BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.107 of 2015
Date of Instt. 17.03.2015
Date of Decision :28.10.2015
Ashok Kumar son of Gian Chand R/o VPO Sikander Pur, Jalandhar.
..........Complainant Versus
1. Mahindra India & World Headquarters, Mahindra Towers, GM Bhosale Marg, Mumbai-400018 through its Managing Director/ Principal Officer/Manager.
2. Makkar Motors Private Limited, Jalandhar Phagwara Highway, Near Paragpur Octroi Post, GT Road, Jalandhar through its Manager/ Principal Officer.
.........Opposite parties.
Complaint Under the Consumer Protection Act.
Before: S. Jaspal Singh Bhatia (President)
Ms. Jyotsna Thatai (Member)
Sh.Parminder Sharma (Member)
Present: Sh.BP Singh Singh Adv., counsel for complainant.
Sh.Chandandeep Singh Adv., counsel for OP No.1.
Sh.Rakesh Dhir Adv., counsel for OP No.2.
Order
J.S.Bhatia (President)
1. The complainant has filed the present complaint under the Consumer Protection Act, against the opposite parties on the averments that the complainant had wanted an high end car, with full safety with air bags in car. When the complainant, went to office of opposite party No.2, the opposite party No.2 had assured that the Mahindra Verito D6 was very safe and will ensure full safety to the person sitting in the car. And further assured that the airbags will deploy immediately on the impact in case of accident, saving the driver from injuries. After only such assurance, the complainant bought Mahindra Verito D6 car, now bearing registration No.PB08CD6786. The complainant had bought top model in Mahindra Verito from opposite party No.2, because he wanted to ensure his safety and of his family. Initially there was no problem with the car. But on fateful day of 23.5.2014 at 2.10 PM, the complainant was driving in above mentioned car and met with an accident with tractor-trolley at Village Sohal Khurd, Talwandi Madho Road, Near Sultanpur Lodhi. The said accident happened due to negligence and rash driving of the driver of the tractor-trolley. The driver of the tractor-trolley without looking back turned the vehicle and the car of the complainant struck the trolley at probable speed of 60KM/hour. Both of them were wearing seat belts, but due to the impact, the driver and the person sitting besides him received few injuries. Due to the sudden impact, the driver got breathing problem because of sudden impact on chest due to seat belt. The person namely Gurcharan Singh, got one rib cracked, due to impact of seat belt on the mobile phone kept in the pocket of the shirt. But, to the pure shock to the complainant, the airbags did not deploy. The car was sent for repair with opposite party No.2, immediately and complaint was also lodged with the opposite party No.2 that the airbag did not deploy, at the time of giving car for repair. The car was completely destroyed from the front. The complainant feels cheated by the car provided by opposite parties. The complainant feels that there is no airbag in the car. And that opposite parties have cheated the complainant of his valuable money and the trust in the company. At the time when opposite party No.2 allured the complainant to buy the vehicle, the opposite party No.2 had assured that the car contains air bags and the airbags would deploy on impact of accident when the speed of the car will be above 30KM/hour. But, the airbag in the car did not deploy at all, which could only mean 2 things: either the car had no airbags in it or the car had manufacturing defect in it. In both cases, there is serious lapse on the part of both the opposite parties. The impact was so severe, it can be well imagined that the front part of the car was severely damaged, and cost of Rs.1,00,000/- was incurred on repair. The cost incurred on first aid of persons and on treatment of broken ribcage is more than Rs.50,000/-. Even on such damage due to high impact the airbags did not deploy. On such like averments, the complainant has prayed for directing the opposite parties to give him a new car of the same make or pay him damages of Rs.7 Lacs alongwith compensation and litigation expenses.
2. Upon notice, opposite parties appeared and filed their written replies. In its written reply, opposite party No.1, inter-alia, pleaded that in this case, it has been alleged that airbag did not deploy at the time of accident. The case has been filed merely on apprehension that airbag is defective. As a matter of fact that to prove non deployment of the airbag is a manufacturing defect in the vehicle as alleged by complainant, one need to give due regard to the various circumstances under which the airbags operates, what is to be seen is that, whether the frontal impact was so severe and of such intensity that airbag would have been deployed in such a situation. In this case both were missing. The impact was not completely frontal and intensity of accident was not that severe to trigger the deployment of airbag. There is no expert opinion regarding the alleged manufacturing defect. It is submitted that the complaint of the complainant is not within limitation and it is hopelessly time barred. The complainant is alleging manufacturing defect in the vehicle, the limitation starts from the purchase of the vehicle which was purchased in July 2012, however, the complaint was filed in March, 2015 that is almost after three years of the purchase of the vehicle. Further it is submitted that the car has safety features. However it is submitted that so far the question of airbag is concerned there is only one airbag in the car on the driver side. This has been informed to the complainant, as also, it is indicated in the car itself that only driver side has the airbag and on the co-driver side bag is not there. Further it is submitted that every person purchases the vehicle with his own wisdom and requirement. The car has safety features like ABS braking, driver side airbag, child lock, front disc brake, anti theft engine immobiliser etc. Further it is submitted that deployment of an airbag depends upon many factors. This also finds mention in the owners manual of the vehicle that in a small accident or in which the impact is not severe the airbag do not inflate. It has clearly been mentioned under the heading airbag inflation/deployment that if an impact results in a forward deceleration beyond the design threshold level, the system triggers the airbag inflated. Also it is clearly mentioned in the owner's manual that airbag will inflate/deploy only when the impact is sufficiently severe. It is not in dispute that accident had occurred and due to the accident, the driver must have applied brakes then also the vehicle hit the other vehicle. Due to sudden braking and sudden stoppage, usually all the passengers tend to move in forward direction due to inertia. In this case, admittedly the phone was in shirt's pocket and due to the forward moment the mobile must have caused injury(if any). Moreover, there is no airbag provided by the company at co-driver side of D6 model of Verito. Moreover, it would be pertinent to mention that in this case, after the accident, the passenger compartment is fully intact and there was no damage inside the passenger compartment. This is clearly indicative of the fact that impact of the accident is not severe, moreover it is not frontal. It denied other material averments of the complainant.
3. In its separate written reply, opposite party No.2 pleaded that the complainant has intentionally and deliberately concealed the fact that the vehicle in question has earlier also met with accident and got repaired on 15.11.2012 and on other dates which is against the principles of warranties issued by the company. It is further incorrect that the opposite party No.2 assured that the airbags will deploy immediately on the impact in case of accident, whereas the deployment of the airbags are dependent on the impact of the accident which is clearly mentioned in the manual given by the company and it varies from case to case. It is further incorrect that opposite party No.2 has allured the complainant to buy the vehicle and have ever assured that the car contains airbags and the airbags would deploy on impact of accident when the speed of car will above 30 KM per hour. It is the complainant who has concocted story only to lodge a false claim that the car was at probable speed of 60 KM per hour. The documents as well as the photographs of the repair clearly proves that the car was not at the speed when the accident has occurred and impact of the accident was of that, the airbags would be deployed.
4. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavits Ex.CW1/A and Ex.CW2/A alongwith copies of documents Ex.C1 to Ex.C6 and closed evidence.
5. On the other hand, learned counsel for the opposite party No.1 has tendered affidavit Ex.RA alongwith documents Ex.R1/1 to Ex.R1/3 and closed evidence. Further learned counsel for opposite party No.2 has tendered affidavit Ex.OP2/A alongwith documents Ex.OP2/1 to Ex.OP2/6 and closed evidence.
6. We have carefully gone through the record and also heard the learned counsels for the parties.
7. The facts involved in the present complaint are not much disputed. It is not disputed that complainant has purchased the car in question from opposite party No.2. So far as objection of opposite party No.1 regarding limitation is concerned, the same is not tenable. The period of limitation starts when cause of action arises and in this case the cause of action arose when the accident took place and the airbag did not deploy. So main dispute between the parties is regarding non deployment of airbag at the time of accident. Counsel for the complainant contended that non deployment of airbag was due to manufacturing defect in the car. He further contended that the car was at sufficient high speed and impact at the time of accident was severe and the airbag should have inflated. On the other hand, it has been contended by learned counsels for the opposite parties that in the car purchased by the complainant, airbag is only on the driver side and its deployment depends upon the impact. They further contended that airbag will only get deployed when impact is sufficiently severe. They further contended that in the brochure it is provided that in case of airbags malfunction lamp illuminates when the ignition is ON and it turns OFF after about two seconds as self check confirming normal operations of airbag system and malfunction lamp. They further contended that if an impact results in a forward deceleration beyond the designed threshold level, the system triggers the airbag inflators. The counsels for the opposite parties further contended that there is no manufacturing defect in the car and complainant has filed the frivolous complaint. We have carefully considered the contentions advanced by learned counsels for both the parties. There is no reliable evidence on record to come to the conclusion that at the time of accident the impact was quite severe as result of which the airbag on the driver side should have deployed. Complainant has not examined any expert witness to prove that the non deployment of airbag on driver side was due to any manufacturing defect. In para 3 of the complaint, the complainant has pleaded that due to the impact, the driver and the person sitting besides him received few injuries. This fact tends to corroborate the version of the opposite parties that the impact was not so severe so as to result in deployment of the airbag. The complainant has not produced on record any evidence regarding the few injuries allegedly suffered by them. According to the own version of the complainant, the person namely Gurcharan Singh, got 1 rib cracked, due to impact of seat belt on the mobile phone kept in the pocket of the shirt. So this injury was due to impact of the mobile phone in the pocket of shirt of the co-passenger. Ex.OP1 is brochure of the car and in it regarding driver side airbag, it is mentioned as under:-
“The SRP is designed to deploy the airbag only when an impact is sufficiently severe.
Notice:-
An airbag is not designed to deploy in every type of crash. Depending on the type of accident or impact, the driver airbag is deployed.
Airbag System Malfunction Lamp:-
Airbags do not require any regular maintenance of service. The airbag system malfunction lamp illuminates when the ignition is ON, and it turns OFF after about two seconds as self check confirming normal operations of airbag system and malfunction lamp.
Airbag Inflation/Deployment:-
The airbag sensors constantly monitor the forward deceleration of the vehicle, if an impact results in a forward deceleration beyond the designed threshold level, the system triggers the airbag inflators. The declaration threshold level is low when the vehicle impacts straight into a fixed barrier that does not move or deform. This threshold declaration will be considerably higher if the vehicle strikes an object, such as a parked vehicle or sign pole, which can move or deform on impact, or if the vehicle is involved in an underside collision. Once the declaration level is met, a chemical reaction is triggered in the inflators which quickly fills the airbags with non-toxic gas.
Frontal Offset impact;-
Frontal offset impact to the vehicle may not provide the declaration force necessary for airbags deployment. In an angled collision, the force of impact may direct the occupants in a direction where the airbag would not be able to provide any additional benefit, and thus the sensors may not deploy the airbag”.
8. So from the above instructions given in the brochure of the car it is clear that the deployment of airbags depends upon the severity of the impact and the manner in which accident has taken place and it does not deploy in every type of accident. So complainant has not led any cogent and reliable evidence to prove that non deployment of airbag was due to any manufacturing defect in the car and not due to less severity of the impact.
9. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.
Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia
28.10.2015 Member Member President
