THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.

C.C.454/2011

Dated this the 11^th day of January 2017

                     (Smt. Rose Jose, B.Sc, LLB.                         :  President)

                          Smt.Beena Joseph, M.A                          : Member

                          Sri. Joseph Mathew, MA, LLB               : Member  

ORDER

Present: Beena Joseph, Member:

            This petition was filed on 17.11.2011.  The case of the complainant is that he is a businessman having business at India and Abroad has been using different brands of car for last 25 years with airbag facilities.  Lastly he used a Maruti Ritz VD1 Car without airbag facility which met with an accident several times and he narrowly escaped from fatal injuries.  Thus complainant lost his confidence in driving car without airbag.  So he decided to purchase car with air bag from opposite party’s dealer at Vadakara.  Opposite party’s persons explained the qualities of Maruthi Ritz ZXI and explained how the airbags will work at the time of frontal collision.  The dealer informed that the airbag will inflate when there is collision force equal to 16KM per hour.  The difference of prize with airbag is Rs.70,000/-.  Believing the explanation complainant purchased a Maruthi Ritz ZX1 on 10.02.2010, with front airbag module.  The vehicle is having 2 year warranty and also paid amount for extended warranty.  The Registration number of the car is KL 18 F4440.

            On 10.09.2011 complainant was driving the vehicle with his family members the vehicle was running at a speed of 40 to 50 km per hour, when it reached at Bhoomivathukal,  vanimel a bus bearing number KL 13 V 4647 came from the opposite  side in a rash and negligent manner and hit against the complainant’s Car.  Due to this sudden hit the frontal portion of the car including the Bumber is totally damaged.  Complaint preferred through  email to the first opposite party, to that they replied that their regional service manager  will look into the matter.  The service manager orally informed the complainant that, it is a major defect and approach the board of director of first opposite party.  Again complainant issued letter to first opposite party ,which was replied by directing the complainant to read some pages in owner’s manual.  The car was driven only 9000km so far.  The vehicle was with second opposite party from 10.09.2011 onwards, so far no repairs were effected by the second opposite party.  Hence complainant forced to use rental car for his day today purpose.  Hence he filed above complainant claiming exchange of a new car or to refund Rs.70,000/- which collected excessively for airbag facilities, claiming Rs.15,000/-for delay in repair and to pay Rs.10,000/- towards mental agony. Mother in Law sustained injuries.  It was a severe frontal collision the bus also running 60 to 70 km per hour.  The complainant was surprised because the supplemental restraint system(airbags) were not inflated at the time of accident, when it was at most need. If it was inflated the complainant and his mother in law will not sustain injury.  This caused heavy mental trauma to petitioner and his family.  And he lost confidence in driving vehicles.   The petitioner believes that Maruthi Suzuki dumping inefficient security systems in their vehicles.  The vehicle sent to second opposite party for repair and he made a complaint to them regarding the nonfunctioning of the airbag.  Second opposite party agreed that it is a manufacturing defect and directed him to send a complaint to first opposite party.  Thus he issued a complaint through e-mail.

Notice issued to both sides both of them appeared.  First and second opposite party filed separate version contending the following facts.

            First opposite party filed version stating that complainant has filed a vexatious complaint on false allegations.  Hence it is liable to be dismissed with cost and compensatory cost.  There is no allegation of deficiency in service or unfair trade practice against the opposite party.  Liability of warranty clause is stated owner’s manual.  Complainant is bad for misjoinder of parties, as there is no cause of action against first opposite party.  The allegations are beyond the warranty scope and taking shelter of this Forum to put undue pressure on opposite party.  Opposite party impleaded in this case to gain unlawful advantage Complainant’s allegations are outside the ambit of sec.2 of the act.  No loss or injuries sustained to the complainant due to the negligence of opposite party.  Hence he is not entitled to get any compensation from the first opposite party.  The present complaint is baseless and abuse of process of Law and to harass and blackmail opposite party.  Complainant has no locus standi to file the above complaint.

            Opposite parties controls 45% of car market share in the country, producing best quality cars.  Vehicles are produced after through checking and inspection as per the standard.  The complainant using the vehicle in negligent and improper manner which causes several accidents.  This shows the careless habit of the complainant.  First opposite party denies the representation given by persons of second opposite party at the time of purchase of car.  Complainant purchased the above car as per the will and his free volition. The safety measures are incorporated to minimize the injuries on accidents.  The safety features are provided in the vehicle does not guarantee complete safety to the passengers.  Passengers have to follow safety instructions provided in the Owner’s manual to minimize the risk of accident.  This submitted that the front airbags are designed in inflate only in severe frontal collisions it will not inflate in rear impact, side impact, roll overs or minor frontal collisions. Opposite party provides warranty for 24 months or 4000 Km whichever event occurred first.  And on payment additional premium of 4^th year or up to 80,000 km from the date of sale of a new car.  The warranty is not absolute and it is subject to terms and conditions and limitations.  The vehicles are manufactured by the opposite party under strict quality control and pre delivery inspection.

            The alleged manufacturing defect in airbags is denied by the opposite party and there was no defect or abnormality  in the airbag system or braking system and there was no complaint of glowing of malfunction of indicator in the  instrument  panel.  No abnormality reported at the time of periodical maintenance of the vehicle.  The vehicle’s are manufactured by opposite party are duly approved by govt. agencies regarding safety quality and emission norms.  The allegation of the complainant was thoroughly checked by engineer of opposite party  on 12.11.2011 from the workshop.  Then it found that airbag and airbag sensor was ok.  No malfunction of indicator was found.  This was informed to the complainant and he was also satisfied regarding the inspection.  Now the complainant himself has assessed the manufacturing defect of the vehicle for which he is neither qualified nor have any experience.  It is submitted that the accident occurred in this case is falls under the category of “Front airbags will probably  not inflate”.  There was no manufacturing defect to the vehicle and there is no question of replacement of the vehicle.  The complainant has failed to prove his claim.  There was no omission or commission on the part of the opposite party causing any losses to the complainant.  Complainant is suffered the accident due to his rash and negligent driving habit.  The compensation calculated by the complainant is mere exaggeration.

            The Forum has no jurisdiction to entertain the present dispute.  There is no cause of action, deficiency in service or unfair trade practice on the part of opposite party.  The complaint filed with ulterior ill motive.  Hence the petition is liable to be dismissed with cost.

           Second opposite party filed version stating the following contentions.  The petition is not maintainable because there is no deficiency of service attributed against the 2^nd respondents.  The above vehicle was purchased from Indus Motor vadakara they are not made party to the proceedings.  Hence petition is bad for non joinder of necessary parties.  The claims stated in Para 3 of the petition is denied by the 2^nd opposite party as they are not aware about the skill of the petitioner in using airbag vehicles etc.  The quality explained by the Indus Motors regarding the airbag in Maruti Ritz ZX1 is not aware to this respondent.  The fact that vehicle with airbag having a higher value of Rs.70,000/- comparing with other models.  This 2^nd opposite party is unaware about the representations and information given by the Indus Motors.  The vehicle is having two year warranty and extended warranty.  The averments of Para 4 in the petition is denied by the 2^nd opposite party.  Further 2^nd opposite party denied the collision with the petitioner’s car with bus number KL 13 V 4647 due to the hit complainant’s car sustained frontal portion damaged were not known to this 2^nd opposite party.  It is true that complainant’s vehicle had met with an accident & brought to the workshop of 2^nd opposite party for body repair and the same had been done promptly and efficiently.  The averment that the collusion was a frontal one, while the car was running at a speed of 40 to 50 km per hour and the bus was running 60 to 70 km per hour and the surprise of the complainant the airbags are not inflated at the time of accident are not known to this opposite parties and they denied the same allegations.  The injury sustained to petitioner and his family also denied by the 2^nd opposite party.  The opposite party is neither liable nor responsible for the alleged accident or alleged mental trauma said to have been suffered by the complainant.

The 2^nd opposite party denies the experience of complaint regarding various types of vehicles having air bags.  Further 2^nd opposite party disputes the allegation that Suzuki dumping their inefficient machines in India.  In fact Suzuki is a renowned world known Company.  The allegation that  the second opposite party send the vehicle for accidental repair and made complaint regarding  nonfunctioning of airbag and the 2^nd opposite party agreed the same as manufacturing defect and directed the complainant to issue complaint to the opposite party No.1 etc. are denied by the 2^nd opposite party.  The complainant grievance was properly replied by the   1^st opposite party and their regional manager examined the vehicle from the workshop.  The allegation that the service manager orally informed that it is a major defect and if the complainant approach the board of director of 1^st opposite party, the vehicle will be replaced etc. are absolutely false and stated only for the sake of the complainant.  The averment of the complainant that he had send another letter to the opposite party which replied, directing him to read some pages of owner’s manual and complainant believes that driving of above car is a cat and mouse game with death and he lost the confidence to drive the car etc are denied by the opposite party.  The vehicle was not timely repaired due to that complaint compel to take a rental car etc. are baseless and denied by the opposite party.  This opposite party is not liable to take back the car under any circumstances for the reason that the vehicle was sold by Indus Motors.  There was no delay in repairing the above vehicle by the opposite party.

All the repairs and service of the above vehicle were done by the Indus Motors, Vatakara till the date of accident.  Hence without prejudice the contentions taken by the 2^nd opposite party, it is submitted that if at all the claim raised by the complainant is genuine, the same ought to have been made against Indus Motor Vadakara.  This opposite party has taken utmost care in repairing the vehicle, but it was the complaint who committed delay in giving documents of the vehicle in order to claim insurance.  There was no service deficiency attributed against this opposite party.  The Maruthi Engineer inspected the vehicle and found that air bag is working properly hence no merit in the complaint there was any service deficiency on the part of this opposite party.  This opposite party is made as a party to the complainant only as an experimental basis.  Hence the petition is not maintainable and it is liable to be dismissed with cost.

Points to be considered;

1. Whether the petition is maintainable or not?
2. Is there any manufacturing defect or service deficiency on the part of opposite party?
3. If yes what are the reliefs.

     In this matter complainant filed affidavit and examined as PW1 Exts.A1 to A10 marked.Ext.A1 is the Job card. Ext.A2 complaint and its reply.  Ext.A3 is the 2^nd email complaint and its reply.  Ext.A4 photo of the vehicle Ext.A5 is the service manual.  Ext.A6 series is repair bills Ext.A7 is the photographs of vehicles.Ext.A8 is the invoice of the vehicle. Ext.A9 is the GD certificate issued by Valayam police.  Ext.A10 price of various models of Ritz. Opposite party has no oral evidence Ext.B1  manual marked on the side of opposite party.           

Point No.1:-The facts of the case and its reply were detail stated Supra.  So need not adverted herein again.  The complainant’s states that this car bearing number KL18F4440 which purchased from Indus Motors Vadakara as on 10.02.2010 by paying Rs.70,000/- excess for the airbag facility.  He purchased the above vehicle having airbag facility because he has lost the confidence in driving vehicles without airbag.  The purchase of Ritz ZX1 model from Indus Motor Vadakara was not disputed by any of the party.  2^nd opposite party is the agent of first opposite party.  The contention took by the 2^nd opposite party that the vehicle was sold be vadakara Indus, they ought to have made a party to the proceedings.  And petition is bad for non joinder of necessary parties.  Considering this aspect it is come in evidence that 2^nd opposite party and Indus Vadakara are the agents of first opposite party.  And there was no specific allegation against Indus Motor, Vadakara.  Hence the contention that petition is bad for non joinder has no relevance. Other contention took by the opposite party is that petition is not maintainable before this forum.  On analyzing the facts of the case it is come in evidence that, complainant had purchased a Ritz VX1 model on 10.02.10, which manufactured by first opposite party.  The main allegation raised by the complainant is nonfunctioning of the airbag which is a manufacturing defect.  So it has to be answered by first opposite party.  On the other hand 2^nd opposite party submits that, the petition is not maintainable because they have not sold the vehicle to the complainant.  But it is brought in evidence that the above vehicle was manufactured by first opposite party and second opposite party is the service agent of the first opposite party and the vehicle involved accident entrusted with the second opposite party for repair.  And the allegation of the complainant was that there was inordinate delay in repairing the vehicle.  Hence it is proved that there is a relationship existing between the complainant and the opposite parties.  Hence the petition is maintainable before this forum.

Point No.2:-    Now the points remaining to be considered are, is there any service deficiency or manufacturing defect.  Admittedly 2^nd opposite party is the service agent of the 1^st opposite party.  The above vehicle was involved in an accident on 10.09.2011while complainant was driving the vehicle.  And it collided against a bus which coming from the opposite side at Bhoomivathukkal.  This was a frontal collision as per the records produced by complainant.  Ext.A1 Job Card issued by 2^nd opposite party shows that, this was a frond side accident caused to the vehicle.  The vehicle was entrusted with 2^nd opposite party for repair on 15.09.2011.  And it seen delivered after repair on 29.11.11. Which took 2 ½ months for completing the repair.  The complainant states that there was inordinate delay in repairing the vehicle, to which the 2^nd opposite party states that the delay caused because of non production of RC insurance of the vehicle by complainant.  But Ext.A1 job card shows that the documents of the vehicle were received on the same day.  The opposite party states that accidents and repair caused to the vehicle were minor in nature but they took 2 ½ months for repairing such a minor work.  This establishes are lack city on the part of 2^nd opposite party which amounts to deficiency in service.  This point is found in favour of the complainant.

            The main allegation of the complainant is that the vehicle which he purchased having airbag facility which manufactured by 1^st  opposite party met with an accident on 10.09.2011.  But the airbags were not inflated during the time of accident. Which was caused due to the manufacturing defect of the vehicle.  The 1^st opposite party being the manufacturing company of the vehicle they are liable to replace the vehicle or to return the excess amount collected from the complainant. In this matter both of the parties were not disputed the accident caused to the vehicle.  In addition to the above complaint states that, at the time of the accident the air bags were not inflated.  Due to that he had lost  confidence to driving the vehicle, more over he sustained a loss of Rs.70000/- in purchasing a vehicle having airbag facility.  In order to prove this complainant has produced Ext.A10 price list of Ritz ZX1 & VXI, Ext.A10 shows the difference of vehicles price. The opposite parties herein do not dispute the non inflation of airbag of the vehicle at the time of accident but on the contrary they states that the accident was from a side hence the sensor could not read the same thus the airbags could not inflated.  Regarding the non inflation of air bag at the time of accident complainant preferred complaint to 1^st opposite party which produced before the Court as Ext.A2 & A3.  The above complaints were replied by the 1^st opposite party.  And they conducted an inspection of the vehicle by their service manager regarding this aspect.  Even then they could not find any manufacturing defects in the vehicles airbag system and requested the complaint look into the provisions of owner’s manual and service booklet under the caption frond airbag will probably not inflate on page number 231 to 236.  The above manual was marked as Ext.B1 & A5.  The 1^st opposite party heavily states that the accident was not a frontal collision, that is why the airbag was not inflated at the time of accident.  The Ext.B1 & A5 manual shows that the forward crash sensor is installed in front of the right hand side of the vehicle.  In this matter the documents produced by the complainant and opposite party shows that the accident was caused on the front right side of the above vehicle.  Regarding this aspect there was no dispute.  If we believe Ext.B1 manual, if an accident occurred on front right side the airbag ought to have been inflated.  The Ext.B1 manual further shows the frontal collision rage of the vehicle which extended to right head light to left head   light.  In this matter we already found that the accident caused to the right frond side of the vehicle, this area is involved the frontal collision area of the airbag sensor. So what is stated in Ext.B1 &Ext.A5 is not correct.  This establish that the accident occurred on the frontal area of the vehicle were the airbag sensor is installed.  Even then the air bag was not inflated during the time of accident.  This may cause because of the inferior quality of airbag or manufacturing defect.  In order to prove the manufacturing defect the complainant ought to have taken steps to prove the same.  There was no evidence to prove the manufacturing defect.  Even then, it can be found that the airbag was not inflated during the time of accident.  It remained there as an ornament or an extra fitting.  But fitting the airbag as an extra ornamental fitting, first opposite party collected Rs.70000/- as excess from the complainant. This can be treated as an illegal trade practice.  So the first opposite party is responsible for the unauthorized collection of amount on the basis of non working fittings like airbag.  More over the ext.A4 photographs of the vehicle shows that the accident was not a minor one as stated by opposite party. Ext.A4 shows that the frontal right side of the car was damaged seriously.  In this circumstances complainant is entitled to get the excess amount paid for the airbag.

            We already found that the second opposite party took 2 ½ months to repair the vehicle, if it be a minor one, it need not require 2 ½ months time to repair the vehicle.  Towards that second opposite party is liable to pay compensation to the petitioner.  If a person regularly uses a vehicle several years he will be in trouble due to the non availability of own vehicle.  In the result the above petition is allowed.

            So we direct the opposite party No.1 to pay Rs.70000/- to the complainant towards the cost of airbag and Rs.20,000/-(Rupees twenty thousand only) as compensation for unfair trade practice and second opposite party is directed to pay Rs.10,000/- towards the delay caused in repairing the vehicle.  Comply the order with within 30 days from the date of receiving the copy of the order.

Dated this 11^th day of January 2017.

Date of filing: 17.11.2011..

SD/-MEMBER                                              SD/-PRESIDENT                           SD/-MEMBER. 

APPENDIX

Documents exhibited for the complainant:

A1.Job Card issued by the 2^nd opposite party dtd.15.09.2011.

A2. Complaint and its reply

A3. 2^nd e-mail  complaint and its reply.

A4. Photo of the vehicle

A5.Service manual

A6. Series  is repair bills.

A7. The photographs of vehicles.

A8. The invoice of the vehicle

A9. The GD certificate issued by Valayam Police.

A10. Price of various models of Rits.

Documents exhibited for the opposite party:

B1. Manual (Supplemental Restraint system(air bags) Warning with photos

Witness examined for the complainant:

PW1. Abdul Salam(Complainant)

Witness examined for the opposite party:

None

                                                                                                                                                       Sd/-President

//True copy//

(Forwarded/By Order)

SENIOR SUPERINTENDENT