1. This Complaint regarding deficiency in service on the part of the Respondent/Company has been filed alleging that the vehicle purchased by the Complainant, a Mahindra XUV 500 suffered from a manufacturing defect in the deployment of airbags which did not open when the vehicle met with an unfortunate accident on 09.10.2014 in which the Complainant and other family members were travelling in which all the occupants sustained serious injuries and the vehicle was damaged completely from the front side.
2. The undisputed facts are that the vehicle was purchased under an invoice dated 28.02.2013. The said invoice is Annexure A to the Complaint. It has been stated at the bar that the vehicle was insured. The Complaint proceeded and the Opposite Party No.2 the dealer of the vehicle was also added vide order dated 01.09.2016. The Opposite Party No.1 manufacturer filed a written version contesting the claim. A rejoinder has been filed to the reply of the Opposite Party No.2 where after documents were filed on behalf of the Opposite Party including the owner’s manual of the vehicle and the communications as well as the vehicle history of the Complainant’s vehicle including the estimated expenditure in respect of the damage caused to the vehicle.
3. IA/2919/2018 has been moved on behalf of the Opposite Party No.1 praying for condoning the delay in the filing of the additional evidence affidavit that was filed way back on 09.02.2018. The said Application was allowed and the additional affidavit by way of evidence along with the documents was taken on record and allowed on 13.03.2018.
4. In order to substantiate their claim, the Complainant had filed the report of Mr. Rakesh Kumar, a surveyor of M/s Innovative Insurance Surveyors and Loss Assessors Pvt. Ltd. The said report dated 18.11.2014 is Annexure-G to the Complaint. Since the said report had not been proved, an order was passed on 22.10.2018 by this Commission to record the deposition of Mr. Rakesh Kumar through a Court Commissioner. Accordingly, a former judicial officer Mr. H.S. Sharma, a retired Additional and District Sessions Judge, was appointed as the Court Commissioner to record the statement of the said expert on payment of a fee of Rs.25,000/-. Opportunity was also given to the Opposite Parties to file any expert opinion if they so desired and to rebut the opinion of the expert relied on by the Complainants.
5. The Complainant, even though deposited the fee of the local Commissioner, he could not execute the assignment as the expert Mr. Rakesh Kumar never came forward to depose before the Court Commissioner. Faced with this situation, the Commission passed the following order on 25.03.2019.

Dated : 25 Mar 2019

                                                               ORDER

The complainant has not taken steps for compliance of the order dated 22.10.2018.  As a result, the Local Commissioner could not execute the assignment entrusted to him. The complainant is granted one last opportunity to take requisite steps within two weeks from today. The Court Commissioner shall thereafter record the statement of the expert in terms of the last order and submit his report at the earliest.

Re-notify on 29.08.2019, awaiting the report of the Court Commissioner.

 IA/15153/2018 (C/delay)

This application may be treated as disposed of.”

6.  The Complainant was then directed to ensure the presence of the expert before the Court Commissioner failing which the report of the Court Commissioner would not be taken into consideration. The order dated 15.11.2019 is extracted hereinunder:

“Dated 15.11.2019

                                                                                    ORDER

The expert of the complainant has not been examined by the Court Commissioner, he having not appeared before him. The complainant is directed to ensure his presence before the Court Commissioner on the date fixed for recording his statement, failing which the report of the Court Commissioner will not be taken into consideration.

List on 27.1.2020,  awaiting the report of the Court Commissioner.”

7. It appears that the said expert did not appear before the Court Commissioner therefore no report of his deposition could be filed. Learned Counsel for the Complainant urged that there is no fault on the part of the Complainant, but in this regard the order dated 15.11.2019 categorically records that the Complainant was to ensure the presence of the expert failing which the report will not be taken into consideration. It is thus clear that the said expert Mr. Rakesh Kumar whose report has been referred to hereinabove was not proved by his deposition as he failed to appear before the Court Commissioner and there is no affidavit of the expert before this commission to support the same.
8. The Opposite Party No.1 as noted above filed their additional evidence by way of affidavit that was allowed and the said affidavit by way of additional affidavit of Mr. Vidyakant Revanker was brought on record. Thus, this expert evidence by way of additional affidavit on behalf of the Opposite Party was filed in compliance of the orders of this Court and accepted on 13.03.2008.
9. It may be noted that there is no counter or affidavit of denial by the Complainant to the said expert evidence led by the Opposite Party No.1 in spite of that this affidavit was filed and is on record and accepted in terms of the order dated 13.03.2018.
10. The contention raised on behalf of the Complainant is that according to the documents filed by the Opposite Parties themselves and contained as information in the owner’s manual, there is no doubt that there was no deployment of airbags  according to the same, for which clause 6.8 of the owner’s manual for the model of the vehicle in question as revised up to June 2013, is extracted hereinunder:

11. It may be pointed out that the same clauses differently numbered are contained in the owner’s manual as revised up to April 2015 that has been filed along with the written statement of the Opposite Party No.2. In this manual, airbags deployment is mentioned at Clause 6.2.5 and airbag non-deployment is also mentioned side by side. The recitals are almost similar in both the manuals.
12. Learned Counsel urged that a perusal of the aforesaid description indicates that on a frontal collision depending upon the intensity and the speed or the angle of impact the airbag ought to have deployed, but on account of its manufacturing defects including that in the sensory system which controls the same, the airbags did not open causing injuries to the passenger on board. Learned Counsel apart from this has invited the attention of the Bench to the photographs on record to indicate the nature of the impact to contend that the vehicle was heavily dented and smashed from the front, which accident had taken on account of the head on collision with a moving truck from the opposite direction.
13. Learned Counsel for the Complainant has also invited the attention of the Bench to the letter dated 17.02.2015 that was sent much after the accident and during the pendency of the present Complaint which refers to the recall of all the vehicles of the same model manufactured up to July 2014 for upgrading the same with a new software in respect of the airbag deployment. It is therefore submitted that this recall of the vehicles by the Company itself demonstrates that the airbag control software suffered from a manufacturing defect which establishes the claim of the Complainant.
14. Responding to the aforesaid submissions, learned Counsel for the Opposite Party No.1 urged that firstly the said letter dated 17.02.2015 is only in respect of side curtain airbags to which a reply has been given in paragraph 9 of the response to the aforesaid document which is extracted hereinunder:

“9. That, one such Voluntary Recall was done by the Opposite party No.1 Mahindra & Mahindra Ltd. on 12.02.2015 for the Vehicle XUV500 manufactured between 01.04.2011 to 01.07.2014 for three variants vis. W4, W6, W8 as the OP No.1 for the purpose of software upgradation regarding Side Curtain Airbag. This does not mean that there was any fault or error for which recall was indicated/ Secondly, the present dispute does not relate to side curtain airbag as the case of the Complainant is only regarding frontal airbags.”

15. The contention is that the aforesaid letter of recall was not for any other purpose except limited to the side curtain airbags and which was also intimated to the Complainant. The same has no impact at all on the present controversy inasmuch as the Opposite Party No.1 took all due care to tender an exclusive expert report to explain the present controversy which remains unrebutted. He has further invited the attention of the Bench to the notice attached to clause 6.5 of the owner’s manual referred to above which clearly notifies the option to the owner of the vehicle that if an airbag does not deploy during an accident, the vehicle should be taken to the authorized Mahindra Dealer for a thorough inspection no matter how minor or major the accident is. This he submits is necessary to locate any possibility of the airbag system having been damaged previously, and may not have worked as intended in a subsequent accident, resulting in any injury. He submits that no such inspection was attempted by the owner. He further submits that there is no other evidence inasmuch as the expert relied on by the complainant did not depose to prove his information in spite of a direction of this Commission. He further submits that there is no evidence of any motor vehicle accident being reported to the police so as to demonstrate or even contradict the stand taken by the Opposite Party. The same could have otherwise been a material to assess the nature of the accident and its impact but no such evidence is available. He then submits that the expert evidence as filed on record and mentioned above on behalf of the Opposite Party No.1 has neither been controverted by any denial affidavit by the Complainant nor any attempt has been made to interrogate or cross examine the said expert. He therefore submits that on the one hand there is no evidence led by the Complainant, and on the other hand the expert evidence of the Opposite Party No.1 leaves no room for doubt that there was no manufacturing defect in the deployment of the airbags, hence the complaint deserves to be dismissed for want of any evidence to support the allegations.
16. Having considered the submissions raised, the statement made by Mr. Rakesh Kumar in his report refers to the functioning of airbags as follows:

"Functioning of Airbags:-

A central Airbag control unit(ACU) (a specific type of ECU) monitors a number of related sensors within the vehicle, including accelerometers, impact sensor, side (door) Pressure sensors, wheel speed sensors, gyroscopes, brake pressure sensors, and seat occupancy sensors. The bag itself and its inflation mechanism is concealed within the steering wheel boss (for the Driver). or the dashboard (for the Front passenger), behind plastic flaps or doors which are designed to "tear open" under the force of the bag inflating. Once the requisite 'threshold" has been reached or exceeded, the airbag control unit will trigger ignition of a gas generator propellant to rapidly inflate a fabric bag. As the vehicle occupant collides with and squeezes the bag, the gas escapes in a controlled manner through small vent holes. The airbags volume and the size of the vents in the bag are tailored to each vehicle type, to spread out the deceleration of the occupant over time and over the occupant's body, compared to a seat belt alone.

The signals from the various sensors are fed into the airbag control unit, which determines from them the angle of impact, the severity, or force of the crash, along with other variables. Depending on the result of these calculations, the ACU deploy various additional restraint devices, such as seat belt pre-tensioners, and/or airbags (including frontal bags for driver and front passenger, along with seat-mounted side bags, "curtain" airbags which cover the side glass).”

17. He has further narrated the extent of damages and his conclusion as follows:

"Extent of Damages:-

The vehicle is badly damaged from front and left side impacting Bumper, Bonnet, L/s W/s Pillar, Door, L/s door Hinge Pillar, Engine, and Windshield & Radiator. The airbags sensors front and left side found impacted and front airbags cover also found displaced, but Airbags fails to inflate after accident. The repairer workshop M/s GSP Motors has demanded ECU, Airbag, and Driver Airbag in his estimate dated:-21/10/2014 which confirms that they are defective.

Conclusion;-

After inspection of vehicle the Air Bags impact sensors of vehicle found impacted and front parts of vehicle also found badly Dented/Crushed. In our Opinion the Air Bags must be deployed in this type of accident. The most common reason of non-deployment of Airbags in such type of accident is due to failure of crash sensors, displacement of sensors writing, faulty ECU and faulty airbags.”

18. A perusal of the description of the functioning of the airbags seems to be what is provided for in clause 6.6 of the owner’s manual which is extracted hereinunder:

“6.6 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 deceleration threshold level is low when the vehicle impacts straight into a fixed barrier that does not move or de- form. This threshold deceleration 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 deceleration level is met, a chemical reaction is triggered in the inflators which quickly fills the airbags with non-toxic gas.

Upon deployment, tear seams molded directly into the pad covers separate under pressure from the expansion of the air bags. Further opening of the covers allows full inflation of the airbag's. A fully inflated air bag, in combination with a properly worn seat belt, slows the driver's or the passenger's forward motion, reducing the risk of head and chest injury.

After complete inflation, the air bag immediately starts deflating, enabling the driver to maintain forward visibility and the ability to steer or operate other controls.

Deployment of the airbag's happen in a fraction of a second, producing a loud noise releasing smoke and residue along with a non-toxic gas. This does not indicate a fire. This smoke may remain inside the vehicle for some time, and may cause some minor irritation to the eyes, skin or breathing. Be sure to wash off any residue with soap and water as soon as possible to prevent any potential skin irritation. If you can safely exit from the vehicle, you should do so immediately.”

19. Mr. Rakesh Kumar’s explanation is not supported by his deposition nor it has been proved otherwise but looking to clause 6.6 of the owner’s manual, the same indicates as to when and how airbags would open on a certain threshold of the impact.
20. This deserves to be examined with the help of the expert evidence of the Opposite Party No.1 which is the evidence by way of affidavit by Mr. Vidyakant Revanker. The said affidavit is the only expert evidence available led on behalf of the Opposite Party where he has stated on personal inspection that the nature of the impact on the vehicle may not have triggered the opening of the airbags and there was no defect much less a manufacturing defect in the airbag or the electronically controlled unit for the airbags in the vehicle in question. He submitted that the reason for this is that this was an instance of Underride situation in which case the deployment of airbags do not occur. This is therefore not a manufacturing defect, nor a defect of deployment. The Underride situation has been explained by the expert in para 18.2 of his affidavit which is extracted hereinunder:

21. Learned Counsel for the Opposite Party urged that in this case the vehicle was hit not exactly head on and was angled sideways. It is pointed out that there is a probability of breaks having been applied heavily resulting in the right of the vehicle in a tangent position. This technical aspect has also been explained in the owner’s manual. The Underride situations from the manual have already been extracted hereinabove. It is also urged that all the photographs which have been relied on by the Complainant are not from the site of the accident and seems to have been taken at the garage where the vehicle was stationed for repairs after the accidents the truck with which the vehicle collided and its positioning nowhere depicted in the photographs. Had there been a police report lodged or extent claim made the status of the collision would have been clarified for which no evidence has been led by the Complaiannt.
22. It has also been stated in the evidence affidavit of the Opposite Party No.2 that the vehicle had been repaired for accidental incidnets in the past as follows:

“a) Incident of Jumping Road Divider - On 30.8.2013, the vehicle was reported to workshop for underbody repair jobs as the vehicle jumped over a road divider.

b) Accident causing crash of rear and front bumpers - On 21.9.2013, the vehicle was reported to workshop for denting and painting of infront and rear bumpers.

c) Accident causing breakage of Windscreen - On 31.08.2014, the vehicle was reported to workshop for windshield glass replacement.”

23. No claim of any manufacturing defect was ever made by the Complainant, the vehicle had covered almost 45,000 KM without any complaint. It is evident from the paragraph 11 of the evidence affidavit of the Opposite Party No.2  that the impact caused was an unclear collusion that is from the left side. Para 11 of the evidence affidavit to the extent above is extracted hereinunder:

“I say that from the averment of Complaint and photos annexed, it is apparent that the impact of the vehicle was from left side and it has hit the vehicle going forward as can be seen from the photographs. It is apparent that the said XUV has hit the vehicle going infront of it as it is the fault of the driver driving the XUV. Since the impact of accident was on the bonnet only, the front apron and both crash systems were never twisted and hence Airbag did not deploy in the said impact. The impact was not severe and the speed of the said vehicle i.e. XUV seemed to be slow and secondly the impact to the said vehicle was not directly from the front and rather the angular collusion i.e. left side. Rather the accident was from the left corner and not direct leading to non- deployment of airbags as there was no specific accidental impact generated to that extent leading to non-deployment of airbags. The point of impact of vehicle is very relevant and pertinent for deployment/inflation of airbag in the vehicle as can be seen from the brochure of the XUV. The incident in question is an instance of "underride". XUV 500 being a modern car even the bonnet and other body part have crumple zone and the crash energy is absorbed by bonnet as well as other body part”

24. It may be noted that the evidence by the Opposite Party No.1 is of the Manufacturer (active safety and NCAP) of Mahindra North American Technical Center Auburn Hills Michigan United States of America. The deponent has stated that he has a Masters Degree in Mechanical Engineering from Wayne State University Detroit Michigan and a Masters in Business Administration from the University of Michigan USA he has also stated that he has an overall experience of 20 years in research and development, core engineering application, engineering and manufacturing of automobiles and he has worked for about 14 years in the safety domain related to automobiles in the United states of America. He has indicated of having worked in large scale global safety projects for automobiles and also with global original equipment manufactures. He has also several patents to his credit and has worked as Senior Principal Engineer with Mahindra and Mahindra ltd. Of the safety system integration.
25. A perusal of the said qualifications which remain undisputed place the said deponent of the affidavit in the category of an expert who has given an extensive explanation in almost a five page affidavit with the following reasons for non-deployment of the airbags in the present matter.

“E. REASON FOR NON-DEPLOYMENT OF AIRBAG IN PRESENT MATTER

19. I state that I personally visited GSP Motors, Gurgaon on 20th October 2014, where vehicle was laying, and inspected the vehicle carefully.

20. I hereby state that the incident in question is an instance of "Underride Situation". This situation is better explained in Para 18.2 above.

21. I state that XUV 500 is a modern car, therefore even the bonnet and other body parts have crumple zone, due to which the crash energy is absorbed by bonnet as well as other body parts. I further state that the during the inspection the vehicle, I found that the "Primary Energy Management Structures" of the vehicle were not affected or impacted and that is the precise reason for non-deployment of Airbag.

22. I state that Rail Tip of Left and Right Side of the Vehicle which form part of the crumple zone remain completely unimpacted in the accident.”

26. On a perusal of the aforesaid expert opinion there is a probability of the airbags not  having opened in a state of Underride collision as explained by the expert. This expert opinion has not been controverted nor is there any other material before this Commission to conclude otherwise. As noted above no evidence was led by the Complainants, and in such a situation to accept the claim of the Complainant that the vehicle was suffering from a manufacturing defect of non-deployment of the frontal airbags of the vehicle on account of the accident would be against the evidence on record.
27. This complaint is therefore dismissed for the reasons aforesaid but at the same time the dismissal of this Complaint is only on the facts of the present case as noted above for want of any contrary evidence on the part of the Complainant. The Complaint is accordingly dismissed.