KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL Nos. 284/2016, 314/2016 & 498/2016

COMMON JUDGMENT DATED: 06.08.2021

(Against the Order in C.C. 859/2014 of CDRF, Ernakulam)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN         : PRESIDENT

SRI.T.S.P. MOOSATH                                             : JUDICIAL MEMBER

SRI.RANJIT. R                                                         : MEMBER

SMT. BEENA KUMARY. A                                     : MEMBER

SRI. K.R. RADHAKRISHNAN                                : MEMBER

APPEAL No. 284/2016

APPELLANT:

The Managing Director, Nippon Toyota, Nippon Motor Corporation Pvt. Ltd., Nettoor P.O., Kochi-682 040.

(By Adv. P. Viswanathan)

                                             Vs.

RESPONDENTS:

1. Shiju Abraham, Vadakkechuvatte House, Ramamangalam P.O., Muvattupuzha.

(By Adv. G. Suresh)

2. The Managing Director, Toyota Kirloskar Motor Ltd., Plot No. 1, Bidali Industrial Area, Dist. Karnataka-562 109.

APPEAL No. 314/2016

APPELLANT:

M/s. Toyota Kirloskar Motor Ltd., Plot No. 1, Bidadi Industrial Estate, P.O. Bidadi, Ramanagara Dist. Karnataka-562 109.

(By Adv. Frijo K. Sundaram)

                                             Vs.

RESPONDENTS:

1. Shiju Abraham, Vadakkechuvatte House, Ramamangalam P.O., Muvattupuzha.

(By Adv. G. Suresh)

2. The Managing Director, Nippon Toyota, Nippon Motor Corporation Pvt. Ltd., Nettoor P.O., Kochi, Karthika, Asoka Road, Kaloor, Kochi-17.

APPEAL No. 498/2016

APPELLANT:

Shiju Abraham, Vadakkechuvatte House, Ramamangalam P.O., Muvattupuzha.           

(By Adv. G. Suresh)

                                             Vs.

RESPONDENTS:

1. The Managing Director, Nippon Toyota, Nettoor P.O., Karthika, Asoka Road, Kaloor, Kochi-17.

2. Managing Director, Toyota Kirloskar Motor Ltd., Plot No. 1, Bidadi Industrial Estate, P.O. Bidadi, Ramanagara Dist. Karnataka-562 109.

COMMON JUDGMENT

SRI.RANJIT.R: MEMBER

         Appeal No. 498/2016 is filed by the complainant in C.C. No. 859/2014 on the file of Consumer Disputes Redressal Forum, Ernakulam, in short, the District Forum and Appeal Nos. 284/2016 and 314/2016 are filed by the 1^st and 2^nd opposite parties respectively.  The District Forum by its order dated 21/11/2014 directed the opposite parties 1 & 2 to pay compensation of Rs. 5 lakhs and costs of Rs.7,500/- to the complainant.  Appeal Nos. 284/2016 and 314/2016 filed by the opposite parties are for setting aside the order of the District Forum and Appeal No. 498/2016 filed by the complainant is to modify the relief granted as replacement of the vehicle involved instead of compensation, as ordered by the Forum.

        2. The complainant initially filed the complaint before the District Forum making only the 1^st opposite party as the sole opposite party in the complaint.  The averments contained in the complaint in brief are as follows.  The complainant purchased a Toyota Innova Car from the 1^st opposite party and its manufacturer, the 2^nd opposite party for a total consideration of Rs. 15,90,000/-.  The complainant was made to believe by the opposite parties that there were two air bags in front portion of the vehicle.  On 23/08/2014 the complainant while trying to avoid a deadly collision with a lorry which came rashly from the opposite direction had swerved the vehicle and that had caused it to hit against a wall directly at Muvattupuzha and the front portion of the car was extensively damaged.  Even then the air bags of the vehicle were not activated which according to him was due to manufacturing defect of the vehicle.  So as per the complaint the opposite parties are liable to compensate the complainant and to replace the defective car with a new one and with such prayers, he approached the District Forum.

        3. The 1^st opposite party filed version denying the allegations of the complainant.  It was contended that the 1^st opposite party was only a dealer of the vehicle manufactured by M/s. Toyota Kirloskar Motor Limited.  who had provided conditional warranty for the vehicle.  Therefore, the complaint without impleading the manufacturer in the party array was not maintainable.  It is also contended that the allegation of the complainant that in spite of a major hit from the side of the vehicle the airbag of the vehicle had not operated, which is against the terms and conditions of the vehicle and the same has happened due to the manufacturing defect of the vehicle, is false.  This allegation is based on a misplaced understanding of the industry standard safety features installed in the vehicle.  The airbags installed in the vehicle are not intended to be activated in every accident but are only intended to be activated in response to a severe frontal impact occurring within the designated area and not when the car is subjected to a side or rear impact or if it rolls over, slides or does not come to station so as to throw the passenger to the front.  The airbags fitted in the vehicles are designed to be triggered by the impact equivalent of a car running head-on into a fixed object like a rigid concrete barrier at a speed of approximately 20 km/hr.  In this case since the wall was a deformable stationary object which shattered on impact and did not have the characteristic of a fixed and rigid concrete barrier, the forward deceleration caused would not be forceful enough to trigger and activate the airbag inflators.  The system controls are intact and the sensors are in working condition even now. 

        4. The manufacturer was subsequently impleaded and arrayed as the 2^nd opposite party.  However, they did not appear nor file any version and was set ex-parte.  Evidence consists of oral evidence of the complainant as PW1 and Exbts A1 to A11 documents were marked.   The commissioner who inspected the vehicle and filed the report was examined as PW2 and his report was marked as Exbt.C1.   The opposite parties did not adduce any oral or documentary evidence.

        5. The District Forum on the basis of the evidence adduced by the parties found that the accident happened on 23-08-2014 and extensive damage was caused to the vehicle.  Even then the airbags did not function.  The opposite parties did not provide the promised airbags in flawless working condition, even after collecting the price for it.  Though the 2^nd respondent manufacturer is primarily liable to compensate the complainant, the 1^st opposite party cannot run away from their shared responsibility considering  the  fact that there was proved collusion between the 1^st and 2^nd respondents in their attempts to prevent  the production of relevant  and material evidence before the judicial forum, by not providing of relevant and material evidence to the commissioner who was deputed to collect evidence regarding the truthfulness of the allegations aired in the complaint.   The accident and the consequential damage caused to the vehicle cannot be attributed to manufacturing defects, especially on considering the fact that the complainant had already used the vehicle for about two years without any complaints.  The non-triggering of the air bags of the car has nothing to do with the accident and the consequential damage that happened.  Therefore, the complainant was found not entitled for replacement of the car as prayed for.  The District Forum on the basis of this finding directed the opposite parties 1 & 2 to pay Rs.5 lakhs as compensation and Rs.7,500/- as costs of the proceedings to the complainant.

        6. Aggrieved by the order passed by the District Forum the complainant has filed Appeal No.498/2016.   Appeal No. 284/2016 is filed by the 1^st opposite party & Appeal No. 314/2016 is preferred by the 2^nd opposite party.

        7. Since all the appeals arise from the same order and matters to be considered are same, all the appeals were heard and considered together.

        8. Heard both parties and perused the records.

        9. The appellant / complainant in Appeal No. 498/2016 had filed an I.A.979/2016 for a direction against the 1^st respondent who is the appellant in appeal 284/2016 to repair and return the vehicle to the petitioner, since the vehicle was kept idle at the yard of the 1^st respondent from 23/08/2014 onwards.

        10. This Commission by its order dated 02/05/2017 directed the 1^st opposite party who is the appellant in Appeal No. 284/2016 to repair the vehicle.

        11. Challenging the above order of this Commission the 1^st respondent filed writ petition WP(C) No. 21104 of 2017 (K) before the Hon’ble High Court of Kerala. The Hon’ble High Court vide order dated 29/06/2017 dismissed the above referred writ petition with an observation that “If the grievance of the petitioner is that evidence to substantiate their case will be lost if the vehicle is repaired, they can certainly move the State Commission for appropriate modification of the impugned order in that regard.  The writ petition, in the circumstances, is dismissed with the above observation”. 

        The 1^st respondent/1^st opposite party in the light of the above observation made by the Hon’ble High Court, though filed a fresh commission application to note the present condition of the vehicle, they did not press the petition and so it was not considered. 

        12. The learned counsel for the Appellant/Complainant pointed out that the vehicle was not yet repaired.   The learned counsel for the 1^st respondent/1^st opposite party agreed to comply with the order within 6 weeks.

        13. Now the only question that arise for consideration is, whether the complainant/appellant in appeal No.498/2016 is entitled to get the compensation and costs as awarded by the District Forum.  The learned counsel for the Appellant/Complainant contended that on 23/08/2014 at                7 a.m while the complainant was driving the vehicle with utmost care wearing seat belt, a lorry came from the opposite direction in a rash manner and to avoid the collision, the petitioner immediately turned the vehicle and the same skidded and the front side of the vehicle was completely damaged.  Life of the petitioner was saved only because he wearing seat belt.  Even though there was major hit from front side, the air bags of the vehicle did not operate.  The fact that air bags of the vehicle did not operate is admitted by the 1^st opposite party.  In the accident petitioner was injured and was treated at Nirmala Hospital, Muvattupuzha.  The non-operation of the air bag is a very serious deficiency and the respondents are liable to compensate the petitioner for the whole loss incurred and also for the breach of the conditions of the respondents specified for the vehicle.  The respondents received the purchase price of the vehicle which includes the cost of the air bag facilities.  Believing the facilities and features offered by the respondent, the appellant had purchased the vehicle.  Ever since the accident which took place on 28/10/2015, the vehicle has been kept idle in the yard of the 1^st opposite party without repairing.  The non-functioning of the air bag which is an admitted fact, is a clear case of manufacturing defects for which the District Forum ought to have allowed the prayer for replacement of the vehicle.  Due to non-replacement of the vehicle and non-repairing of the vehicle much inconvenience and irreparable loss and hardship has been caused to the complainant.

        14. The learned counsel for the 1^st respondent and appellant in Appeal No. 284/2016 would contend that there was no malfunctioning of the air bag.  The air bags installed in the vehicle are not intended to be activated in every accident but are only intended to be activated in response to a severe frontal impact occurring within the designated area and not when the car is subjected to a side impact or if it rolls over, or does not come to station so as to throw the passenger to the front as in this case.  Since the wall was a deformable stationary object which shattered on impact, it did not have the characteristics of a rigid and fixed concrete barrier.  Therefore, the forward deceleration caused would not be forceful enough to trigger and activate the air bag inflators.  The system controls are intact and sensors were working.  The counsel further contended that Exbt.C1 report filed by the expert commissioner was against the basic principles of automobile engineering and there was no scientific and technical analysis which was expected from an expert.  There was no malfunctioning of the air bag.  The air bag inflation is a conditional safety system of the vehicle, operational only under specific circumstances provided by the manufacturer of the vehicle.  The impact of the collision was on the side of the car and was one which could have been sufficiently absorbed by the crash impact absorbing structure as is evident from the fact that there was minimal engine displacement   and the fact that there was minimal cabin damage.  Counsel thus prays for setting aside the order of the District Forum.

        15. We have carefully considered the arguments advanced by the learned counsel for the parties and have perused the records.  The fact that the air bags of vehicle did not operate in the accident is admitted.  It is also not disputed that the accident that occurred on 23/08/2014 was as averred by the complainant.  Exbt.A6 General Diary Entry Certificate issued by Sub Inspector of Police, Muvattupuzha shows that Bonnet, front bumper, head light, radiator, A/C radiator, front body, front glass etc. were damaged.  It also indicates that extensive damage was caused to the vehicle.  The expert commission report i.e Ext. C1 report as well as deposition of expert commissioner PW2 and photographs taken by him marked as Exbt.A5 series would indicate that the accident and consequential impact was severe and the vehicle was extensively damaged.  The unchallenged evidence of PW1 would go to show that the injury sustained to him would have been fatal had he not been wearing the seat belt at the time of the accident.  Despite such a grave impact that happened to the vehicle, the air bags were not inflated.  It is thus proved beyond doubt that the air bags provided did not function at the appropriate time and it became useless/ornamental.  The uncorroborated contentions of the respondent for non-function of air bags cannot be accepted.  They did not produce any evidence either oral or documentary, in support of their contentions.  1^st opposite party /1^st respondent also did not cross examine the complainant who was examined as PW1 or the expert commissioner who was examined as PW2 to substantiate their contentions in the version. The District Forum under these circumstances has rightly found that respondents are jointly and severally liable to compensate the complainant to the tune of Rs. 5 lakhs for the unfair trade practice committed on him by not providing the promised air bags in flawless working condition, even after collecting the price for it.  The compensation of Rs. 5 lakhs ordered by the District Commission is only just and reasonable.    The Forum has also rightly found that the vehicle was not having manufacturing defect. Non-functioning of air bag due to the accident cannot be attributed as manufacturing defect of the vehicle as a whole, so as to have replacement of the car as prayed for by the complainant.  Moreover, he was using the vehicle for 24 months without any problem.

        16. Considering all these facts the impugned order dated 21/11/2014 of Consumer Disputes Redressal Forum, Ernakulam is not interfered with.  However, having regard to the facts and circumstance of this case and taking into account the nature of dispute, we find no justification for saddling the appellant with further cost of Rs. 7500/-.

        In the result appeal 498/2016 is partly allowed and the order against the respondents is confirmed to the extent it relates to the payment of Rs. 5 lakhs as compensation to the appellant /complainant.  The amount is to be paid within one month from the date of the judgment failing which it will carry interest @ 18% per annum till realization.  The other point of the order impugned directing the respondents to pay costs of Rs. 7500/- is set aside.  The 1^st respondent is also directed to repair the complainant’s vehicle within a period of 6 weeks from the date of judgment.  The order of the District Forum is modified to the extent and in the manner indicated above.

        Appeal 284/2016 is partly allowed.  The order directing the appellant and 2^nd respondent to pay an amount of Rs. 5 lakhs as compensation to the complainant is upheld.  The amount is to be paid within one month from the date of the judgment failing which it will carry interest @ 18% per annum till realization.  The other point of the order impugned directing the appellant and 2^nd respondent to pay cost of Rs. 7500/- is set aside.  The appellant is directed to repair the vehicle within a period of 6 weeks from the date of judgment.  The order of the District Forum is modified to the extent and in the manner indicated above.

        Appeal No. 314/16 is partly allowed. The order directing the appellant and 2^nd respondent to pay an amount of Rs. 5 lakhs as compensation to the complainant is upheld.  The amount is to be paid within one month from the date of the judgment failing which it will carry interest @ 18% per annum till realization.  The other point of the order impugned directing the appellant and 2^nd respondent to pay cost of Rs. 7,500/- is set aside.  The order of the District Forum is modified to the extent and in the manner indicated above.

        In Appeal 284/2016 the 1^st respondent/complainant is permitted to obtain release of the statutory amount of Rs. 25,000/- deposited by the appellant at the time of filing the appeal, to be adjusted towards the amount ordered as above, on filing proper application.

        In Appeal No. 314/2016, the 1^st respondent/complainant is permitted to obtain release of the statutory amount of Rs. 25,000/- deposited by the appellant at the time of filing the appeal, to be adjusted towards the amount ordered as above, on filing proper application.

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

T.S.P. MOOSATH   : JUDICIAL MEMBER

RANJIT. R                : MEMBER

                                                                        BEENA KUMARY. A             : MEMBER

                                                                        K.R. RADHAKRISHNAN            : MEMBER

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