and appropriately appreciated the evidence placed before them. Contention of OP-1/Petitioner that State Commission has based its findings solely on photographs is not factually correct. Both District Forum and State Commission have correctly interpreted the evidence of RW-1 in cross examination. District Forum/State Commission have not relied upon newspaper reports as any main piece of evidence, rather just quoted it as supplemental evidence, to be taken note of in conjunction with evidence of RW-1. Contentions of OP-1/Petitioner about lack of expert evidence are not valid.

21.  The facts of the case relied upon by the petitioner/OP-1 (Toyota Kirloskar Motors P Ltd v. Tirath Singh Oberoi) (Supra) are distinguishable as in this case the NCDRC came to a finding that collision was not head on collision, rather it could be described as oblique collision or angular collision. But in the instant case, both the fora below, keeping in view the evidence before it, have concluded that it was a case of frontal collision; and we are in agreement with these findings. Similarly the other case laws relied upon by the OP-1/Petitioner are not directly connected with the facts of instant case.

22.  In view of the foregoing we find no illegality or material irregularity or jurisdictional error in the order of State Commission.  We find no reason to interfere with the well-reasoned orders of District Forum and State Commission. Hence, the order of the State Commission is upheld. Accordingly the RP is dismissed.  As District Forum has held both the OP-1/Petitioner and OP-2 liable, they shall implement the order of the District Forum within 30 days from today. They are liable jointly and severely. On replacement of the vehicle with a new one or refund of the amount as per order of the District Forum; the complainant/respondent, will hand over the existing vehicle to the OP-1/Petitioner and OP-2.

23.    It is to be noted that District Forum has held both OP-1 (petitioner herein) and OP-2 (Respondent-2 herein) liable, jointly and severely. Both OP-1 and OP-2 filed appeal before the State Commission, which was dismissed vide impugned order 02.07.2019. The present RP has been filed by OP-1 only. No RP, challenging the impugned order dated 02.07.2019 has been filed by OP-2. Hence, as regards OP-2, order of District Forum, read with State Commission order has already attained finality. 

24.     The pending IAs in the case, if any, also stand disposed off.