BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 75 of 2013.
Date of Institution : 19.3.2013.
Date of Decision : 24.1.2017.
Asha Rani wife of Shri Ramesh Kumar, resident of 133, E-Block, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
1. Padam Motors Private Limited, Opposite Traffic Police Chowki, Hisar Road, Sirsa through its Incharge/ Proprietor.
2. General Motors India Private Limited., Chandrapura Industrial Estate, Halol-389 351, District Panchmahals, Gujarat, India, through its Senior Divisional Manager.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI S.B.LOHIA…………………PRESIDENT
SHRI RANBIR SINGH PANGHAL………..……MEMBER.
Present: Sh. B.L. Narula, Advocate for the complainant.
Sh. R.K. Chaudhary, Advocate for opposite party No.1.
Sh. S.K. Puri, Advocate for opposite party No.2.
ORDER
Case of the complainant, in brief, is that her son Joginder Kumar had purchased a car make Chevrolet Spark Model 2010 from opposite party no.1 on 5.1.2011 with financial help of Magma Fincorp Ltd., Sirsa. The said car was having one air bag of driver. As per column 2-12 (Seats and Occupant protection system) of owner’s manual book, the ops have provided the air bag which was shown located in the centre of the steering wheel. As per manual book, it is revealed that “An air bag is designed to keep your head, neck and chest from slamming into the steering wheel or windshield in a front end crash. It is not designed to inflate in rear end or rollover crashes or most side impact crashes. Your driver air bag is designed to deploy in crashes that are equivalent to or exceed the force of a vehicle travelling to or exceed the force of a vehicle travelling at a speed of 15 to 23 Km per hour (9.3-14.3 mph) crashing into a sold immovable wall.”. The above said car met with an accident with another Swift Dezire Car which was on high speed and was coming from front side but the air bag could not protect the driver as it was not opened. As a result of accident, the driver of said car namely Nitin Wadera son of Shri Krishan Pal Wadera, resident of Sirsa received serious, multiple and grievous injuries on his chest due to non opening of driver air bag. The son of complainant Joginder Kumar who was aged about 26 years and was unmarried also died in this accident on 21.3.2011. A rapat No.736 dated 22.3.2011 was lodged in police station Odhan, District Sirsa regarding this accident. It is further averred that due to act and conduct on the part of ops, the complainant has suffered serious and irreparable loss and Nitin Wadera who was driving the above said car at the time of accident remained admitted in hospital for a long period and huge amount of Rs.6,00,000/- has already been spent on his treatment and even a huge amount is required for his further treatment. These recurring losses have been suffered by the complainant due to the false assurances of the ops which contemplated in committing fraud by them in collusion with each other and also ops have charged huge amount regarding model of Car including air bag, but the complainant could not get fruits of such air bag as per assurances of ops by way of manual book. The act of the ops comes under the deficiency in service as well as unfair trade practice due to which the complainant is suffering serious recurring financial losses, mental tension, pain, shock and harassment etc. and the complainant is legally entitled to get compensation from the ops. The cause of action arose to the complainant for filing of present complaint when the ops have given false and frivolous assurances to the son of complainant as detailed and described above and thereafter on each and every denial of ops to admit the claim of complainant and also on 14.5.2012 when the legal notice was served upon the ops and thereafter about one week back, when the ops have finally refused to admit the claim of complainant. Hence, this complaint for seeking a direction to the ops to pay a sum of Rs.10,00,000/- alongwith interest thereon at the rate of 2% per month with compensation of Rs.50,000/- and litigation expenses of Rs.11,000/- to the complainant.
2. On notice, opposite party no.1 appeared and filed reply raising preliminary objections that complaint is bad for mis joinder of necessary party as the answering op is not necessary party. The car has been manufactured by op no.2 and they are bound by all the term given in the owner’s manual issued by them; that complainant had already filed a complaint titled as Asha Rani Vs. Oiriental Insurance Company in which the answering op was also one of the parties which has been dismissed, as such present complaint is liable to be dismissed and that complaint is not maintainable in the present form as the complainant or alleged injured Nitin Wadera do not fall under the definition of consumer under the provisions of the Act and the provisions of Motor Vehicle Act apply to the present case. On merits, it has been admitted that Joginder Kumar had purchased the above said car from answering op which pertains one driver air bag. However, it has been submitted that manufacturers are bound by the assurances given in column No.2 to 12. If there is any complaint regarding the working of the air bag in the car, the op no.2 can be made responsible for the same. The answering op is not liable for any defect in the car, if any at the time of accident. Remaining contents of the complaint have been denied.
3. Opposite party no.2 appeared and filed detailed reply taking certain preliminary objections that complaint is frivolous and that this Forum may take note that Chevrolet Spark is a mini segment car, having capacity for five persons (including the driver) and at the time of accident there were nine persons travelling from Sirsa to Punjab. There was no proper control over the vehicle, which was being driven beyond the stated capacity of the vehicle. The over loaded vehicle met with an alleged accident due to own wrong and illegal act by the occupants in the vehicle. The prime allegation of the complainant in its complaint is that the vehicle met with an accident and the air bags which were the safety devices in the car did not open during the collision due to which complainant’s son died and Nitin Wadera suffered injuries. The nature of the damages suffered by the vehicle makes it indisputably clear that the accident was not of such nature and parameter so as to bring into effect and deploy the supplemental restraint system consisting of and provided by the airbags. It is the duty of the driver of the vehicle to drive it in accordance with the Motor Vehicles Act, 1988 and not in a way which would violate the law of the land and cause danger to the lives of the passengers. The answering op cannot be held liable for the wrongful acts of the driver of the vehicle and other passengers in the vehicle. The instructions on the subject of airbags in the owner’s manual are very clear and precise and give a clear description of the nature, manner, parameters and considerations upon which the airbags would deploy and come into operation and effect. The airbags come into operation only in certain types of collisions, the nature and manner of which stand clearly defined in the owner’s manual. It is submitted that the accident in question is of such nature or manner upon which the airbags would not come into operation. There has been absolutely no misrepresentation on part of answering op in any manner in so far as functioning of the airbags are concerned. This Forum has no jurisdiction to try and adjudicate the present complaint and provisions of Motor vehicles Act will apply. The present complaint is time barred. The cause of action as per the complaint arose on 21.3.2011. As per the statutory mandate of the Act, the limitation for filing the complaint is two years from the date on which the cause of action has arisen. The complainant has not moved any application for condonation of delay. It may also be noted that the earlier complaint which was filed against Oriental Insurance Company Limited and op no.1 was withdrawn vide order dated 14.6.2012 without any liberty for filing a fresh complaint. It has been further submitted that there is no privity of contract between the complainant and op no.2, hence the complainant does not fall with the definition of consumer under the Act. In Para No.1 of the complaint, the complainant is alleging the factum regarding Joginder Kumar being her son and who died in the accident which occurred on 21.3.2011. Further more in para No.2, the complainant is alleging non opening of the air bag, when the vehicle had met with the accident. The complainant has alleged that due to non opening of the airbag, one Sh. Nitin Wadera suffered injuries. Taking the entire complaint into the consideration, there does not arise any connection/ relevance of the complainant with the injuries suffered by Nitin Wadera and thus no cause of action arises in favour of complainant. On perusal of cover note No.150046 of the Oriental Insurance company, it is clear that the vehicle was insured with Oriental Insurance Company for which said company is liable. The present complaint is not maintainable before this Forum as special statute i.e. Motor Vehicle Act, 1988 has been enacted by the Central Government and the special Tribunal has been empowered to access the loss to the person/ injury/ damages in the road side accident, involving the motor vehicles. Hence as per settled law in case of special statute, it is only the special/ concerned authority who has jurisdiction to entertain and adjudicate the particular issue. With these averments, dismissal of complaint has been prayed for.
4. By way of evidence, complainant has tendered her affidavit Ex.C1, bills of hospitals/ medical for the treatment of Nitin Ex.C2 to Ex.C213, copy of motor claim form Ex.C214, copy of survey fee bill Ex.C215, copy of legal notice Ex.C216, copy of driving licence of Joginder Kumar Ex.C217, copy of letter of Oriental Insurance company Ex.C218, estimate Ex.C219, copy of driving licence of Nitin Ex.C220, treatment record of Nitin Ex.C221 to Ex.C235, copy of rapat Ex.C236 and copy of registration certificate Ex.C237. On the other hand, op no.2 tendered affidavit of Sh. Vivek Singh, qualified engineer and authorized representative Ex.R1, Warranty & Service booklet Ex.R2, copy of provision of under Section 165 of M.V. Act, 1988 Ex.R3, copy of complaint titled as Asha Rani Vs. Oriental Insurance Company Ltd. etc. Ex.R4, copy of order dated 10.1.2014 Ex.R5, copy of rapat Ex.R6 and copy of registration certificate Ex.R7. Learned counsel for op no.1 made a statement that reply filed on behalf of op no.1 be read in evidence.
5. We have heard learned counsel for the parties and have gone through the case file carefully.
6. Admittedly, Joginder Kumar son of the complainant was the registered owner of the car in question and her mother Asha Rani complainant has filed the present complaint with the averments that his son Joginder Kumar who was aged about 26 years and was unmarried died in the accident and she is his real mother and natural heir of deceased Joginder Kumar. Whereas the relief sought for in the present complaint is related to the injuries sustained by driver Nitin Kumar due to non opening of air bag of driver fitted in the steering of the car in question. It is not the case of the complainant that she has incurred the expenses on the treatment of Nitin Kumar due to non operation of air bag of the car in question of his son and therefore, there is no connection of the complainant with the injuries suffered by said Nitin Wadera and it is Nitin Wadera who could have filed petition under the provisions of Motor Vehicle Act, 1988 claiming compensation for the injuries received in an accident out of use of the car in question. Further more, admittedly there were nine occupants in the car at the time of accident against the sitting capacity of five passengers and complainant has failed to prove that driver Nitin was wearing safety belts as per requirement of owner’s manual. Besides this, there are other certain essential Air Bag Safety Rules. Severe injury and death can result from failing to observe these safety rules. The complainant has failed to prove that Nitin was observing these air bag safety rules. Even the affidavit of Nitin Kumar who was driving the vehicle has not been placed on file to prove that he was maintaining proper seating positions as per rules given in the owner’s manual. According to the opposite party No.2, the nature of the damages suffered by the vehicle makes it clear that the accident was not of such nature and parameter so as to bring into effect and deploy the supplemental restrained system consisting of and provided by the airbags. The parameters of deployment of air bag are mentioned in the owner’s manual. The airbags come into operation only in certain types of collisions, the manner of which is defined in the owner’s manual and complainant has failed to prove that airbag did not open due to any manufacturing defect in the car. Moreover, in the warranty and service booklet, it is mentioned that necessary care and caution is taken in manufacturing of the vehicle, however, General motors India Pvt. Ltd. shall not be liable for any loss or damage caused to any article, property, death or disability caused to any human life arising out of fire, electric fault, short circuit, accidental handling or negligent use of the vehicle. The maximum liability in monetary terms shall be restricted to the value of the defective parts and/ or value of services rendered only. The Car in question was insured with the Oriental Insurance Company and said company has approved claim of Rs.1,94,200/- for the damage to the car as is evident from Ex.C28. So, from all angles, the complainant has failed to prove her case.
7. Thus, as a sequel to our above discussion, we find no merit in the present complaint and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties as per rules. File be consigned to the record room after due compliance.
Announced in open Forum. President,
Dated:24.01.2017. Member. District Consumer Disputes
Redressal Forum, Sirsa.
