M/s Nissan India Pvt. Ltd. (opposite party No.1) is the manufacturer of the car, Nissan Terrano. Opposite party No.2 is the dealer of Nissan Terrano car and also runs a service centre for Nissan cars. Opposite party No.3 (Automobile Research Association of India) is the research institute and authorized agency for testing and verifying the vehicles and engines used for both automotive and non-automotive applications.

2.       It is the case of the complainant that in November, 2014 opposite party No.1 advertised its car Nissan Terrano as a car with advance safety measures such as air bags and anti-locking braking system (ABS). Being impressed with these advanced safety measures as claimed by opposite party No.1 the complainant on 31.10.2014 purchased a Nissan Terrano DCI XL option with car registration No.KL-07-CC-5500 from the authorized dealer of opposite party No.1, namely, opposite party No.2 on payment of Rs.11,22,232/- vide invoice dated 31.10.2014. The car was equipped with driver and front passenger air bags and anti-locking braking system.

3.       It is further the case of the complainant that after initial few months of hassle free driving, the complainant realized that as and when the brakes were applied to the car moving at the speed of 50-60 kms./hr., the car tended to swerve to one side. The complainant brought the aforesaid defect to the attention of the service centre run by opposite party No.2. However, no corrective action was taken by the opposite party No.2. Instead staff of opposite party No.2 assured the complainant that the vehicle was equipped with all safety standards.

4.       On 28.3.2017 while the complainant was driving the subject car from Ernakulam to his native place Pala, at about 11.00 am the complainant met with a serious accident because of fault of a truck driven on the wrong side of the road. The said truck with its headlights on at high intensity while attempting to overtake another car swerved towards the wrong side of the road. The complainant was completely blinded by the headlights of the fast approaching truck. In order to avoid the accident the complainant swerved the car to the other side and applied the brakes as hard as possible. However, due to faulty ABS the vehicle did not come to a total halt and instead hit a wall nearby before turning turtle and coming to a stop. Not only did the ABS falter, the air bags which were supposed to protect the passenger and driver in the front seat, were not released. As a result of accident, severe damage was caused to the car but the complainant escaped serious injuries because he was wearing the seat belt.  

5.       The complainant thereafter lodged a complaint with Pala police s tation, Kerala. The complainant thereafter approached nearby service station of Nissan operated by opposite party No.2 with the damaged car. The main concerns apart from the damage to the car were (a) Faulty ABS mechanism that failed to stop the car resulting in collusion with the wall. (b) Non-deployment of driver side air bag as a result of accident. The complainant also intimated the accident to the insurance company and filed claimed which is yet to be settled.

6.       It is alleged that after the accident the complainant collected information regarding various recall of cars by Nissan Terrano globally for faulty air bags and was able to get the following information: -

7.       According to the complainant the opposite party No.1, Nissan Terrano has indulged in the unfair trade practice by making wild claims about security features in the car and selling the car without perfect safety features which obviously is hazardous to the life and limb of the driver and the passenger. It is alleged that the unfair trade practice adopted by the opposite party No.1 is likely to impact all Indian consumers who had purchased Nissan Terrano car.

8.       On the aforesaid allegations consumer complaint was filed with following prayer: -

“(i).   Direct OPs to recall all units of its Nissan Terrano Cars with defective Airbags in India including the complainant’s car forthwith;

(ii).    Direct the Ops to pay compensation of Rs.1,00,00,000/- (Rupees one Crore) to the complainant for supplying goods which are hazardous to life and safety to the Complainant;

(iii)    Direct the OPs to pay Rs.2,00,00,000/- (Rupees Two crores) to the complainant for mental strain, agony, psychological trauma caused by the non-deployment of safety measures in the accident that resulted in near death experience of the complainant;

(iv).    Direct the OPs to pay Rs.75,00,000/- ( Rupees Seventy Five lakhs) for loss of earnings due to non-availability of car since the accident and the deficiency in service alongwith defective good not being rectified/replaced till date and;

(v).     Direct the Ops to pay compensation of Rs.50,00,000/- (Rupees Fifty lakhs) each to all the affected consumers of OP-1 for supplying defective goods that are hazardous to the life and safety of the complainant and all affected consumers;

(vi).    Direct the OPs to pay Rs.10,00,000/- to the complainant and all such like consumers for deficiency in service by failing to provide reparative and corrective care and service with regard to the persistent default in the ABS system

 (vii).  pass such further or other orders as this Hon’ble Commission may deem fit and proper to render justice.”

9.       I have heard learned counsel for the complainant on admission. On bare reading of the complaint it is clear that the complaint has been filed on the allegations of the complainant has been sold a the subject car by misrepresenting that it had advanced security features i.e. anti-locking braking system and air bags for the driver and the front passenger whereas those safety features provided in the car were defective and lacking. Undisputedly, cost of the car is Rs.11,22,232/- and no serious injury was caused to the complainant due to the accident. Despite that the complainant has sought highly disproportionate compensation to the tune of Rs.1 crore for supplying the car hazardous to the life and safety of the complainant, Rs.2 crores for mental agony, stress and agony and psychological trauma caused due to non-deployment of the safety measures and Rs.75 lakhs for loss of earning due to non-availability of the car. From the above facts it is evident that the complainant has filed the instant complaint with inflated claim with a view to increase the pecuniary value of the case in order to bring it within pecuniary jurisdiction of National Commission.

10.     In order to meet this argument, learned counsel for the complainant has submitted that this is not an individual claim but the complaint has filed this complaint as a class action to raise the cause of other consumers who might have purchased similar defective Nissan Terrano car. In support of his contention learned counsel for the complainant has drawn my attention to clause (i), (v) & (vi) of the prayer clause and submitted that complaint has been filed to seek relief on behalf of similarly placed complainants. Counsel for the complainant when asked to show the evidence which may indicate that several other defective Nissan Terrano cars have been sold by the opposite party No.1, the counsel for the complainant has drawn my attention to the abovementioned chart giving summary of recall of cars by opposite party No.1 globally.

11.     On perusal of the chart containing summary of recall of cars by the opposite party as detailed in para 6, we find that so far as cars sold in India are concerned, during June 2013 to March 2015, 12000 Nissan ( Micra Sunny sedan) were recalled and 9000 cars of the same model were recalled in October 2014. Thus, it is clear that no Nissan Terrano car has been recalled by the opposite party for some defect in the cars.  So far as Nissan (all models ) cars recalled in May 2015 and in March 2017 are concerned, the allegations in the complaint do not indicate as to where those cars were manufactured.  Merely because certain models of Nissan cars were recalled by the manufacturer, this by itself, does not mean that the recalled cars suffer from manufacturing defect relating to deployment of air bags or defect in anti skid breaking system.  Thus, in my view, this is not a fit case in which prima facie it can be assumed that the opposite party manufacturer has sold defective Nissan Terrano cars in India.

12.     Learned counsel for the complainant during the course of arguments in order to support his allegation that breaking system of the car was defective and the air bags despite the accident did not deploy, has drawn my attention to surveyor report of independent surveyor P S Dharmarajan dated 22.04.2017.  On reading of the report, it is clear that survey was conducted at the instance of the complainant.  Clause 7 of the surveyor report deals with cause and nature of the accident.  Said clause is reproduced as under:

“7.        Cause and Nature of Accident

    It is reported that on 28.03.2007 the subject damaged vehicle was proceeding through Vellichira, the spot of accident, while giving passage to an oncoming vehicle it accidentally lost control, then hit on to wall, turn around rolled on the road and fell upside down, thereby sustained damages to it.  Cause of accident appears to be genuine and tallying with the nature and extent of damages.”

13.     On reading of the above, it is clear that complainant while reporting about accident to the surveyor did not mention that anti-locking braking system of the car faltered or that air bags did not deploy.  Thus, the independent surveyor report is also of no avail to the complainant.

14.       In view of the above facts and circumstances of the case, I do not find it a fit case for grant of permission to pursue the complaint as class action under section 12 (1) ( c ) of the Consumer Protection Act, 1986. Request is, therefore, declined.  On bare reading of the complaint, it is clear that compensation claimed by the complainant is highly unreasonable and exaggerated.  It appears that complainant has made prayer for highly unreasonable compensation with a view to defeat the hierarchy of the pecuniary jurisdiction. Therefore, I am of the view that issue raised in the complaint does not fall within the pecuniary jurisdiction of the National Commission.  Complaint is accordingly rejected with the observation that complainant, if he so desires, may approach the consumer Fora having pecuniary jurisdiction on the same cause of action.