BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.322 of 2015
Date of Instt. 28.07.2015
Date of Decision: 23.01.2019
Hridayesh Singh Chauhan aged 34 years S/o Sh. Satyabir Singh Chauhan, resident of Officers Mess, MIG ALLEY-11, Air Force Station, Adampur, District Jalandhar Mobile No.75893-03637.
..........Complainant
Versus
1. Mahindra & Mahindra Limited, Automotive Sector, Mahindra Towers, Third Floor, Akurli Road, Kandivali (E), Mumbai- 400101, through its Managing Director;
Second Address:- Mahindra & Mahindra Limited, Gateway Building, Apolo Bunder, Mumbai-400039, through its Managing Director.
2. Raga Motors Pvt. Ltd., G. T. Road, Paragpur, Jalandhar, through its Managing Director/Partner.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Jyotsna (Member)
Present: Sh. Balraj Sharma, Adv Counsel for the Complainant.
Sh. Chandandeep Singh, Adv Counsel for the OP No.1.
Sh. V. K. Singla, Adv Counsel for the OP No.2.
Order
Karnail Singh (President)
1. The instant complaint has been filed by the complainant, wherein alleged that the OP No.1 is the manufacturer of Mahindra Car XUV 500 W8 and the OP No.2 is a distributor of the OP No.1 in the area of Jalandhar. Both the OPs had offered for sale Mahindra Car XUV 500 W8 at Jalandhar at the showroom of OP No.2. At the time of the offer for the sale of the vehicle, it was assured by the technical staff employed by both of the OPs that the car manufactured by the OP No.1 is of international standards and all the safety measures which are fitted in the car are in the working condition without fault i.e. the air bags are designed to come into action in case of their contemplated use. The complainant who is an Engineering Officer by profession and knows the technical intricacies and details of the machines, was assured and convinced by such representations about the features of the car that the cars manufactured and offered for sale by the OPs No.1 and 2 meet all the standards and safety measures which are required and promised for such cars. Though there were many a variants in a different price range W6-Rs.10,84,389/- and W8-Rs.12,28,784/- through csd, the complainant opted for the purchase of the top model XUV 500 W8 by paying approximately Rs.1,50,000/- more than the other variants wherein facility of side air bags and curtain air bags was not available, as the complainant wanted to assure the total safety of the prospective passengers in the car from all sides and not merely from the front side as it was his firm belief that in case of accident there should be a safety mechanism in place from all sides.
2. That believing the assurance and representation of the OPs and the implied warranties regarding the fitment of all requisite mechanisms in place, at the time of sale of the vehicle, the complainant purchased the top XUV W8 model for a total amount of Rs.12,28,784/- and the vehicle bearing Chassis MA1YTH2HJUE6K12623, Engine No.HJE4K21461, was handed over to the complainant, vide delivery challan dated 20.11.2014 with temporary No.PB-08-CA-0926. After the purchase, the car in question has been allotted permanent registration No.PB-08-CW-6953 dated 31.12.2014. Thereafter, the vehicle in question has been put to regular services as per schedule and the original fitments were intact in the same condition, in which the vehicle was purchased.
3. That on 16.01.2015, when the vehicle in question was being used for traveling from Adampur to Jalandhar Railway Station and was being driven by the wife of the complainant Mrs. Nidhi Chauhan and the complainant was sitting in the front seat, it met with a severe collision on its driver side by a TATA 407 bearing registration No.PB-08-M-9732 being driven by one Gurjit Kumar in a very rash and negligent manner on a very high speed, who rammed his vehicle TATA 407 into the vehicle in question from driver side propelling the vehicle in question forward. The collision was of such a severity that vehicle was pushed for 10-15 meters and could not stop until rolling thrice before coming to a halt on the side of the road. The impact of the collision was so powerful that the outer body of right side of the vehicle got struck to the bonnet of TATA 407 and was totally damaged. However, unfortunately, the side and curtain air bags fitted in the vehicle which were required to be deployed during such powerful accident, failed to deploy due to some defect in fitment of the air bags or their respective sensors. Due to the powerful impact, the front air bag of driver seat as well as of front passenger seat wrongly opened instead of the side and curtain air bags due to the defect in the vehicle, which could not be explained by the concerned technical staff of OPs despite repeated enquiries from the complainant. Though there was no collision on the front side of the vehicle and at the angles where the front air bags could have possibly opened, the front air bags were deployed. But, the required air bags at the side of the collision and impact, failed to deploy. This was a major manufacturing and fitment defect in the vehicle, which has been sold to the complainant resulting in compromise of safety of the passengers and due to that the complainant and his wife suffered severe injuries and they got treatment from hospital rather wife of the complainant remained admitted in hospital. The complainant and his wife had to undergo a traumatized period as well as bodily pain, besides the loss of pregnancy of their first child due to the injuries and the treatment of injuries sustained in the accident as a result of the malfunctioning, non functioning of safety equipment of side and curtain air bags in the vehicle manufactured and sold by the OPs. The supply of a defective vehicle by the OPs is a grave negligence and deficiency in service on the part of the OPs and the OPs are guilty of indulging in supplying the defective vehicle of indulging in supplying the defective vehicle and of providing deficient services to the complainant and whereby loss of damages suffered by the complainant and accordingly, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay compensation of Rs.19,50,000/- to the complainant on account of injuries, trauma, the agony arising.
4. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that there is relation of OP No.1 and 2 as a dealer. The dealer of the replying OP No.1 purchase vehicles manufactured by the replying OP No.1 in bulk quantities and in turn resell them to their own customers. In other words, all the transactions between the answering OP and its dealers are on principal to principal basis and the replying OP No.1 is not aware of the ultimate customer of dealers. As such, there is no privity of contract between the replying OP No.1 and end user of the vehicle and further averred that in the case in hand, the entire controversy relates to non deployment of side and curtain air bags at the time of accident involving the complainant and his wife. It is most humbly submitted that firstly, the impact of the accident was frontal and consequently the front air bags have been rightly deployed which not only saved the life of the complainant and his wife, but also prevented them from serious/life threatening injuries. Further, the complainant himself has admitted in Para No.4 of the complaint that the subject vehicle got struck into the bonnet of TATA 407 i.e. Truck and was damaged. As a matter of fact, the truck hit on the front right corner i.e. driver's side of the vehicle which has resultantly deployed the front air bags. After the said impact, with the truck, the subject vehicle got struck into the bonnet of truck and the truck dragged the vehicle for some distance. After being dragged for some distance, the said vehicle was released and both the vehicle went out of control. Teh said impact of the truck was primarily on the front portion. It is submitted that the impact was essentially a frontal collision and side dragging. The impact on the side of the subject vehicle was reduced due to the initial frontal impact, thereby adsorbing the force of impact rendering the impact insufficient to stimulate/activate the side and curtain air bags. However, it must be appreciated that the front air bags deployed upon impact on the front portion of the subject vehicle. The answering OP states that it has been categorically explained in the owner's manual, the scenarios of deployment of air bags in cases of collision. The answering OP states that it is no necessary that the air bags will deploy in each and every situation of collision or impact. The impact has to fulfill some criteria's to deploy air bags and further submitted that the allegations in this complaint are vague and frivolous and further alleged that no cause of action has accrued to file the present complaint. The complainant has miserably failed to make out a case. Sustaining of injuries in an accident do not mean that the vehicle has manufacturing defect. The injuries, if any is result of an accident and it would be pertinent to mention here that the due to the frontal inflation of the air bags in an accident the lives of the complainant and his wife were saved and further submitted that the complainant has not got any expert opinion to establish any manufacturing defect in the vehicle. On merits, the purchase of the vehicle from OP No.2 is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
5. OP No.2 appeared through its counsel and filed separate written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable even the complainant has not come to Forum with clean hands and he is guilty of suppressing the true and material facts and further alleged that the complainant has got no locus-standi to file the present complaint and on merits, the factum in regard to purchase of the vehicle is not denied and further submitted that the safety depends upon the impact and with what force and at what angle the vehicle is hit. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
6. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence two affidavits Ex.CA and Ex.CB along with some documents Ex.C-1 to Ex.C-33 and further tendered into evidence affidavit Ex.CC and closed the evidence.
7. Similarly, counsel for the OP No.1 tendered into evidence affidavits Ex.OP1/A and Ex.OP1/B along with some documents Ex.R1/A to Ex.R1/C and Ex.R1/1 to Ex.R1/4 and closed the evidence.
8. Similarly, counsel for OP No.2 tendered into evidence two affidavits Ex.OP2/A & Ex.OP2/B and closed the evidence.
9. We have heard the learned counsel for the respective parties and also gone through the case file as well as written arguments submitted by Ld. Counsel for the OP No.1, very minutely.
10. In this complaint, the main contention of the complainant is that he purchased Mahindra Car XUV 500 W8 from OP No.2, which is being manufactured by OP No.1 and at the time of purchase, OP No.2 stated that the car in question is of international standards and all the safety measures, which are fitted in the car are in the working condition without fault i.e. the air bags are designed to come into action in case of their contemplated use. The desire of the complainant was also, prior to purchase of the car, that there must be assured total safety of the prospective passengers in the car from all sides and not merely from the front side and accordingly, with this hope as well as assurance of the OP, the complainant purchased the said car, but unfortunately, on 16.01.2015 when the complainant along with his wife were traveling in the said car, at that time, the car is being driven by the wife of the complainant Mrs. Nidhi Chauhan and on the way, the car met with severe collision on its driver side by a TATA 407 bearing Registration No.PB-08-M-9732, which was driven by one Gurjit Kumar, who was driving in a very rash and negligent manner at a very high speed, who rammed his vehicle into the car of the complainant. The collision was of such a severity that vehicle was pushed for 10-15 meters and could not stop until rolling thrice before coming to a halt on the side of the road. The collision was so powerful and outer body of the right side of the vehicle got stuck to the bonnet of TATA 407 and was totally damaged, but the side and curtain air bags fitted in the vehicle which were required to be deployed during such powerful accident, but failed to deploy due to some defect inherent manufacturing defect in the fitment of the air bags or their respective sensors. Instead of deploying the side and curtain bag, the front bag were deployed, which was due to mechanical defect in the vehicle and due to that mechanical defect, the complainant and his wife suffered a mental and physical pain because they got injuries and even the medical termination of the first pregnancy of the wife of the complainant was also did due to that accident and as such, the complainants are entitled for negligent act and unfair trade practice on the part of the OPs, to get compensation of Rs.19,50,000/-.
11. The case of the complainant mainly meeted by the OP No.1/Manufacturing Firm, being a reason the complainant alleged in the complaint that there is a inherent manufacturing defect in the fitment of the air bags and thus, the main contest of the complainant is with the manufacturing firm not with the dealer i.e. OP No.2 and main plea taken by the OP No.1 is that the complainant mainly alleged for non deployment of side and curtain air bags at the time of said accident and whereby the complainant and his wife got severe injuries and further OP submitted that firstly, the impact of the accident was frontal and consequently the front air bags have been rightly deployed which not only saved the life of the complainant and his wife, but also prevented them from serious/life threatening injuries. The second query submitted by the OP No.1 that the complainant himself has admitted in Para No.4 of the complaint that the subject vehicle got struck into the bonnet of TATA 407 i.e. Truck and was damaged. As a matter of fact, the truck hit on the front right corner i.e. driver's side of the vehicle, which has resultantly deployed the front air bags. After the said impact, with the truck, the subject vehicle got struck into the bonnet of truck and the truck dragged the vehicle for some distance. After being dragged for some distance, the said vehicle was released and both the vehicle went out of the control. The said impact of the truck was primarily on the front portion. It is submitted that the impact was essentially a frontal collision and side dragging and further submitted that the impact on the side of the subject vehicle was reduced due to the initial frontal impact, thereby absorbing the force of impact rendering the impact insufficient to activate the side and curtain air bags. However, it must be appreciated that the front air bags deployed upon impact on the front portion of the subject vehicle and further submitted that the aforesaid facts have been duly explained in the Owner's Manual, which was supplied to the complainant at the time of purchase of the vehicle in question and further submitted that there is no expert/mechanical opinion brought on the file by the complainant to establish that there was any manufacturing defect in the vehicle, if so, then the allegations of the complainant are not proved, therefore, the complaint of the complainant is liable to be dismissed and in support of its version, the counsel for the OP No.1 made reliance upon a pronouncement of Hon'ble National Commission, cited in 2017(1) CPJ 202, titled as “M/s Toyota Kirloskar Motors P. Ltd. etc. Vs. Tirath Singh Oberoi”, wherein his Lordship held as under:-
“Consumer Protection Act, 1986 Sections 2(1)(f), 2(1)(g) and 21(b) Revision, Motor Vehicle, Manufacturing defect, Allegation that SRS air bag did not deploy during accident, Compensation sought, Deficiency in Service, District Forum accepted the complaint, State Commission dismissed appeal, Revision, It was evident from the facts of case that there was angular collision during accident and not the frontal collision, complainant had himself stated that the offending vehicle came from the right hand side and not from the front, photographs of the vehicle also showed that damage had been done to the front right side, 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 was a manufacturing defect vehicle in question, Conclusion of the State Commission, did not get substantiated from any expert evidence on record, Petitioner were leading manufacturer of vehicles, It would not be fair to conclude that there was any manufacturing defect in vehicle in the absence of cogent, expert evidence that positioning of censor was incorrect, Vehicle was delivered back to complainant after carrying out the necessary repairs, Manufacturing defect not established, Order passed by Consumer Fora below set aside, Revision allowed.” He further made reliance upon an other pronouncement of Hon'ble National Commission, cited in 2015(1) CPJ 235, titled as “Brijesh Saxena and Others Vs. Skoda Auto A.S.& Ors”, wherein his Lordship held as under:-
“Consumer Protection Act, 1986 Sections 2(1)(f), 2(1)(g) and 21(a)(i) Consumer complaint, Car purchased, Met with accident, Death of owner of car driving the car at the time of accident, Manufacturing defect claimed, Defective air bags, Complaint filed alleging deficiency in service, OPs have further taken the stand that the accompanying person who was seated next to the driver survived the crash, meaning thereby that the air bag mechanism did function during the said collision, No material on record, to prove 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, Complainants have not been able to prove any manufacturing defect in the vehicle for which they may be held entitled for any compensation from the OPs, Complaint dismissed.” Similarly, counsel for the OP No.1 also made reliance upon a judgment of Hon'ble State Commission, Tamil Nadu, cited in 2015(3) CLT 430, titled as “S. Edayachandran Vs. Authorized Dealer, MPL Ford India Pvt. Ltd and others”, wherein his Lordship held as under:-
“Consumer Protection Act, 1986 Sections 2(1) (g), 13 and 17 Purchase of care, Due to manufacturing defect, Co- passenger died in accident, Deficiency in service, Complaint, Held, neither vehicle inspection report not produced in order to ascertain to nature of accident and the status of air bag system condition nor air balloons produced, since the complainant had failed to prove manufacturing defect with an expert opinion, he cannot claim any relief for the defective vehicle, Complaint dismissed.”
12. We have considered the respective plea of both the parties and also scanned the documents as well as judgments referred by the counsel for the OP and find that the facts which are admitted need not to be repeated here. So, accordingly, we preferred to come directly on the question in dispute, whether there was virtually any manufacturing defect in the vehicle specially in regard to non-deploying of side and curtain air bags of the vehicle at the time of severe collision, for that purpose, we have analyze all the documents and find that the documents placed on the file by the complainant Repair Bill Ex.C-1, Delivery Challan Ex.C-3, RC Ex. C-4 and FIR Ex.C-5 and Medical Treatment Bills Ex.C-6 to Ex.C-18, are not required to discuss in this complaint because there is no dispute in regard to above document and moreover these documents are required to be considered and taken into account for deciding the insurance claim. But in this case, the ownership, purchase of the vehicle and met with an accident and accordingly FIR was lodged, are admitted facts. Further, the complainant brought on the file some photographs Ex.C-24 to Ex.C-32 and we have gone through the said photographs and after scanning the photographs as well as Owner's Manual, copy of the Owner's Manual is Ex.OP-1. We find that the complainant has not brought on the file any expert opinion to establish any manufacturing defect in the vehicle and in the absence of expert opinion, we themselves analyzed the photographs and find the impact of the truck with the car of the complainant was corner/frontal and not sideways as alleged by the complainant and moreover, from the photographs, it is clear that the impact of the accident was severe corner/frontal impact and a result of which, both the front air bags had been rightly deployed. The said frontal air bags deployed to save the lives of passengers in the vehicle.
13. The version of the complainant that the impact of the truck was completely on the side of the said vehicle, but that version is not cleared or proved by any cogent and convincing evidence because if we inspect the side of the vehicle, where rubber piping under the front and rear door, the driver seat as well as rear passenger seats were intact without any damage, so, there is no doubt that the damage caused to the sides of the car was not due to side collision, rather it was dragging impact. The car of the complainant dragged at a some distance and thereafter, when the car was released from the truck, then the same was rolling thricely and due to that dragging, the damage on the side of the vehicle was caused. Further, if we go through the photographs, then we can say without any hesitation that the damage to the side of the vehicle is superficial and not deep so as to stimulate or activate the side/curtain air bag sensors placed in pillar B of the said vehicle. As per Owner's Manual Ex.OP-1 Para No.6.4 the curtain air bags are not designed to deploy in all sides impact situations, collisions from the front or rear of the vehicle or in most rollover situations. So, we find that the case of the complainant of dragging of the vehicle, which cannot be equated with collision. The side air bags and curtain air bags could have deploy in case the other vehicle has collided with the vehicle from the side directly, in case of dragging, the impact can be severe to trigger the deployment of air bags and in the present case, the collision of front/driver side and due to that both the front air bag deployed and side and air curtain were not deployed and as such, we do not find any manufacturing defect or fitment in the air bags sensors and moreover, the judgment referred by ld. Counsel for the OP are apparently applicable in the case in hand. So, accordingly, we do not find any substances in the argument of ld. Counsel for the complainant, therefore, the complaint of the complainant is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.
14. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jyotsna Karnail Singh
23.01.2019 Member President
