Complaint Case No. CC/28/2015 | ( Date of Filing : 01 Apr 2015 ) |
| | 1. M.M.Dawood | S/o Moosa, R/o Yogananda Layaout, 1st Block, Kushalnagar, Somwarpet Taluk, Kodagu. | Kodagu | Karnataka |
| ...........Complainant(s) | |
Versus | 1. Managing Director, Mahindra and Mahindra Ltd., | Automotive Sector, Kandivalli, East Mumbai, Maharashtra. | Mumbai | Maharastra | 2. The Assistant General Manager, | For Service India Garage, I.G.Workshop, (Authorised Mahindra service Center) No.201/1 & 2, Mysore Hunsur Road, Hinkal, Mysore. | Mysore | Karnataka | 3. Vinay Shetty, Sales Manager, India Garage, | I.G.Workshop (Authorised Mahindra Service Center)No.201/1 & 2, Mysore Hunsur Road, Hinkal, Mysore. | Mysore | Karnataka |
| ............Opp.Party(s) |
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Final Order / Judgement | IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MADIKERI PRESENT:1. SRI. C.V. MARGOOR, B.Com.LLM,PRESIDENT 2. SRI.M.C.DEVAKUMAR,B.E.LLB.PG.DCLP,MEMBER | CC No.28/2015 ORDER DATED 04th DAY OF AUGUST, 2018 | | Sri. Dawood, S/o.Moosa, Aged 43 years, Business(Proprietor of Hotel Kings Way), R/o.Yogananda Extension, 1st Block, Kushalnagar, SomwarpetTaluk, Kodagu District. (Sri.R.K. Nagendra, Advocate) | -Complainant | V/s | - Managing Director,
Mahindra & Mahindra Ltd., Automotive Sector, Kandivalli, East Mumbai. (By Sri. K.S. Sajan Naik, Advocate) - The Asst. General Manager for Service,
India Garage, I.G. Workshop, (Mahindra Seva Kendra), No.201/1/2 Mysore, Hunsoor Road, Hinkal, Mysore – 570 0017. - Sri. Vinayashetty,
Manager, Sales Division, I.G. Workshop, (Mahindra Seva Kendra) No.201/1/2 Mysore Hunsur Road, Hinkal, Mysore. (OP.2 & 3 reptd. by Sri. T.P. Purna Kumar, Advocate) | -Opponents | Nature of complaint | Damages and replacement of vehicle | Date of filing of complaint | 01/04/2015 | Date of Issue notice | 14/05/2015 | Date of order | 04/08/2018 | Duration of proceeding | 3 years4 months3 days |
SRI. C.V. MARGOOR,PRESIDENT O R D E R - This complaint is filed by Sri. M.M. Dawood s/o. Moosa, resident of Kushalnagar, Somwarpet Taluk, Kodagu District under section 12 of the Consumer Protection Act,1986 to award Rs.10,00,000/-as compensation with interest at the rate of 12% per annum towards the expenses met by the injured in the accident, direct the opponents to replace new Quanto C 8 for old one. The opponent shall pay expenses for maintaining another car with a interest at the rate of 12% per annum. That apart the opponents are jointly and severally liable to pay the said amount with interest at 12% per annum with litigation cost of Rs.10,000/-.
- The opponent no.1 is Managing Director of Mahindra and Mahindra Automobile sector situated at Kondivalli, East Mumbai. Opponent no.2 and 3 are the dealers of Mahindra vehicles and they are running business at Hinkal, Mysore.
- The complainant is running hotel business at Kushalnagar and in addition to that he doing real estate business. The complainant has purchased Mahindra Quanto C 8 vehicle from the opponent nos.2 and 3 which is manufactured by opponent no.1 for a sum of Rs.9,22,377/-. The said vehicle had facility of air bag which protects lives of passengers at the time of accident. If the same model vehicle is not having facility of air bag the cost of the said vehicle was Rs.7,96,824/-.
- That on 21/11/2014 the complainant vehicle was proceedings towards Bangalore and near Ramnagar Town a heavy Tanker Lorry which was preceding in front of the complainant car its driver suddenly applied the break, then the complainant’s Mahindra Vehicle hit to the rear side of Tanker Lorry. Inspite of the heavy impact of the accident the air balloons did not open immediately after the accident as a result the driver and two inmates of the Mahindra vehicle have sustained injuries and the vehicle was damaged.
- The complainant has requested the opponents to replace the vehicle or pay the value of the vehicle along with injured expenses, but the opponent did not respond to the request of complainant. Hence, the complainant has approached this Forum.
- The opponent No.1 has filed version in detail running 11 pages contending that the vehicle manufactured at the plant are thoroughly inspected stringent quality checks and test drive before passing through factory works for dispatch to the authorized dealers appointed on a principal to principal basis for sale of the cars and vehicles. It is the contention of opponent that the complainant is not a consumer under Consumer Protection Act since there is no deficiency in service by this opponent as there was no manufacturing defect in the vehicle. The complainant has made allegations against the opponent without relying on any expert report from a recognized and notified laboratory under Section 13(1) of the Consumer Protection Act. The complainant has made baseless allegations against this opponent alleging that there was a manufacturing problem in the vehicle as a result the air balloons did not deploy or inflate at the time of accident. The complainant is not entitled for any compensation for the injury sustained by the driver and inmates of the vehicle.
- It is the contention of opponent that the complainant vehicle hit the lorry from the rear side which indicates that vehicle was being driven in a rash and negligent manner without any regard to maintain reasonable distance between both the vehicles for deployment of air bags at the time of a hit or impact. The impact has to be on panels with the sensor activating the air bags. The complainant vehicle having hit to the lorry from the rear side, most of the impact was observed by the bonnet, crash bars, fenders and steering columns. The Air bag sensors installed in the specific area were not hit or stimulated by the residue impact of the truck. The impact on the sensor area is comparatively of minor intensity than that on crash bars, bonnet, fenders and steering rod. The direction of impact being not in alignment and the crash being to be a vehicle moving in the same direction as that on the subject vehicle and the impact not stimulating the sensor because of the impact being on under run the air bags did not deploy. Therefore, there was no manufacturing defect in the vehicle purchased by the complainant as such he is not entitled to any reliefs sought for. The opponent no.1 prays to dismiss the complaint with compensatory cost.
- The opponent nos.2 and 3 have filed separate version supporting the contention taken by opponent no.1. It is further contention of opponent no.2 and 3 that it is mandatory for the driver and inmates of the vehicle to wear seat belts while moving the vehicle. If the seat belts are not wore by the driver and inmates of the vehicle the air bags will not deploy. On the amongst other grounds, the opponent nos.2 and 3 pray to dismiss the complaint.
- The complainant filed his affidavit evidence in support of his case and produced list with 8 documents. Further the complainant has adduced evidence by filing affidavit evidence of P.J. Ashwath s/o. Jayananda, Mechanic, resident of Kushalnagar Somwarpet Taluk, Kodagu District. On behalf of opponent no.1 that one Anil Bandas s/o. Nrupendar Chandra Das working as DGM Regional Sales Office of opponent no.1 at Bangalore filed his affidavit evidence.
- We heard the arguments advanced by learned counsel for the complainant and opponent No.1 in addition to the written arguments submitted by the complainant and opponent No.1 and the points that would arise for determination are as under;
- Whether the complainant proves that he is consumer under the provisions of Consumer Protection Act?
- Whether the complainant further proves that he is entitled to compensation for the injuries sustained by his driver and inmates of the vehicle at the time of accident?
- Whether the complainant proves that non deployment of air bags at the time of accident amounts to deficiency in service?
- To what order?
- Our findings on the above points is as under;
- Point No.1:- In the Affirmative
- Point No.2:- In the Negative
- Point No.3:- In the Affirmative
- Point No.4:- As per final order for the below
R E A S O N S - Point No.1 to 4:- The opponent no.1 contention is that the complainant is not consumer under the Consumer Protection Act herein after called as Act for brevity. Section 2(1)(d) of the Act defines consumer means any person who buys any goods for consideration which has been paid or promised or partly paid and partly promised or under any system of any deferred payment and includes any user of such other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for re sale or for any commercial purpose. In the case on hand the complainant nowhere mentioned in the complaint or affidavit evidence that he purchased Mahindra Quanto C 8 for resale or commercial purpose. The opponent no.1 in the version not taken contention that the complainant was using the purchased vehicle for commercial purpose. The complainant by paying entire sale consideration of rupees nine lakh and odd purchased the ill-fated vehicle. In view of the absence of contention taken by the opponent or evidence produced by it the vehicle was being not used for commercial purpose then it can be easily held as the complainant falls under the definition of Consumer. Accordingly this complaint is answered in favour of the complainant and against the opponents.
- The opponents have not disputed the accident which took place on 21/11/2014 near Ramanagar Town and in the said accident the vehicle belonged to the complainant was damaged and two inmates and driver of the vehicle were sustained injuries. FIR produced by the complainant indicates that the inmates and driver of the vehicle have been sustained injury in the accident and have been admitted in BGS Hospital at Ramanagar. The injured might have spent money for treatment. The complainant in this complaint has sought Rs.10,00,000/- as compensation towards treatment expenses of the injured. The District Consumer Disputes Redressal Forum is not having jurisdiction to award compensation to the injured towards the treatment. The injured shall approach the Motor Accident Tribunal which constituted under the provisions of Motor Vehicles Act. Therefore, the complainant is not entitled compensation as sought by him for the amount spent towards the injured who sustained injuries in the accident.
- As already observed that the opponents have not disputed the purchase of Mahindra Quanto C 8 vehicle from the opponent no.2 and 3 which manufactured by opponent no.1 and said vehicle has met with accident on 21/11/2014 near Ramnagar Town. The place and manner of accident of the vehicle is not disputed by the complainant and opponents. This Forum is not having jurisdiction on whose negligence the accident took place since the complainant made an allegations against the opponents that there was manufacturing defect in the vehicle purchased by the opponents as a result air bags did not deploy at the time of accident consequently the injured have sustained injuries. It is the contention of opponents that the driver and passenger who was in the front seat at the time of accident were not wearing seat belt. It is further contention of the opponents that three was no manufacturing defect in the vehicle since the vehicle run under Tanker as such there was no impact on the sensor of air bags as a result they did not deploy. The complainant has produced five photos of the accident vehicle bearing No.KA 12 P 8546. On the other hand the opponent no.1 has produced manual of the car bearing page No.68 to 71.
- Page No. 68 of manual under heading warning mentioned the air bags inflate with considerable force. While the system is designed to reduce serious injuries, primarily to the head and chest it may also cause other less severe injuries to the face, chest, arms and hands. These are usually in the nature to minor burns or abrasions and swelling, but the force of a deploying airbag can also cause more serious injuries, especially if an occupant’s hands, arms, chest or head is in close proximity to the airbag module at the time of deployment. Sit straight and well back into the seat. Move your seat as far back as practical to allow room for airbag inflation, while still allowing you to properly operate/ drive the vehicle. The front passenger should never sit on the edge of the seat, stand near the glove compartment, rest feet or other parts of the body on the dashboard when the vehicle was moving.
- The learned counsel for the opponent no.1 argued that the driver and co-driver seat passenger were not wearing belt as a result the air bags were not deployed. The manual itself says that the driver and co-driver seat passenger shall sit back of the seat as possible for away from the dash board. The purpose of wearing seat belt by the driver is to control the vehicle while driving it. The co-driver seat passenger must sit properly i.e. to back of the seat without stretching his hands and legs on the dash board to avoid more grievous injuries at the time of accident. Wearing seat belt by the driver and co-driver seat passenger is no nexus with deploy of air bags at the time of accident. The sensor of airbags normally fixed behind the front head lights of the vehicle. If there is an impact of the accident the sensor of air bags starts operate and then air bags will deploy.
- In the manual page No.68 it is stated that all vehicle occupants must be properly restrained to use the seat belt. Page No.69, 70 and 71 contained how airbags will activate at the time of accident with pictures. Hitting a wall straight at moderately high speed then airbag will activate. An impact involving trees or poles may cause severe cosmetic damage but may not activate the airbag. If the edge of the vehicle or impact to the side of the vehicle then there is no possibility of activation of airbag.
- An airbag is flexible container that can be instantaneously inflated by air or gas the main purpose is to caution an adult head in case of any impact. An airbag is also known by its technical term a supplementary secondary restraint system or SRS. It can be referred to as an air caution restraint system of ACRS or even supplemental inflatable restraint. Whatever you call it, an airbag is a modern device installed in many cars for the exclusive purpose of saving lives. Without hearing a seat belt, in case of accident and when the airbags deploy, both air bags will deploy even if there is no occupant in the co-driver seat. It depends upon which car it is and what sensors are installed and what is required by law in that state/country. Therefore, on the above discussion it can safely come to the conclusion that there is no nexus between wearing seat belt by the driver and co-driver seat occupant of the vehicle deploy of airbags due to impact of the vehicle.
- The complainant has sought interrogatories from the opponent no.1 and among them interrogatory No.2 which is place of location for the sensor fixation. Reply given by opponent no.1 is that the sensor location defers from vehicle to vehicle. The airbags sensor is built in to the air bags electronic control unit (ECU), located generally inside the passenger cabin. The opponent no.1 has given evasive reply to the location of the sensor. The opponent no.1 has not stated the definite place of fixing sensor to the vehicle which met with accident. The opponent no.1 has given evasive reply that sensor is located generally inside the passenger cabin only. If the sensor is fixed in the passenger cabin air bags will not deploy because the impact of the accident is on the front or both sides or back side of the vehicle. To escape from the liability the opponent no.1 has given evasive reply with regard to the location of sensor of the airbag to the ill-fated vehicle. The opponent no.1 to question no.6 of the interrogatories how the air bag will open and what is the mechanism. The reply of the opponent is that deployment of the air bag happen in a fraction of second producing loud noise releasing white smoke and residue along with a non-toxic gas. Interrogatories No.8 is whether the life balloon / airbag save the life of driver and passengers of the car. The answer of opponent no.1 is that the air bags are designed to provide further protection to the vehicle occupants in addition to the primary protection provided by the seat belt. In the event of significant frontal impact the SRS airbags inflate to work in conjunction with the seat belt and help reduce injury mainly due to the driver or front seat passenger head / chest.
- If the photos produced by the complainant which perused show that the front portion especially right side of the vehicle is fully damaged. The right side of the engine part including body is damaged and right side head light broken. According to the vehicles manual only right edge of the vehicle is dashed to the lorry the airbag senor won’t activate. On the contrary right front portion of the vehicle hit to the rear part of the tanker and due to its impact front portion of the Mahindra vehicle is fully damaged. In fact the sensor of airbag were properly fixed or air bags installed properly then due to serious impact of the accident on account of activation of sensors the air bags would have deployed and avoided injuries to the driver and co-driver seat passenger. It shows that due to manufacturing defect i.e. installing airbags and its sensor inspite of serious impact of the vehicle airbags did not deploy at the time of accident. The Mahindra vehicle has not run under tanker and on the contrary it hit rear portion of the tanker. The above discussion indicates that due to manufacturing defect i.e. installation of airbags and sensors they could not activate and deploy inspite of serious impact of the vehicle. Therefore, there is manufacturing defect in the said vehicle.
- The opponents have sent estimation to the complainant for repair of ill-fated vehicle dated 24/01/2015 for a sum of Rs.8,16,862/-. The complainant has purchased the said vehicle for Rs.9,22,377/-, but the cost of the estimation sent by the opponents is more or less the value of new car. On account of this, the complainant has not given approval to the opponents to repair the vehicle as such it is lying in the service Centre of opponents since the date of accident.
- The opponent contention is that the complainant has not taken expert opinion with regard to manufacturing defect of the vehicle. The complainant has left the accident vehicle in the opponents’ service garage within a week from the date of accident. Since then till date the vehicle is lying in the opponents custody. When the complainant has made allegation of manufacturing defect with regard to installation of airbags and sensor, the opponents would have moved the Forum to appoint an expert to get report as to whether there is manufacturing defect in the vehicle. The burden is on the opponents to get expert opinion as they are denying the allegation of complainant and further the vehicle is in their custody since the date of accident. Even by seeing the estimation it can be safely come to conclusion that there is severe impact to the vehicle due to accident about 80%. If there was minor accident the opponents would not have estimated for repair of the vehicle nearly Rs.9,00,000/-. Therefore, the complainant is entitled to New Mahindra Quanto C 8 vehicle in place of the vehicle which met with accident which cannot be repaired by spending meager amount. Further the complainant is entitled for compensation of Rs.50,000/- for not providing alternate vehicle by the opponents from the date of accident. That apart the complainant is entitled to litigation cost of Rs.10,000/-. Accordingly, we proceed to pass the following;
O R D E R - The complaint filed by Mr. M.M. Dawood s/o. Moosa, resident of Kushalnagar is partly allowed directing the opponents to replace new Mahindra Quanto C 8 or any other vehicle equivalent to the price of Rs.9,22,377/- in place of KA 12 P 8546. The opponent Nos. 1 to 3 jointly and severally liable to deliver a new vehicle to the complainant within two months from the date of order.
- Further the opponent Nos.1 to 3 are jointly and severally liable to pay Rs.50,000/- as compensation and Rs.10,000/- as litigation cost to the complainant. The opponents shall pay the said amount within two months from the date of order otherwise, it carries interest at the rate of 12% per annum from the date of order till its payment
- Furnish copy of order to the complainant and opposite parties at free of cost.
(Dictated to the Stenographer and got it transcribed and corrected and pronounced in the open Forum on this 04th day of AUGUST, 2018) (C.V. MARGOOR) PRESIDENT (M.C. DEVAKUMAR) MEMBER | |