1.      Heard Mr. Anil Nag, Advocate, for the complainants and Mr. Vipin Singhania, Advocate, for the opposite parties.  

2.      M.R. Sood and others have filed above complaint for directing the opposite parties to pay (i) Rs.8/ crores-, as the compensation for accidental death of Ajay Kumar Sood; (ii) Rs.2/- crores, as compensation for committing unfair trade practice by opposite parties-2 and 3; (iii) Rs.one crore, as compensation for loss of love and affection; (iv) Rs.5/- lacs, towards medical expenses of complainant-1, who came in shock due to death of his son; and (v) any other relief, which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainants stated as follows:-

(a)     M/s. Toyota Kirloskar Motor Private Limited (a Joint Venture of Kirloskar Group and Toyota Motor Corporation) set up an automotive industry in India and manufacturing cars in the brand name of ‘Toyota’. The opposite parties boast and advertised that the ‘Toyota’ was a world leader in research and development of advance automobile technology. Their mission that motivates ‘Toyota’ in creating an intelligent solutions for today’s mobility challenges and taking responsibility for future generations. They published a brochure on their official website mentioning therein that ‘Toyota Cars’ provides a Global Outstanding Assessment body, Side door impact beams, Head impact protection structure (soft upper interior), Collision test, Large diameter (14”) 4-wheel disk brake, Safety brake pedal design, Dual Supplementary Restraint System (SRS) airbags, 3 Point ELR/ALR seats belts and Collapsible steering column. ‘Toyota’ cars provide for world class safety to deliver reassurance to every passenger. Every new ‘Toyota’ is carefully designed to maximize safety, using computer simulations and real-life crash tests. The body and chassis are built to absorb impact and in case of collision, provide maximum protection of the occupants whilst SRS airbags in place. ‘Toyota Corolla’ comes packed with safety features. Disc brakes on all four wheels ensure that the power of the Corolla also comes with adequate stopping power.     

(b)  Believing upon the representations of the opposite parties in respect of advance engineering, safety measures, quality construction, reliability, after sale services facilities etc., Ajay Kumar Sood (son of complainant-1, husband of complainant-2 and father of complainants-3 and 4) purchased a ‘Toyota Corolla’, Registration No.HP-03 A-7997, on 05.04.2003, for Rs.1039000/- through Pioneer Toyota (OP-1) an authorised dealer of OP-2. After 15 days of its purchase, its rear axle broke. However, at that time the car was in slow speed as such no injury was caused to the persons siting in the car. Pioneer Toyota (OP-1) got it repaired although the deceased insisted to replace the defective car. First free service of the car was done on 03.10.2003. Ajay Kumar Sood, who had a valid driving licence, was going to Rishikesh from Shimla on 10.10.2003, driving above car and Mast Ram Sood, Kuldeep Chand, Shadi Lal and Prem Lal were sitting in it. As soon as the car reached at village Saraswat, district Saharanpur at about 2:45 hours, a truck, Registration No. HR-58-1895, coming from the opposite side, went on its right side and rammed over the car. In this accident, Ajay Kumar Sood received fatal injuries and died on spot. Mast Ram Sood received injuries on his chest, Kuldeep Chand on his head and Prem Lal got fracture in his hand. FIR of the incident was lodged and registered at Police Station Sarasavan, Saharanpur on 10.10.2003 at 9:30 hours as Case Crime No.178/03, under Section 279, 337, 338, 304-A, 427 IPC.  

(c)     The complainants informed OP-1 about the accident, who toy the car to its service centre and gave an estimate for its repair. The complainants informed OP-2 and requested to bear the expenses of repair and pay compensation for the death of Ajay Kumar Sood. Despite various requests for compensation, OP-2 did not respond. Then the complainant-2 gave a legal notice dated 23.12.2003, giving details of the incidents. OP-2, vide letter dated 09.01.2004, demanded requisite papers relating to the incident, which were supplied. OP-2, vide letter dated 12.03.2004, informed that the said collision was an under-ride crash, wherein front right side of the vehicle was run over by the truck bearing Registration No. HR-58-1895. Since impact of the said crash was not frontal, the supplementary restraint system airbags as installed in the car did not deploy. The owner’s manual explicitly indicated of the impact being severe and frontal before deployment of airbags is triggered. There was no manufacturing defect in the vehicle. Ajay Kumar Sood purchased the car with financial assistance of ICICI Bank Ltd. The complainants paid the loan of the vehicle. Then this complaint was filed in September, 2005, alleging unfair trade practice in making false representation and selling defective vehicle by the opposite parties.

(d)     The complainants stated that they had filed a claim petition under Motor Vehicles Act, 1988 against the truck owner/driver/insurer which was pending. Toyota and Kirloskar are companies of high repute. The price of the vehicle is comparatively very high and beyond the reach of a common man as such the vehicle should have more concern to safety and quality. The opposite parties claimed that Toyota car provides for world class safety to deliver reassurance to every passenger and equipped with Dual Supplementary Restraint System airbags. Representation of the opposite parties in respect of “world class safety” was a fraudulent representation for promoting sale of the car, which amount to unfair trade practice. Airbags are designed to protect the head, neck and chest in case of collision. In the present case, despite being head-on collision of the car with the truck, none of the airbags deployed/opened. Due to which, Ajay Kumar Sood received fatal injuries in the accident and other persons present in the car at that time were also injured. The car suffered with inherent manufacturing defects. For committing unfair trade practice, the complainants have claimed Rs.2/- crores as the punitive damages.

(e)     At the time of accident, age of Ajay Kumar Sood was 44 years. He was registered as a Class-A contractor with Public Works Department. He successfully constructed various prestigious projects of national repute in Himanchal Pradesh including High Court’s building in Shimla. Currently the deceased was constructing the buildings for the government corporations i.e. National Hydro Power Corporation, Himanchal Pradesh Housing Board, Himanchal Pradesh Tourism Development Corporation, School Building and the Buildings of religious institutions. The deceased was regularly paying Income Tax. The deceased had very bright future. Due to sudden demise of Ajay Kumar Sood, the family suffered irreparable loss. Looking to the current and future income of the deceased, Rs.8/- crores has been claimed as compensation, for loss of income of the family.

(f)      Due to sudden demise of only son and earning member in the family, complainant-1 came in shock. His condition has become such that he is not even in position to perform his routine daily affairs. Due to mental agony and shock, his life has been shortened. An attendant has been engaged to take his care for 24 hours, apart from his treatment. The complainants claimed Rs.5/- lacs as compensation in this head.   

(g)     Due to sudden demise, Ajay Kumar Sood, Mrs. Rama Sood (complainant-2) lost her husband, Km. Divya aged about 11 years and Master Parth aged about 7 years (complainants-3 and 4), lost their father for ever. They have been deprived from love and affection of the husband or father.  Rs.one crore was claimed for loss of consortium.

4.      M/s. Toyota Kirloskar Motor Private Limited (OP-2) filed its written reply on 11.11.2005, in which, the facts that they are manufacturer of ‘Toyota’ cars and Ajay Kumar Sood purchased ‘Toyota Corolla’ by from M/s. Pioneer Toyota on 05.04.2003, have not been disputed, however, allegation of false representation for promotion of sale of the car, has been denied. OP-2 stated that airbag system consists three basic parts i.e. airbag module, crash sensors and diagnostic unit. Airbag module contains an inflator unit and the light weight fabric airbag. The driver’s airbag module is located in the steering wheel hub and the passenger’s airbag module is in the instrument panel. When fully inflated, the driver’s airbag is approximately of the diameter of a large beach ball. The passenger’s airbag can be two to three times larger, as the distance between the front passenger and the instrument panel is more than the distance between the driver and the steering wheel. The crash sensors are located in front of the vehicle. The sensors are activated by force generated in significant frontal crashes. The sensors measure deceleration which is the rate at which the vehicle slows down. The airbags are not designed to activate during sudden braking or while driving on rough or uneven pavement. In fact, the maximum deceleration generates in the severest of braking, which is only fraction necessary to activate the airbag system. The diagnostic unit monitors the readiness of the airbag system. The unit is activated when the vehicle’s ignition is turned on. If the unit identifies any problem, it give a warning light alerts, then the driver to take the vehicle to an authorised service centre for examination of the airbag system. When a crash occurs, the vehicle rapidly decelerates, while its structure absorbs the majority of the crash force. Unbelted occupants continue to move forward at the vehicle’s original speed until the vehicle’s interior (the steering wheel, instrument panel, windshield etc.) stops their movement. The belted occupants come to a more gradual stop by being secured to the vehicle’s structure. The airbags are Supplementary Restraint System and are designed to work in combination with seat belts. The airbags supplement the safety belt by reducing the chance that the occupant’s head or upper body will strike some part of the vehicle’s interior. They help in reducing the risk of serious injury by distributing crash forces more evenly across the occupant’s body. When there is a severe frontal crash that requires the frontal airbag to deploy, a signal is sent to the inflator unit within the airbag module. An ignitor starts a reaction, which produces a gas to fill the airbag, making the airbag to deploy through the module cover. The airbags inflate to prevent occupants from hitting the interior of the vehicle. The frontal airbags deploy during severe frontal crashes. The frontal airbags do not offer protection in rollovers, side impact, rear end or under-ride crashes. In an under-ride crash, the vehicle goes partially or wholly under a truck or trailer, increasing the likelihood of death or serious injury to the occupants of the vehicle. The working system of the airbags has been given in detail in the Owner’s Manual (page 44) of the car as handed over at the time of its purchase. There was no previous complaint in respect of warning light alerts of the airbag system before the accident. After receiving information in respect of the accident in question, OP-2 appointed an Investigator for conducting investigation the manner of the accident in order to find out the alleged defects in Supplementary Restraint System. The Investigator collected the photographs taken by the police authority during investigation and insurance authority and submitted its report that the impact was angular and collision was on the right upper part of the front area. The Corolla was run over by the truck from front right side and the driver was not bearing the seat belt. The collision inter-se subject vehicle and the truck bearing Registration No. HR-58-1895 was an override collision from right angle of the Corolla. The truck inflicted and damaged the front right side pillar and roof of the Corolla, which was stuck on the head of the driver. The fatality occurred as a result thereof. Such collision, being under-ride and impact being other than the frontal, it did not cause the activation of crash sensors and consequent inflation of the inflator unit within the airbag module. There was no manufacturing defect in Supplementary Restraint System. The OPs accordingly replied the legal notice of the complainants. The rear axle of the car was not broken rather there was problem in the twist beam of the rear axle system which was replaced on 03.05.2003. Regular free service was done on 03.10.2003, after run of ten thousand KM. The OPs had no knowledge of the business and income of the deceased as well as purchase of the vehicle on the loan. The vehicle was toy by OP-1 after accident and it remained there till 23.09.2005, when it was sent to Automobile Research Association of India at Pune, Maharashtra, vide order of this Commission dated 21.09.2005. The OPs did not make any false representation in order to promote sale of the vehicle and have not committed any unfair trade practice. There was no defect in the vehicle as such, the OPs are not liable for any compensation. The truck bearing Registration No. HR-58-1895 caused the accident, going on its right side and the complainants have already instituted a case against it for compensation under the Motor Vehicles Act, 1988 and the complaint is not maintainable.

5.      The Complainants filed Rejoinder Reply, Joint Affidavit of Evidence of M.R. Sood & Mrs. Rama Sood and documentary evidence. The opposite parties filed Affidavit of Evidence of Perminder Singh (Managing Director of M/s. EM PEE Motors Limited, OP-1) and Affidavit of Evidence of and R. Sabari Manohar (the Manager of OP-2) and documentary evidence. Both the parties have filed written arguments.  

6.      On the application of the complainants, this Commission, vide order dated 21.09.2005, called for a report from an Expert of Automotive Research Association of India, Pune, Maharashtra, in respect of exact cause of accident, who after examination of the vehicle, the photos of the vehicles of the accident site at the time of the accident and post mortem report, submitted report dated 15.05.2006 stating as follows:-

“1.     From the photographs of the accident site, it seems that the truck went to the wrong side and hit the car, which went under the truck (angular under-run - i.e. the driver's side has under run the truck). Because of this, the 'A' Pillar has Intruded rearwards and inwards and reached upto the head rest of the driver. This has severely affected the survival space of the driver.

2.      As seen from the Post Mortem report, the major cause of death is attributed to head injury. This could only be due to rigid parts of the vehicle hitting the head, e.g. 'A' pillar. There is also evidence of roof caving in and it could have crushed the driver's head.

3.      From examination of the seat belt & its anchorage, it seems that the driver was not wearing the seat belt, while the co-driver seems to be wearing. This is also confirmed by the Post Mortem report, which does not mention any bodily injuries on account of seat belt, (whereas chest- injuries have been reported in the case of co-driver).

4.      However, in our opinion, wearing/non-wearing of seat belt would not have helped survival of the driver because in this case the structure has moved towards the driver as well as the roof has caved in, which has happened because of under run of vehicle.

5.      According to the Toyota manual, "The SRS airbags will deploy if the severity of the impact is above the designed threshold level, comparable to an approx. 30km/h (18mph) collision when impacting straight into a fixed barrier that does not move or deform.

If the severity of the impact is below the above threshold level, the SRS airbags may not deploy.

However, this threshold velocity will be considerably higher if the vehicle strikes an object, such as a parked vehicle or sign pole, which can move or deform on impact or if it is involved in an under ride collision (e.g. a collision in which the nose of the vehicle "underrides" or goes under the bed of a truck, etc)".

The above holds good in the present case, which is an under run case.

Conclusion:

 “Basically the accident is under run type, in which the ‘A’ pillar has moved literally over the driver. This is the basic cause of fatality. Wearing of the seat belt or deployment of the airbag could not have prevented the fatality. However, there is no evidence that the driver was wearing seat belt unlike in the case of co-driver and the airbags have not been deployed”.

7.      I have considered the arguments of the counsel for the parties and examined the record. The complainants have filed photographs of the site of the accident (Annexure-C-4), from which it is proved that the truck bearing Registration No. HR-58-1895, which was loaded with steel rods, went on its right side and hit the car ‘Toyota Corolla’ on its frontal right side. On the complaint of Kuldeep Chand, who was present in the car at the time of accident and received injury, FIR of Case Crime No.178/03, under Section 279, 337, 338, 304-A, 427 IPC of the incident was lodged at Police Station Sarasavan, Saharanpur on 10.10.2003 at 9:30 hours, in which, he had mentioned that the truck had come from Saharanpur side in a very high speed and rammed over the car going on wrong side. Expert of Automotive Research Association of India in its report dated 15.05.2006 found that the car went under the truck (angular under-run i.e. the driver’s side had under run the truck). Because of this, the “A” pillar had intruded rearwards and reached up to the head rest of the driver. From examination of the seat belt and its anchorages, it seems that the driver was not bearing the seat belt. As seen from the post mortem report, the major cause of death is attributed to head injury. This could only be due to rigid parts of the vehicle hitting the head, e.g. “A” pillar. There was also evidence of roof caving in and it could have crushed the driver’s head.   

8.      The Expert of Automotive Research Association of India in its report dated 15.05.2006, did not find any manufacturing defect either in the car or in airbags system. According to the report dated 15.05.2006 as the car went under the truck (angular under-run i.e. the driver’s side had under run the truck) as such there was no severe frontal crash to activate airbag system. The complainant has not filed any objection to the expert report dated 15.05.2006.

9.      The complainants rely upon the brochure, in which, it has been mentioned that ‘Toyota Corolla’ comes packed with safety features. Like the GOA (Global Outstanding Assessment) body, which comprises a high-integrity cabin with front and rear crumple zones. SRS airbags inflate to protect driver and front passenger. The complainants submitted that in the brochure, the OPs made publicity of SRS airbags inflate to protect driver and front passenger, while in present case, airbags did not deploy at the time of accident. Only in order to promote sale of the car, false representation was made, as such, it was an unfair trade practice. While according to the OPs, the airbags are Supplementary Restraint System and are designed to work in combination with seat belts. The airbags supplement the safety belt by reducing the chance that the occupant’s head or upper body will strike some part of the vehicle’s interior. They help in reducing the risk of serious injury by distributing crash forces more evenly across the occupant’s body. When there is a severe frontal crash that requires the frontal airbag to deploy, a signal is sent to the inflator unit within the airbag module. An ignitor starts a reaction, which produces a gas to fill the airbag, making the airbag to deploy through the module cover. The airbags inflate to prevent occupants from hitting the interior of the vehicle. The frontal airbags deploy during severe frontal crashes. The frontal airbags do not offer protection in rollovers, side impact, rear end or under-ride crashes. In an under-ride crash, the vehicle goes partially or wholly under a truck or trailer, increasing the likelihood of death or serious injury to the occupants of the vehicle. The working system of the airbags has been given in detail in the Owner’s Manual (page 44) of the car as handed over at the time of its purchase.

10.    In the brochure the picture of airbag deployment has been shown, while detail working system of the airbag has been giving in Owner’s Manual. As such neither false representation nor manufacturing defect in the car or the airbag system has not been proved.

11.    There is no allegation that the accident occurred due to any manufacturing defect in the vehicle Toyota Corolla. Motor Accident Claim Tribunal, Shimla, vide its judgment dated 03.10.2008 passed in MCA Case No.4-S/2 of 2003-04 Smt. Rama Sood and others Vs. Shri Chavan Singh and others held that the accident was cause due to rash and negligent driving of the truck bearing Registration No. HR-58-1895 and awarded compensation to the complainants. This judgment has been upheld in FAFO No.80 of 2009 Smt. Rama Sood and others Vs. Shri Chavan singh and others, by High Court of Himanchal Pradesh, vide judgment dated 01.01.2016 and compensation has been enhanced.

O R D E R

In view of the aforesaid discussion, the complaint is dismissed.