D.o.F:18/7/08

D.o.O:17/10/12

 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                             CC.No.114 /2008

                        Dated this, the 17th  day of October 2012

PRESENT

SRI.K.T.SIDHIQ                                 : PRESIDENT

SMT.RAMADEVI.P                       : MEMBER   

SMT.BEENA.K.G                             : MEMBER

Pradeesh.M.V.,S/o late Bhaskaran,

Yamuna, Kusal Nagar, Kanhangad.               :     Complainant 

(Adv.C.Shukkur,Hosdurg)

1. The Manager, Indus Motors,

 Maruthi Authorised Dealer,                            :       

Hosdurg, Kanhangad.Po,

2. Indus Motors Co.Pvt.Ltd,

Chakkorathkulam, Po.West Hill,                        :   Opposite parties

Kozhikode.

(Adv.P.K.Aboobacker, for ops 1&2)

3. Chief General Manager(service)                      :

Maruthi Suzuki India Limited,

Palam-Gurgon Road, Gurgon 122015,Hariyana.  :

(Adv.V.Santharam& A.N.Ashok Kumar)

                                                     ORDER

SMT.RAMADEVI.P      : MEMBER   

    The facts pf the complaint in brief are as follows:

  That the complainant purchased the vehicle Maruti SX4 new car on 30^th May 2008 and  after days of its  purchase on  8/6/08 which the  complainant was with his family traveling through Nellikatt, Kanhangad there was a loud noise from the  car and all of a sudden the front  air bag caused to inflate and burst open.  Subsequently the vehicle was taken to the premises of opposite party No.1 and Ist opposite party informed the complainant that the incident happened due to the mechanical defect and promised to return the vehicle in good condition or replace a new one within a week.  But the Ist opposite party has not returned the vehicle.  At last the first opposite party demanded `70000/- for replacing the air bag and repair of the vehicle.  The complainant opted this vehicle with airbag since there are extra facilities than other vehicles by paying an additional amount of `80,000/-.  According to the complainant the airbag is broken without any severe collision and no collision is happened at any side of the vehicle . The airbag is broken due to manufacturing defect of the vehicle.  Due to the accident the complainant and his family suffered mentally and financially.   Moreover, the opposite party collected additional  amount from the  complainant. Hence this complaint for necessary relief.

2.  On receipt of notice from this Forum opposite parties appeared through their counsel and filed their version.

   First and 2^nd opposite parties filed their version jointly.  The opposite parties admitted the purchase of Maruti SX-4 car on 30/5/2008 by the complainant.  According to the opposite parties they have never collected additional amount from the complainant as stated in the complaint.  The opposite parties denied all the allegations made against them by the complainant.  According to these opposite parties the vehicle had met with a road accident due to the rash and negligent driving of the complainant and the  damage on the  body of the vehicle proves the same and  cut mark on the internal side of the tubeless tyres prove the high density/ gravity  occurred to the vehicle at the time of the accident and the airbag  and pre- tensioner seat belt were activated due to the impact, as it should be and the loud noise, inflation of air bag with smoke is a normal phenomenon for deploying air bags in vehicle at the time of the accident.  The opposite parties denied that the front tyre of the driver side is broken and the vehicle is kept by them exposed to sun and rain.  These opposite parties further submits that they had never given any promised  to replace the vehicle with a new one and they have no  authority to give such  a promise.  They further submit that the opposite parties never stated that the accident had occurred due to the mechanical defect of the vehicle or manufacturing defect.  The vehicle was brought to the body shop on 8/6/08 and at the service station on 10/6/08.  The complainant had come from gulf country on 25/6/08 and the matter was discussed with him.  But the complainant was not ready to apply for insurance claim.  On verification of the document it was seen that the temporary registration was expired and the road  tax also was not remitted due to delay since he was awaiting for the fancy number  for his vehicle and these opposite parties  complained to the complainant that these opposite parties are unable to give warranty coverage to a vehicle for the  defects occurred in a road accident, but the possibility is to make a claim before the insurance company if proper coverage  is there according to their rules.  But the complainant wants the total repair works are to be done under warranty, which is not possible as per the warranty condition.   Hence Ist & 2^nd opposite parties are not liable to compensate the complainant.

3.  3^rd opposite party filed a separate  version .  According to 3^rd opposite party the complaint is not maintainable since there is no privity of contract between the complainant and the 3^rd opposite party.  The 3^rd opposite party denied all the allegations made against it by the complainant.  According to the 3^rd opposite party the vehicle has no manufacturing defect  and this opposite party is not liable to compensate the complainant and the complaint is liable to be dismissed.

4.   Here the complainant is  examined as PW1 and Exts.A1 to A10 marked.  On the side of opposite parties DWs1&2 examined and Exts.B1 to B10 marked.  Expert is examined as CW1 and Exts.C1&C2 marked.

5.  After going through the facts of the  case the following issue raised for consideration.

1. Whether the complaint is a consumer or not?

 2. Is there  any manufacturing defect in the vehicle?

3. Is there any deficiency in service or unfair trade practice on the side of the opposite parties

4. If so what is the relief as cost and compensation?

6.  Issue No.1: The contention of the 3^rd opposite party is  that the complainant is not a consumer since the complainant neither bought the vehicle in  question under the contract of sale from the 3^rd opposite party nor hired any service for consideration and there is no privity to the sale transaction or is responsible for post  accidental repairs as per terms and conditions of warranty.

     This is a case of manufacturing defect of the vehicle in question.  Therefore the manufacturer must be a party to the proceedings.  According to Sec.2(q) of the Consumer Protection Act  The “trader" in relation to any goods means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form, includes the packer thereof……..  

      Here the allegation is the manufacturing defect of the vehicle in question and the trader or manufacturer is a proper party and the Ist issue is found in favour of the complainant

7.   In order to prove the case of the complainant, he had taken out an expert commission and the commissioner filed his report.  The report filed by the expert was remitted back  to him at the instance of opposite parties as per order in IA.No.218/08     and the commissioner filed  his report after considering the objections raised by the complainant and  the same is marked as Exts.C1&C2.

8.    The specific case of the complainant is that the vehicle has got manufacturing defect that is why the air bag bursts .  Here as  per the  users manual how  the air bag system  or supplemental restraint system will works.  It says in a frontal collision, the crash sensor will detect rapid deceleration and if the controller judges that the  deceleration represents a severe frontal crash, the controller will trigger the inflators.  The inflators inflate the airbag with nitrogen or  organs gas.  The airbag inflates and deflates so quickly that we can not realize that it has activated.  The air bag will neither hinder our view nor make it harder to exit the vehicle.  As per the commissioners report there is no front on collision.  The commissioner also reported that there is no chance for front on collusion since the site of occurrence is a road  having two simultaneous curves to left and right with in a distance of 50 meters and  3 meters width road.  Hence the vehicle can be normally driven at this place at a minimum speed only .  Ext.C2 sketch shows the place of accident is a  ‘S ‘ road.  On going through Ext.C2 we cannot find any place for  hitting the vehicle in a hard material object  or collision with any other thing.  It is a road having curves and no vehicle will ply speedily.  Further observation of the commissioner is that he has not seen any stones, boulder or any such things abnormally projecting on the road surface at the place of accident.  Therefore according to the commissioner there is no chance for hit the car against any had object.  According to the commissioner a severe head on collusion will badly damage the front bumper, bonnet, grills head light fender etc none of which is seen in the vehicle.  The opinion of the expert is that the tubeless tyre of the vehicle is burst due to some defects causing a severe shock of the sensor unit which activated the air bag system without any front on collision of the vehicle.  Moreover, the commissioner on examination has not seen any damages on the front bumper, bonnet grills head light, fender etc on the vehicle.  According to the commissioner if a  front on collision occurred or the vehicle hit with a hard material object the vehicle might sustain damages on the front  bumper, bonnet , grills, head light etc  absence of such damages on the vehicle will show that there was no front on collision.  On physical appearance of the vehicle there were no symptoms of front on collision.  The opposite parties also failed to disprove the case of the complainant that there was no front on collision of the vehicle.  The commissioner clearly stated that the bursting of the airbag is untimely or an unwarranted one.  That means the said accident was not sufficient cause for bursting of the airbag.  That means there is no negligence on the part of the complainant to constitute the bursting of the airbag.

10.   The contention of 3^rd opposite party is  that their liability is limited and which is set out  under clause 3 of the Owners manual  and Service book let.  According to 3^rd opposite party the accidental repairs are not covered under warranty as per clause 4(d) of the warranty policy.  Clause 4(d) says ‘’ any  repairs or replacement required as a result of accidents or collision.  Here the repair or replacement is required not as a result of collision because the collision of the vehicle is not proved.  That means clause 4(d) is not applicable in this case.  The 3^rd opposite party further contended  referring the report of their  Engineering Department.  The report of  the Engineering Dept says ‘’ On first impression , it is reflected that the vehicle met with an accident on front  right side of the tyre.  This is also suggested by deformation marks on  fender, however a closer look at the  vehicle can give more clear picture.  As a  general rule, whenever the wheels or tyre strike any curb stone or an obstruction of similar type high deceleration is produced in underbody that may cause the inflation of Airbag’’. 

11.    Then the question to be answered is how the airbag bursts?

        As per Ext.B2, the users manual it is specifically stated that the airbag system will function if there is a front on collision of the vehicle.  As per the expert report and other evidences on record there is no such front on collision or any kind of collision  with any object.  The photographs produced and marked as ExtA1 clearly shows that the vehicle is not subject to any kind of collision .  If there is no such collision and  the air bag blasts then the reason may be technical.  Here the opposite party has not produced any evidence to disprove the case of the complainant that there was no front on collision.  Hence after considering the entire facts of the case we are of the opinion that the reason for busting of the airbag system is either by improper installation of the airbag or manufacturing defect of the airbag system . The manufacturing defect of the airbag will not mean that vehicle itself has got manufacturing defect.  Only a part of the vehicle is defective and without that part the vehicle can ply.  If the complainant sustained damages due to the above reason the complainant is not liable because the incident was happened not because of his negligence.  Therefore the opposite party is liable to compensate the complainant.  Here the blasting of airbag either due to manufacturing defect or due to improper installation.  In both cases the manufacturer is liable to compensate the complainant for the value of the airbag.

12.   Then the next question to be answered is what is the order as to compensation for mental agony and sufferings.  Here the complainant suffered mentally because it is his new vehicle and he was traveling with his family and suddenly the incident happened and he and his family shocked because of the loud noise of the blaster.  The blasting of airbag will make a loud noise that will affect mentally and physically.  Moreover the vehicle kept idle with the opposite party for more than one year and that also affect mental agony to the complainant.  Hence the opposite parties are liable to compensate the complainant for mental agony and sufferings.

   In Tata Motors Limited and others  vs. Sunil Kumar and another II(2012)CPJ 307(NC) the Hon’ble  National Commission observed that if there is no manufacturing defect is proved absence of expert opinion, the vehicle was road worthy and fit for being  put in use after repairs.  Compensation awarded as complainant was deprived of its use  from 2005 to 2007.

 13.      Here the Ist opposite party kept the vehicle in idle from June 2008 to December 2009.  The complainant released the vehicle from the opposite party only on order of this Forum as per IA 360/09.  In that application also opposed by the opposite party and  filed counter stating that the release of the vehicle from the custody of opposite party will came prejudice for the whole of the case set up by the opposite party.  That means the opposite parties are not ready to release the vehicle.  Therefore they are liable to pay compensation depriving the use of the vehicle by the complainant as per the above observation of the Hon’ble National Commission.  Here the vehicle can ply after its repair therefore we cannot order as replacement of the vehicle.  There is no evidence to show that opposite parties received excess amount from the complainant.

      Therefore the complaint is allowed in part and the 3^rd opposite party, the manufacturer is directed to pay the present market  value of the airbag installed in the Maruthi Suzuki SX4 to the complainant and 3^rd opposite party is  further directed to pay  compensation of `2,00,000/- for  mental agony and sufferings and  `10,000/- as cost of the proceedings to the complainant.   The time for compliance  is 30 days from the date of receipt of copy of the order.  If the opposite party failed to comply the order within time the amount of  `2,00,000/- will fetch an interest @9% per annum from the date of complaint till payment.

Exts.

A1-photograps

A2-copy of vehicle invoice

A3-copy of insurance policy

A4-copy of job card

A5- statement of account

A6 series- taxi receipts

A7- service quotation

A8 series- cash bills

A9- 5/2/10-Tax invoice

A10- Power of attorney

B1- copy of rejection advice

B2- copy of users manual

B3 - order booking form

B4-dealership agreement

B5-copy of warranty policy

B6-copy of job card

B7-11/7/08-copy of letter issued by OP.3 to complainant

B8-25/7/08- -do-

B9-copy of postal acknowledgment

B10 series-true photograps of tyre cut

C1&C2-Commission report

Pw1- Raveendran P.K. P.A.holder of  complainant

DW1- Vijayan.K. OP.NO.1

DW2- Ramkumar-OP.3

CW1-Abdul Shukur-Expert Commissioner

Sd/                                                            Sd/                                       Sd/

MEMBER                                       MEMBER                      PRESIDENT

eva

/Forwarded by Order/

SENIOR SUPERINTENDENT