DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.45/2022

Shri Shanti Lal Chororia

S/o Shri Sagarmal

R/o House No. 208

Village Rajpur Khurd

PS- Maidangarhi

New Delhi-110068.                                                        .…Complainant

                                                  VERSUS

Tata Motors Limited

Bombay House

24, Homi Mody Street

Mumbai-400001.

Manager/Authorised Officer

Go Auto Pvt. Ltd.

A 231, Okhla Industrial Area

Phase-1, New Delhi-110020.                                          .….Opposite Parties

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Present:      Adv. Vinod Kumar for complainant.

Present:      Adv. Anant Singh, along with Adv. Shashank Shekher  proxy counsel on behalf of Adv. VIrat K Anand for OP.

ORDER

Date of Institution:28.02.2022

Date of Order       :18.07.2024

President: Ms. Monika A Srivastava

          Complainant has filed the present complaint seeking direction to replace the defective car; issue direction to replace the defective part of the car and redress the problem; award compensation of Rs.15,00,000/-for mental agony and physical harassment. OP-1 is Tata Motors Ltd. and OP-2 is Go Auto Pvt. Ltd.

1. It is stated by the complainant that he has purchased a TATA NEXON 1.2P SUV from the authorized dealer Go Auto Pvt. Ltd. vide invoice dated 26.06.2021 annexed as annexure CW1/1.  The said car is registered with the Transport Department Delhi, the car is hypothecated with HDFC Bank Ltd.  and insured with Liberty General Insurance.

2. The complainant states that is using this car for his person use/purpose since its purchase. It is stated complainant himself was driving the vehicle and going from Jalore to Jaipur in Rajasthan.  The complainant was alone in the car.  When the car crossed Raipur Toll Plaza and just after 400 meters, from there, a cow suddenly came in the front of the car of the collided with the card.  At that time the car was moving approximately 80 km. per hour.

3. The complainant states that he is an experienced driver and has been driving vehicle for the last 4-5 years and this was the first accident.  It is stated that the car was badly damaged from the front to left side.  In this fatal accident, the Air Bags of the car did not work at all.  The complainant has taken pictures of the car after the accident. It is stated that the pictures on record categorically shows that the car was badly damaged from the front side and in the severe frontal collision of the car, the air bag safety system failed to work due to faulty safety system. The pictures are annexed as annexure CW1/2 (colly).

4. Complainant has further stated that he was highly disappointed that having paid for safety features, and also that the SUV is known for its safety measures, the airbags of the car failed to work.  The mechanism of Air-bags fixed in the car is for the safety of the driver and passengers of the vehicle and due to this safety feature, a premium price has also to be paid by the purchaser.

5. It is further stated that complainant had hired a Trolley Van and sent his car to M/s Mudgal Auto Service Centre, Ajmer for servicing and repairing of the car.  The complainant filed copy of the invoice dated 06.10.2021 of the crane service provider CW 1/3. Copy of the job card and tax invoice dated 07.10.2021 is CW1/4.  Copy of the insurance claim documents filed with OP is CW1/5.

6. Further the complainant raised its grievances for non-working of airbags before M/s Mudgal Auto Service Centre, Ajmer and though has nothing has been done on airbags, other required repairing works were done.

7. Complainant further stated that his grievances for non-working of Air Bags was not attended at M/s Mudgal Auto Service Centre, Ajmer, the complainant approached the Go Auto Pvt. Ltd. OP-2 who has refused to attend and redress the non-working of the Air bags of the car.  OP-2 has also defaulted in providing service to its consumer/customer by refusing the service to find out the fault in the car.

8. The Tata Nexon car is stated to be fitted with dual Air bags for the safety of driver and co-passengers and the car is also having premium price due to its safety features.  The safety features of the car was/is defective and the Air Bags was stated to be fitted in the car failed to work at the time to accident.  It is stated that the non-working of air bags at the time of accident lead to serious injury to the driver and passengers and could also result in the death of the driver and passengers of the car.  A copy of brochure of specifications of the car as published on the website of OP-1 is CW1/6.

9. The complainant states that he feels cheated when having raised its concern, before OP-1 and 2, for non-working of the air bags mechanism at the time of accident, no one pay heed to the same. Getting no solution from OP-1 and 2, complainant sent a legal notice dated 06.12.2021 annexed as annexure CW1/7 to replace the defective part of the car and also provide compensation for mental agony and physical harassment in the hands of the OP-1 and 2.

10. The said legal notice was duly served on OP-1 and 2.  Copy of track report is annexed as CW1/8 but no action was taken on the legal notice dated 06.12.2021.

11. The complainant further stated that he approached the OP-2 through letter dated 31.12.2021 (posted on 04.01.2022) annexed CW1/9 requesting to check the reason for non-working of air bags and remove the difficulty thereof.  The courier was duly received by the OP-2 but no action has been taken.

12. Complainant has further stated that on purchasing of such a premium vehicle where the safety system claimed to be fitted, a reasonable expectation of the complainant would be the deployment of the frontal airbags and working of such air bags in such sever frontal collusion.  Therefore, non-working of the airbags in such a collusion categorically shows that there is manufacturing defect in the vehicle or the airbags were clearly defective and the safety system fitted in the vehicle failed to work.

13. Complainant has further stated that OP-1 and 2 has conducted unfair trade practice by misleading him to believe that their products are having high safety features but in reality the air bags did not work at the time of accident.  There is a manufacturing defect in the car and the company had neither given any reasoning nor investigated the issue.

14. Complainant has placed reliance on the judgment of the Hon’ble Supreme Court in Civil Appeal No.3001 of 2002, Hyundai Motor India Limited Vs. Shailendra Bhatnagar held that a punitive damage can be awarded in the event the defect is found to have the potential to cause serious injury or major loss to the consumer, particularly in respect of safety features of a vehicle.

15. The OPs not only failed to provide the safety standard which was advertised and claimed by the OPs but also failed to provide the service on request of the complainant, therefore, the OPs liable to pay exemplary damages to the complainant as claimed by the complainant.

16. The right of OP-1 to file reply was closed. OP -1 in its written submissions has stated that the OP that the vehicle in contention is of the highest quality with 5-Star rating in the Global NCAP crash test. Hence by no stretch of imagination, it can be stated that the said vehicle was defective in terms of the safety measures which have been installed in the said vehicle.

17. It is stated that complainant has admitted in Para 6 of his complaint that:

In this accident no other person or any other vehicle got harmed/damaged.  The complainant safely remained inside the car due to locking of the seat belt.  The complainant was highly disappointed that having paid for safety features, and also this SUV is known for its safety measures, the airbags of the car failed to work.  Non-working of the airbags is manufacturing defect and malfunctioning of the parts used in the vehicle.”

and no loss or injury was caused to the complainant due to the safety measures installed in the said vehicle including the seat belt. This further goes to show that the said vehicle has no manufacturing defect qua the safety measures installed in the said vehicle and the said safety measures are of the highest quality.  It is stated that in terms of these pleadings by the complainant, it is clear that there was no deficiency in service from OP-1 to the complainant as there was no injury or harm caused to the complainant.

18. It is further stated that amount of visible damage to the vehicle is not a correct indicator for airbag deployment and airbags are triggered only when there is a collision severe enough to trigger the airbags.  It is also submitted that seat belt offers adequate occupant protection in the low severity collisions and airbags are triggered only when there is collision severe enough to trigger the airbags.  In the present case, the complainant has not placed on record a single iota of evidence which would show that the collision was severe enough to deploy the airbags, in fact, as stated earlier the complainant has admitted that seat belt installed in the said vehicle was an adequate safety measure as no injury or loss was caused to the complainant or any other person. OP has placed reliance on the judgments by the Hon’ble SCDRC, Punjab in Hyundai Motors Ltd. Vs. Dr. Bhim Sain Garg FA No.652/2019, R. Baskar Vs. D.N Udani IV (2006) CPJ 257 (NC), Vikram Bajaj Vs. Hind Motors Ltd. 2009 (II) CLT 670, Maurti Udyog Ltd. Vs. Hasmukh Lakshmichand by Hon’ble NCDRC reported in III (2009) CPJ 229.

19. OP1 has relied on the judgment of Classic Automobiles Vs. Lila Nand Mishra & Ors 2010(2) CPJ 235 (NC), wherein has been held as under: -

Para 14. The onus to prove that there was manufacturing defect was on complainant/respondent No.1.  We agree with the contentions raised by the learned counsel for the petitioner that complainant/respondent No.1 failed to prove that there was any manufacturing defect by producing any cogent evidence.

20. It is stated by the OP-1 that in catena of judgments it has been held that deployment of airbags in road accidents would depend on the severity and the intensity of the accident which can only be proven through expert evidence.  Further, it has been held in various cases that the onus to prove the above lies upon the party alleging the same i.e. complainant.  However, in the present matter there is no evidence of expert as envisaged under Section 38 (2) (c) of Consumer Protection Act, 2019 or otherwise which could prove the allegations as levelled by the complainant with regard to the deployment airbags.

21. It is stated that the present complaint is not maintainable as the same is without any cause of action and hence liable to be dismissed on account of contractual obligations as envisaged in warranty terms and conditions of vehicle which are binding upon the complainant as well as OP-1.  The terms and conditions of warranty which are binding upon the complainant as well as the OP-1 the OP-1 has performed its obligations as envisages in clause 2 of the terms and conditions of the warranty which reads as under:-

“……Our obligation under this warranty shall be limited to repairing or replacing, free of charge, such parts of the car which, in our opinion, are defective, on the car being brought to us or to our dealers within the period.  The parts so repaired or replaced shall also be warranted for quality and workmanship but such warranty shall be co-terminus with this original warranty”.

22. It is stated that OP-1 has been performing its part of contractual obligations by carrying out the necessary repairs/replacement of parts as such, the complaint is without any cause of action. It is stated that in the present complaint the complainant has only made bald and vague averments with respect to alleged manufacturing defects.  The complainant admittedly not being an expert in the field of automobiles, the allegations of the complainant cannot be relied upon and should be out rightly rejected.

23. It is stated that complainant has not filed any documentary proof in support of her contentions to who that the vehicle really had any manufacturing defect. No expert evidence has been adduced by the complainant to establish any manufacturing defect in the vehicle in question. 

24. OP-1 has also placed reliance on Mahindra & Mahindra Vs. B.G. Thakur Desai 1993 (1) CPR 170, Indian Oil Corporation Vs. Consumer Protection Council, Kerala (1994) 1 SCC 397, Maurti Udyog Ltd.Vs. Nagedender Prasad Sinha II (2009) CPJ 295 Hind Motors India Ltd. Vs. Balwinder Singh Sood , Hind Motors India Ltd. Vs. K.K. Kalsi, Hind Motors India Ltd. Vs. Bhupinder Singh, Hind Motors India Ltd. Vs. Marwah Pramod Kumar, SGS India Ltd. Vs. Dolphin International Ltd. 2021 SCC Online SC 879.

25. It is reiterated by OP-1 that the vehicle given to the complainant is of highest quality and meets the standards set out by the competent authority and there is no manufacturing defect in it.   It is also stated that complainant has not suffered any loss or injury due to deprivation, harassment, mental agony or loss of professional practice and as such the complainant is not at all entitled to any compensation.

The complainant has filed his evidence, both the parties have filed their written submissions. This Commission has gone through the entire material on record and have heard the oral arguments. The Hon’ble Supreme Court in M/s Daimler Chrysler India Pvt. Ltd. vs M/S Controls & Switchgear Company Ltd. & Anr.  Civil Appeal No. 353 Of 2008  decided on July 09, 2024 has held

It is also not disputed that neither the airbags on the front side nor the airbags on the side of the respondent no. 2 had opened at the time of accident, as a result thereof, the respondent no. 2 sustained grievous injuries, and the driver sustained some minor injuries. …. The appellants-opponents had produced on record certain photographs as also the reports of technical experts of the appellants. …

The National Commission after considering the material on record disposed of the complaint of the respondents - complainants directing the appellants to pay a sum of Rs. 5 lakhs to the complainant no. 1 for the deficiency in the services rendered to it on account of the airbags of the car having not deployed/ triggered and further directed the appellants to pay a sum of Rs. 5 lakhs as compensation to the complainant no. 1 for the unfair trade practice indulged into by them, and a sum of Rs.25,000/- as cost of litigation.

The National Commission after elaborately considering the Owner’s Manual produced by the complainants, ….as under: -

“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 or promoting the sale of their vehicle.” ………..

Incomplete disclosure or non-disclosure of the complete details with regard to the functioning of the airbags at the time of promotion of the car, has rightly been considered by the National Commission as the “unfair trade practice” on the part of the appellants, and awarded a sum of Rs. 5 lakhs towards it. The National Commission has also rightly balanced the equity by awarding Rs. 5 lakhs only towards the deficiency in service on account of the frontal airbags of the car having not deployed at the time of accident.

Since the National Commission has considered in detail the evidence and the material on record adduced by the both the parties, in our opinion the well-considered judgment dated 11th September 2017 passed by the National Commission does not warrant any interference.

It is needless to say that a trade practice which for the purpose of promoting the sale of any goods by adopting deceptive practice like falsely representing that the goods are of a particular standard, quality, style or model, would amount to “unfair trade practice” within the meaning of Section 2(1)(r) of the said Act.”

In the present case, Complainant has placed on record photographs to prove that the impact damaged the entire bonnet of his car and the left side. It is seen from the photograph that the impact was forceful. As OP-1’s own claim, the said car i.e. Tata Nexon is a heavy and strong car, if such heavy and strong car could be damaged in an accident the way it is visible in the photographs then the safety features of the car should have come into operation.  It is also noticed that the complainant has not placed on record any expert opinion however, it is visible from the pictures placed on record that considerable damage was caused to the car. Placing our reliance on the judgment passed by the Hon’ble Supreme Court in M/S Daimler Chrysler India Pvt. Ltd. vs M/S Controls & Switchgear Company Ltd. and M/s Hyundai Motors vs Shailender Bhatnagar, OP-1 is directed to provide a compensation of Rs.50,000/- within three months from the date of pronouncement of order failing which the compensation would carry an interest @6% per annum till realisation. This compensation is provided keeping in mind that no physical harm was caused to the complainant and the damage was caused to the car.

Copy of the order be provided to the parties as per rules. File be consigned to record room. Order be uploaded on the website.