JUSTICE V.K. JAIN, PRESIDING MEMBER

Complainant No.2 before this Commission, namely, Sudhir M. Trehan was the Managing Director of complainant No.1 - Crompton Greaves Ltd.  Complainant No.1 purchased a Mercedes Benz E240 Car on 27.11.2002 for a consideration of Rs.45,38,123/- from OP-3, an authorized dealer/agent of OP-1 Daimler Chrysler India Pvt. Ltd., for the use of its Managing Director. According to the complainants, while launching the aforesaid model in October 2002, the opposite parties elaborated its safety system which incorporated front air bags, side air bags and window bags with crash sensors. According to the complainants, the OPs guaranteed correct operation of the air bags interalia (i) if no stickers or badges were attached and / or (ii) the restraint systems (air bags, seat belts, belts tensioners, child seat and child seat recognition) had not been modified. It is also stated that driver’s air bag is triggered if a front-end impact occurs and if the force of the collision exceeds a predetermined level and that is independent of the side bags and window bags. The features of the air bags are described as under in para 8 of the complaint:-

“Technically speaking, an airbag consists of three parts:(i) the bag itself: which is made of a thin nylon fabric, which is folded into the steering wheel or dashboard or, more recently, the seat or door; (ii) the senor : which is the device that tells the bag to inflate. Inflation happens when there is a collision force equal to running into a brick wall at 10 to 15 miles per hour (16 to 24 km per hour). A mechanical switch is flipped when there is a mass shift that closes an electrical contact, telling the sensors that a crash has occurred. The sensors receive information from an accelerometer built into a microchip; and (iii) the air bag’s inflation system : which reacts sodium azide (NaN3) with potassium nitrate (KNO3) to produce nitrogen gas. Hot blasts of the nitrogen inflate the air bag. The air bag system ignites a solid propellant, which burns extremely rapidly to create a large volume of gas to inflate the bag. The bag then literally bursts from its storage site at up to 200 mph (322 kph). A second later, the gas quickly dissipates through tiny holes in the bag, thus deflating the bag. This whole process does not take more than one twenty-fifth of a second.”

This is also the case of the complainants that Mercedes Benz E class was proclaimed by the OPs to be the safest place on the road.

2.      The vehicle purchased by the complainants came to be involved in a road accident on 17.1.2006 while complainant No.2 was returning from Nasik to Mumbai where he had gone on an official trip. The vehicle, at that time was being driven by one Madhukar Ganpat Shinde an employee of complainant No.1.  According to the complainants, on NH-3, a goods carrier coming from the opposite side, collided head-on with the car, and the impact of the collision was so high that its entire front portion was smashed. The driver allegedly suffered minor injuries while complainant No.2 claims to have suffered grievous injuries in the aforesaid accident and had to remain hospitalized for more than six weeks. This is also the case of the complainants that despite collision, none of the air bags of the vehicle opened and that had the air bags opened in time, complainant No.2 might have suffered less injuries or probably no injury at all.

3.      It is alleged in the complaint that the representation with respect to the correct operation of the air bags provided in the vehicle are false and were made with a malafide intention of luring the customers into buying the vehicle.

          It is also alleged in the complaint that OP-2 has been ordered to pay huge compensation on account of the failure of the air bags of the car to deploy in cases of accidents, in other countries. It is also alleged that the air bags in the vehicle appear to suffer from an inherent defect in the design and in all probability the crash sensors of the vehicle failed to register the impact, which, in turn failed to inflate the bags.

4.      The complainants are before this Commission seeking the following directions to the OPs:-

“(1)    To forthwith replace the vehicle with a new one of similar description which shall be free from any defect.

(2)     To return the sum of Rs.45,38,123/- being the cost of the defective car together with interest 12% from 27.11.2002 till date of realization.

(3)     To pay a sum of Rs.50 crores towards compensation for loss of business and business opportunities of the complainant No.1 due to the non-attendance of business by complainant No.2.

(4)     To pay a sum of Rs.20 crores towards compensation for the pain, injuries, mental trauma, agony, harassment, inconvenience and hardship suffered by the complainant No.2 and his family due to the defects and misrepresentation of the safety features in the impugned car by the opposite parties.

(5)     To pay to the complainants a further sum of Rs.10 crores each towards punitive damages in the above mentioned circumstances.

(6)     To pay interest @ 18% per annum on the above amounts pendent lite until the date of actual remittance.”

5.      The complaint has been resisted by all the three opposite parties. The OPs while taking a preliminary objection that the complainant is not a consumer in terms of the Consumer Protection Act having purchased the vehicle for commercial purpose have claimed that the vehicle in question was involved in a minor frontal under-ride against a container truck. It is alleged that damage was only to the softer parts of the upper front section of the vehicle which has the effect of further reducing the impact shock acting on the occupants. It is alleged that such impact was not of sufficient strength to require the triggering of the ETR of the driver’s seat belt and, there was no need for the front air bag to deploy in this accident since such deployment would not have provided any additional protection to the driver who was not even injured having been sufficiently restrained by the seat belt. It is further alleged that as there was no side impact force acting on the vehicle, none of the side bags or window bags was deployed. Thus, it is admitted in the written version of the OPs that neither the front air bags nor the side and / or window bags had deployed due to the aforesaid accident. It is also claimed that as per the technical report, there was no defect whatsoever and the safety features/system of the vehicle had functioned as designed. It is also stated in the written version filed by the opposite party that as per the technical report, the injuries sustained by the rear occupant could have been avoided by wearing the seat belt. Thus according to the OPs, complainant No.2 was not wearing the seat belt at the time the vehicle met with an accident. It is also stated in the written version that based upon the contact marks found at the left B-pillar and deformation of the back rest to the front passenger’s seat, the rear occupant must have been seated in the rear left seat. It is also stated that even if the front air bags had inflated that could not in any way have protected the passenger sitting in the back seat. It is claimed by the OPs that there is no question of deployment of side air bags in a frontal collision. It is emphasized in the written version filed by the OPs  that an air bag inflates only when impact force/energy exceeds the threshold limit, whereas in this case, the impact force was only minor which was largely absorbed as deformation energy and soft parts in the front, such as bonnet of the car.

6.      As noted earlier, it is an admitted case that neither the front airbags nor the side airbags of the car had deployed as a result of the accident involving the said car.  The case of the opposite parties in nutshell is that the front airbags did not deploy because the impact was not such strong / forceful as would have triggered the ATR of the driver’s seat belt and did not exceed the pre-determined threshold limit.  As regards the side airbags, the case of the opposite parties is that the same could not have deployed in the absence a collision impacting the side of the car.

7.      As noted vide order dated 24.8.2017, neither party had placed on record, by that time, the Manual which was made available to the complainants at the time the vehicle in question was purchased.  The complainant No.1 had not at all filed the said Manual, whereas the opposite parties had filed only the photocopies of a few pages of a document printed after 26.4.2004, which was more than 1 ½ year after this vehicle was purchased by complainant No.1 and therefore could not have been the Manual being made available to the car owners at the time of purchase in November, 2002, when the vehicle in question was purchased by complainant No.1.  The following directions were therefore issued to the parties on 24.8.2017:

“(i)     The complainants shall place on record, within one week from today, the ‘Owner’s Manual’ if any provided to them at the time of vehicle in question was purchased.  If no such manual was provided to them or though it was provided but neither the manual provided to them nor its authentic copy is available with them they shall state so on an affidavit of the Managing Director of complainant No.1.

(ii)      The opposite parties shall also place on record the ‘Owner’s Manual’, if any, which they were providing to the purchasers of Mercedes E-class cars in November, 2002 on the date vehicle was purchased by complainant No.1 from them, within one week from today.  The documents will be supported by an affidavit of the authorized signatory of OP-1 Daimler Chrysler India Pvt. Ltd.”

The opposite party No.1 has not filed any Manual / Owner’s Manual in terms of the direction dated 24.8.2017.  It has rather filed an affidavit, stating therein that it was difficult to find a copy of the Owner’s Manual produced atleast fifteen years ago and they have not succeeded in getting the precise version either in the company or at dealership.  The complainants however, have filed a coloured copy of an Owner’s Manual in respect of the E-class Mercedes Benz car.  The aforesaid manual purports to be printed in January, 2002 and therefore could be the manual being made available to the car purchasers in November, 2002, though the pictures of the car as given in the manual show steering wheel on the left side of the vehicle whereas the steering wheel is provided on the right side in the cars sold in India.

8.      The following are the features of the airbags given in the owner’s manual filed by the complainants:

          Front airbags

          The driver’s and front-passenger airbags are triggered-

• If a front-end impact occurs

• If the force of the collision exceeds a predetermined level

• Independently of the side bags and window bags

The air bags will not trigger in a minor frontal collision.  The seat belts will provide the necessary protection in this case.

Side bags

The side bags are triggered in an accident

• In which there is high lateral acceleration, e.g. a lateral impact

• On the side on which an impact occurs

• Independently of the front air bags

The side bags will not be triggered in a minor side impact.

The rear side bag and the driver’s side bag are triggered on the driver’s side.

Window bags

The window bags are triggered in an accident

• In which there is high lateral acceleration, e.g. a lateral impact

• On the side on which an impact occurs

• If the vehicle overturns, provided this offers the occupants additional protection

• Independently of the front air bags.

The window bags inflate near pillars A to C (arrowed).

9.      It is evident from a perusal of the above referred extract from the Manual that the side airbags are triggered only on the side on which an impact occurs in an accident and that the said airbags are independent of the front airbags.  Since, admittedly, there was no impact on the side of the car in which complainant No.2 was sitting at the time of the accident, the side airbag would obviously not have triggered.  Even otherwise the airbags on the side will not trigger in the event of frontal accident unless the airbags system is such as to trigger every airbag irrespective of the side on which the impact occurs in an accident.  Similarly, window bags which are independent of the front airbags also trigger on the side on which the impact occurs.  Therefore, the window airbags would not have triggered in this case since there was no impact on the sides on which the window bags were provided in the vehicle.

10.    As far as the front airbags are concerned, it is stated in the Manual that they are triggered if (i) a front end impact occurs (ii) if collision happens at a force exceeding a ‘predetermined level’.  The Manual however, does not disclose as to what the said predetermined level was. If the front airbags were not to deploy in every accident resulting in front end impact, the opposite parties, in my view, ought to have disclosed to the buyers as to what the predetermined level necessary to trigger the front passenger airbag were. In the absence of such a disclosure in the Owner’s Manual, as far as the functioning of the front passenger airbags are concerned would be deficient, on account of its not providing the requisite information to the buyer. 

Section 2(1) (r) of the Consumer Protection Act, 1986 to the extent it is relevant provides that unfair trade practice means a trade practice which for the purpose of promoting the sale, use or supply of any goods adopts any unfair method or unfair or deceptive practice including that the goods are of a particular standard and quality.   It is alleged in the complaint that the opposite parties at the time of launching E-Class Model highlighted its safety system, including airbags while proclaiming the vehicle to be the safest place on the road.  Obviously, the opposite parties were seeking to encash upon the safety features of the vehicle, including the airbags provided therein, for the purpose of selling the vehicle.  Therefore, it would be necessary for them to disclose to the buyers as to what the predetermined levels, necessary for triggering the front airbags of the vehicle were.  Highlighting the safety features including the airbags for selling the vehicle, without such a disclosure, in my opinion, constituted an unfair and deceptive trade practice.  It is only the opposite parties which knew what would be the level which would trigger the frontal airbags in the event of an accident.  Therefore, the aforesaid material information ought not to have been withheld while selling the vehicle.  The opposite parties therefore, indulged in unfair trade practice or the purpose of promoting the sale of their vehicle. 

11.    The vehicle in question was inspected by one Mr. Lothar Ralf Schusdzarra, whose technical qualifications comprises Master Craftsman Diploma in Automobiles Mechanics from Germany and he has been an Apprentice in Automobiles.  He is a senior engineer with Daimler AG and claims to have investigated about 700 accidents.  He inspected the vehicle in the premises of the authorized dealer M/s. Auto Hangar. The report co-authored along with Mr. Rolf Stadelmann, to the extent it seems to be relevant, reads as under:

          “From the damage pattern it appears that the MB vehicle had under ride into the opposite vehicle with a frontal overlap of approximately 80%.  This can be seen from the fact that the rigid frame structure of the MB vehicle was mainly intact, probably because it slid underneath the higher chassis of the container truck.  As a result, the damage to the MB vehicle affected mainly the soft, easily deformable sheet metal which acts as a crumple zone in order to reduce impact forces that would otherwise affect the occupants (picture 2).  The front cross member of the MB vehicle was pushed downwards and breaking off at the screw connection (pictures 4 and 5).  Even though the cross member was pushed downwards, the cross member was still attached to the MB vehicle and does not show any deformation in the longitudinal direction and the shock absorbers are still intact (pictures 6 & 7).  The radiator and condenser of the MB vehicle were substantially intact and not squeezed or broken (picture 8).  This confirms that the MB vehicle was involved in an under-ride accident with only minor longitudinal forces acting on the MB vehicle.  None of the rigid chassis members of the MB vehicle were directly impacted in the accident.  The damage was focused mainly on areas consisting of the softer materials, which has the effect of further reducing the impact shock acting on the occupants.

          The front and rear end of the MB vehicle are designed to crumple, thus converting impact energy into deformation energy.  This has the effect of reducing the deceleration force of the MB vehicle as the crumple zone acts as a buffer for the benefit of the occupants in the MB vehicle.  In this accident, only the very soft area of the upper section of the front’s crumple zone was impacted.

          The engine hood of the MB vehicle was pushed back (picture 9).  The font right fender was pushed down in the under-ride and partially ripped open on top (picture 10 and 11).  However, there was no evidence of any frontal impact forces acting on the front right fender.  As a further result of the under-ride, parts of the engine were broken or dented (picture 12 and 13) and the brake hydraulic unit was pushed back, which in turn caused damage to the wheelhouse that is being deformed and ripped open (picture 14).

          The accident caused no damage to the passenger compartment and the integrity of the passenger compartment remains unaffected.  Based on the information available, we believe that this underride must have happened at a very low speed or that one of the vehicles was actually more or less in a standstill position while the other vehicle impacted at low speed”. 

12.    As regards the airbag system of the vehicle, the report reads as under:

          “Electronic sensors constantly measure the deceleration acting on the MB vehicle.  Computerized integration and evaluation of the measured vehicle deceleration determines the change of velocity occurring in the respective direction.  If the calculated change of velocity exceeds certain thresholds, the ETRs and / or the airbags will be triggered.  Whether the threshold for the activation of the individual SRS components is reached depends, among other factors, on the deformation characteristics of the vehicle (s) involved or the object of impact and obstacles involved, and most crucially on the resultant direction of forces.

          During an accident, the general movement tendency of an occupant is always opposite to the impact forces.  Accordingly, such kind of head impact, for a belted front seat occupants is only expected during a collision with very high frontal impact forces.  Therefore front airbags are only triggered in severe frontal collisions.  In situation with lesser frontal impact forces, or where forces are not acting in the vehicle’s longitudinal direction, like underrides, roll-overs, rear or side impacts, the front airbags are not activated, as in these cases, the front airbags would not be providing the occupants with any additional protection.

          Analogous to the front airbags, the side- and window-airbags are triggered, depending on the side of the impact, when a certain threshold is reached.  The primary task of the side bag is to reduce injuries in the region of the thorax in a side-on collision.  The window bag helps to reduce head injuries in a side impact.

          As described hereinabove, the MB vehicle was involved in a minor frontal under-ride against a container truck.  The damage was only to the softer parts of the MB vehicle’s upper front section, which has the effect of further reducing the impact shock acting on the occupants.  Such impact was not of sufficient strength to require the triggering of the ETR, not to mention the driver’s airbag.  This is corroborated by the fact that the driver was not injured and was sufficiently restrained by the seatbelt.  There is no need for the front airbag to deploy in this accident as the airbag would not have provided any additional protection to the driver.  As there was no side impact force acting on the vehicle, none of the side airbags or window bags was deployed”.

13.    A perusal of the photographs forming part of the report of the expert appointed by the opposite party No.1 would show that the vehicle in question had a frontal accidental with another vehicle stated to be a container truck which had a higher chassis.  The photographs clearly show that the accident, which resulted in damage to the front portion of the vehicle was a severe accident and the front portion of the car got badly damaged as a result of the said accident. Though, according to the expert of the opposite parties, it was a underride accident that, in my opinion, would be irrelevant since under-riding happened on account of the chassis of the container truck being at a higher level.  Though, according to the expert, the damage was mainly on the softer components whereas the radiator and condenser remained substantially intact, the photographs leave no reasonable doubt regarding intensity of the accident.  In his affidavit by way of evidence Mr. Madhukar Ganpat Shinde, driver of the car in question inter-alia stated that he was driving the car at the speed of about 80 km/hour when it was suddenly hit head on by the trailer truck coming down a slope from the front side in the wrong direction and that it was a very serious head on collision.  He further stated that the bonnet and the machine part of the car were totally damaged.  Complainant No.2 Mr. Mohan Trehan has in his affidavit inter-alia stated that the front portion of the vehicle got smashed when it was hit by the truck and the collision of the car with the truck was quite impactful.  The photographs fully corroborate the deposition of Mr. Madhukar Ganpat Shinde, driver and Complainant No.2 Mr. Mohan Trehan and therefore, it is difficult to accept that the accident involving the car was not a major accident.  Though it is stated by the expert of the opposite parties that the front airbags are triggered in severe frontal collision, the deposition of Mr. Madhukar Ganpat Shinde, driver and Complainant No.2 Mr. Mohan Trehan coupled with the photographs clearly shows that the accident involving vehicle in question was a severe frontal collision and therefore a major accident.

14.    It is stated in the report of the expert of the opposite parties that the underride must have happened at a very low speed or that one of the vehicles would be more or less in the stand still position while the other would be at a low speed at the time of the impact.  The aforesaid statement is based upon the information made available to the expert but, there is no evidence to prove that at the time of the impact, one of the vehicles was at a very low speed and the other vehicle was in a standstill position or even that both the vehicles were at a low speed at the time the impact happened.  On the other hand, the deposition of Mr. Madhukar Ganpat Shinde, driver and Complainant No.2 Mr. Mohan Trehan clearly shows that the car was moving at a speed of about 80 km/hour at the time the impact took place.  Even otherwise, the car was going from Pune to Mumbai at about 6.00 a.m.  There could be no reason for the car driver to be driving at a slow speed in the early hours of the morning while driving on a highway.

15.    It is stated in the report of the expert that where the frontal impact forces are not acting in the longitudinal direction of the vehicle like underrides or roll-overs the frontal airbags are not activated.  However, no such information is disclosed to the buyer in the owner’s Manual.  If the functioning of the airbags was limited to the aforesaid extent and they were not be activated in the above referred conditions, the opposite parties ought to have disclosed the same to the buyers while selling the vehicles and failure to disclose the said information to the buyers would constitute unfair trade practice within the meaning of Section 2 (r) of the Consumer Protection Act.

16.    For the reasons stated hereinabove, I hold that the frontal airbags of the vehicle were defective and that was the reason they did not deploy even in a frontal collision between the car and a container truck which had resulted in severe damages to the front portion of the car.  I also hold that the opposite parties indulged into acts of unfair trade practice by not giving complete material information to the buyers with respect to the functioning and triggering of the front airbags provided in the car.

17.    Relying upon the decision of the Hon’ble Supreme Court in The Chairman, Thiruvalluvar Transport Corporation Vs. The Consumer Protection Council, I (1995) CPJ 3 (SC), it was contended by the learned counsel for the opposite parties that this Commission does not have the jurisdiction to entertain the complaint involving a motor accident since the said jurisdiction vests exclusively in the Motor Accidents Claim Tribunal.  In Thiruvalluvar Transport Corporation (supra), the complainant was travelling in an omnibus which met with an accident while trying to avert a bullock-cart.  When the bus driver was in a process of over taking the bullock-cart, the bullocks got panicky whereupon the driver swerved the bus to the left and rant into the branches of a tree on the road side, result in damage to the vehicle and the window panes having been smashed.  As the vehicle suddenly swerved, the driver had to apply brakes, as a result of which the complainant who was sitting the centre of the rear seat was thrown in the front and hit against the iron side-bar, sustaining a serious head injury.  Subsequently, he succumbed to the injury.  A complaint on behalf of his legal representatives was filed by the Consumer Protection Council of Tamil Nadu.  This Commission awarded compensation to the legal heirs of the deceased.  Being aggrieved from the order passed by this Commission, the Transport Corporation approached the Hon’ble Supreme Court by way of an appeal.  Allowing the appeal and setting aside the order of this Commission, the Hon’ble Supreme Court observed and held as under:

          “Clearly the Claims Tribunal constituted for the area in question, had jurisdiction to entertain any claim for compensation arising out of the fatal accident since such a claim application would clearly fall within the ambit of Section 165 of the 1988 Act.  The 1988 Act can be said to be a special Act in relation to the claims of compensation arising out of the use of a motor vehicle.  The 1986 Act being a law dealing with the question of extending protection to consumers in general could, therefore, be said to be a general law in relation to the specific provisions concerning accidents arising out of the use of motor vehicles found in Chapter XII of the 1988 Act.  Ordinarily, the general law must yield to the special law.  Besides, the complaint in question cannot be said to be in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided to the deceased.  The expression  ‘service’ as defined by the 1986 Act means service of any description which is made available to potential users and includes the provision of facilities inter-alia in connection with transport.  The accident that occurred had nothing to do with service provided to the deceased.  The complaint in the instant case cannot be said to be in relation to any service hired or availed of by the consumer because the injury sustained by the consumer had nothing to do with the service provider or availed of by him but the fatal injury was the direct result of the accident on account of which he was thrown out of his seat and dashed against the iron handle of the seat in front of him.  We have, therefore, no manner of doubt that this case squarely fell within the ambit of Section 165 of the 1988 Act and the Claims Tribunal constituted thereunder for the area in question had jurisdiction to entertain the same.  As pointed out earlier, the 1988 Act and, in particular, the provisions in Chapter XII thereof creates a Forum before which the claim can be laid if it arises out of an accident caused by the use of a motor vehicle.  That being a special law would prevail over the relevant general law such as the 1986 Act but in the instant case even that question does not arise for the simple reason that the dispute in question did not attract the jurisdiction of the National Commission, whatsoever, and the National Commission has not shown how it had jurisdiction”.

The decision in Thiruvalluvar Transport Corporation (supra) came up for consideration before the Hon’ble Supreme Court in a later decision, Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (dead) through LRs & Ors., I (2004) CPJ 1 (SC), where the opposite party in a complaint filed under the Consumer Protection Act, inter-alia claimed that in view of the provisions contained in Section 90 of the Tamil Nadu Cooperative Society Act, 1983, the Consumer Forum had no jurisdiction to decide the complaints of this nature and issue.  The opposite party, in support of this contention relied upon the decision of the Hon’ble Supreme Court in Thiruvalluvar Transport Corporation (supra).  Rejecting the contention, the Hon’ble Supreme Court inter-alia observed as under:

“Again in Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia through K.S. Ahluwalia and Another, (1998) 4 SCC 39, this Court, having taken note of the background in which the 1986 Act came to be placed on the statute book, observed that the Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary Court system.  The act being a beneficial Legislation should receive a liberal construction.

A bench of three learned Judges of this Court in a recent decision in State of Karnataka Vs. Vishwabharathi House Building C-op. Society and Others, (2003) 2 SCC 412, expressed the view that the 1986 Act was brought into force in view of the long-felt necessity of protecting the common man from wrongs wherefor the ordinary law for all intent and purport had become illusory and that in terms of the said Act,  a consumer is entitled to participate in the proceedings directly as a result whereof his helplessness against a powerful business house may be taken care of.  Referring to the Fair Air Engineers (P) Ltd. case (aforementioned) the Court started that the provisions of the said Act are required to be interpreted as broadly as possible.  On the question of jurisdiction it is stated that the forums under the Act have jurisdiction to entertain a complaint despite the fact that other forum / Courts  would also have jurisdiction  to adjudicate upon the lis.  It is also noticed that the Act provides for a further safeguard to the effect that in the event a complaint involves complicated issues requiring recording of evidence of experts, the complainant would be at liberty to approach the civil Court for appropriate relief.  The learned counsel for the appellant strongly relied on the decision of this Court in Chairman, Thiruvalluvar Transport Corporation V. Consumer Protection Council, (1995) 2 SCC 479.  A deeper look at the facts of that case and question considered therein make it clear that it governs the fact of that case having regard to the “specific provisions contained” in the Motor Vehicles Act, 1988.  In brief the facts of the case are that a person was travelling in an omnibus, the driver of the bus tried to overtake a bullock-cart due to which the bullocks got panicky whereupon the driver swerved the bus to the left and applied brakes.  In this situation the person, who was sitting in the rear seat, was thrown in the front and hit against the iron bar sustaining a serious head injury and subsequently succumbed to the injury.  The legal representatives of the deceased victim did not file claim petition before the Motor Accident Claims Tribunal constituted under the Motor Vehicles Act, 1988.  After expiry of the period of limitation for filing claim petition before the Motor Accident Claims Tribunal, the LRs of the deceased filed a complaint claiming Rs. 20 lakhs before the National Commission.  As can be seen from paragraph 6 of the judgment, the question that arose for consideration was whether the National Commission had jurisdiction to entertain the claim application and award compensation in respect of an accident involving the death of a person caused by the use of a motor vehicle.  Taking note of the fact that the Claims Tribunals constituted under the Motor Vehicles Act, 1988 had jurisdiction to entertain claim for compensation which clearly fell within the ambit of Section 165 of the Motor Vehicles Act, 1988, held that the 1988 Act can be said to be a special Act in relation to claims of compensation arising out of the use of a motor vehicle.  It is observed that the accident occurred had nothing to do with ‘service provided’ to the deceased, if one reads the provision along with the definition of complaint in Section 2(1)(c) and service in Section 2(1)(o) of the 1986 Act.  This Court held that the complaint in that case could not be said to be in relation to any service hired or availed by the consumer because the injury sustained by the consumer had nothing to do with the service provided or availed by him.  That was a case in which it was found that the National Commission had no jurisdiction at all.  That was not a case of additional remedy available before a forum created under the 1986 Act.  In our view the said decisions does not advance the case of the appellant in any way”.

Referring to the above referred decisions of the Hon’ble Supreme Court, the following view was taken by a Division Bench of this Commission in New India Assurance Company Ltd. Vs. Pradeep Kumar & Ors. IV (2014) CPJ 502 (NC):

“10.   From a conjoint reading of the above referred two decisions of the Hon’ble Supreme Court, it appears to us that if the claim filed before a Consumer Forum involves deficiency in the services, hired or availed of by a consumer, the concerned Consumer Forum would have jurisdiction to entertain the complaint even if some other forum also would have jurisdiction to adjudicate upon the controversy involved in the complaint.  In such a case the choice would be with the consumer whether to approach the Consumer Forum or to other Forum having jurisdiction in the matter”. 

18.    It was also contended by the learned counsel for the opposite parties that since the vehicle in question has been disposed of by the complainant without seeking permission of this Commission, the complaint is liable to be dismissed on this ground alone.  In support of his contention, he relied upon the decisions of this Commission in Tata Motors Ltd. & Anr. Vs. Hazoor Maharaj Baba Des Raj & Anr., RP No. 2562 of 2012 dated 25.9.2013, Honda Cars India Ltd. Vs. Jatinder Singh Madan & Anr. RP No. 2622 of 2012 dated 11.10.2013 and Tata Motors Ltd. & Anr. Vs. Manoj Gadi & Anr. RP No. 2321 of 2008 dated 08.5.2014.

          I have perused the decisions relied upon by the learned counsel.  The aforesaid decisions, in my opinion are clearly distinguishable on facts since in the present case, no prejudice has been caused to the opposite parties on account of the complainant having sold the vehicle in question.  Admittedly, the said vehicle had already been inspected by the expert of the opposite parties, even before the complaint was filed.  Therefore, the sale of the vehicle did not prejudicial affect the interests of the opposite parties and the defence available to them in this complaint.

          The learned counsel has referred to the decision of the Hon’ble Supreme Court in Amar Singh Vs. Union of India WPC No. 39 of 2006 decided on 11.5.2011, where the Hon’ble Supreme Court inter-alia reiterated the settled legal proposition that the Courts frown upon the litigants who with intent to deceive and mislead the Court initiate proceedings, without full disclosure of facts and therefore, do not come with clean hands.  However, there is no material on record to prove that the complainants have withheld material facts from this Commission or otherwise not come with clean hands.  The aforesaid judgment therefore, does not help the opposite parties in any manner.

19.    The next question which arises for consideration as to what compensation the complainants are entitled from the opposite parties.  As noted earlier, since there was no impact on the side on which complainant No.2 was sitting, the side airbags and window airbags would not have deployed.  The material on record also shows that even if the front airbags had triggered / deployed, that would not have afforded any additional protection to complainant No.2.  Therefore, he, in my opinion, is not entitled to any compensation.  However, being owner of the vehicle at the relevant time complainant No.1 is entitled to compensation on account of deficiency in the services rendered to it by opposite parties.  Complainant No.1 is also entitled to compensation on account of the opposite party having indulged into unfair trade practice by not making full and complete disclosure with respect to the functioning of the airbags.  Considering all the facts and circumstances, the complaint is disposed of with the following directions:

(i)      The opposite parties No.1 & 2 shall pay a sum of Rs.5.00 lacs to complainant No.1 for the deficiency in the services rendered to it on account of the airbags of the car having not deployed / triggered;

(ii)      The opposite parties No. 1 & 2 shall pay a sum of Rs.5.00 lacs as compensation to complainant No.1 for the unfair trade practice indulged into by them;

(iii)     The Opposite Parties No. 1 & 2 shall, in the Owner’s Manual to be provided to the buyers of their E-Class Cars, as well as on their website, provide adequate information with respect to the deployment / triggering of the airbags of the vehicle, in consultation with AAUI.

(iv)    The opposite parties No. 1 & 2 shall pay a sum of Rs.25,000/- as the cost of litigation to complainant No.1.

(v)     The payment in terms of this order shall be made and the directions contained herein will be complied within three months from today.