IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 15th day of December, 2021
Filed on 29.08.2018
Present
1. Sri.S.Santhosh kumar, BSc. LLB (President)
2. Smt.Sholly.P.R, LLB (Member)
In
CC/No.227/2018
Between
Complainant:- Opposite parties :-
Sri.Abdul Rasheed 1. The Managing Director,
S/o Muhammed Toyota Kirloskar Motor Pvt. Ltd
Nizar Manzil, Manakkadu Bidadi Industrial Area
Mavelikkara Village Bidadi, Ramangara Dt.
Mavelikkara-PO Karnadaka-562109
Alappuzha (Adv. Frijo. K. Sundaram)
(Adv. Hameed Manthalasseril) 2. The Managing Director,
Nippon Motor Corporation
Pvt Ltd., X/314 K, NH-47
Nettor –PO, Kochi-682040
(Adv. P.Viswanathan Associates )
O R D E R
SMT. SHOLLY.P.R (MEMBER)
This is a consumer complaint filed under Sec. 12 of the Consumer Protection Act, 1986
1. Material averments briefly discussed are as follows:-
The complainant had purchased INNOVA 2.5 V (E3)- 7S from the 2nd opposite party who is the dealer of the 1st opposite party as per invoice No.COC120000027 dated 17.01.2012 and issued sale certificate No.21A/40722/2013 in Form No.21. The 2nd opposite party had also issued owner’s manual and warranty booklet in connection with the Toyota Innova Vehicle. The 2nd opposite party had given assurance about the SRS Air Bags installed in the vehicle that whenever a collision of any type causes sufficient forward deceleration of the vehicle, deployment of the SRS Front Air Bags will occur. The complainant believed the assurance and purchased the said vehicle on 17.01.2012.
2. On 09.12.2017 at about 2.45 am, the complainant was driving the said Innova Vehicle through the Nangiarkulangara-Mavelikkara road in the eastern direction keeping the left side of the road. When the Innova car reached at Thattarambalam Junction, the control of the car was lost and the car hit the electric post and wall situated near the left side of the said road. The front side of the car was fully damaged. The complainant and his wife had sustained series injuries all over the body and the head. But the SRS front bags had not deployed at the crucial time of the accident. The complainant was the driver of that vehicle at the time of accident. The complainant and his wife had worn the seat belt properly at the time of accident. The complainant had complied with the instructions given by the owner’s manual in connection with the SRS Air Bag precautions. It is revealed that the accident was very series in nature. But the SRS Front Air Bags of the said vehicle had not deployed at the time of the said accident for giving protection to the life of the complainant and his wife, as mentioned in the owner’s manual. Therefore it is revealed that some manufacturing defects have been occurred in connection with the manufacture of the said Innova vehicle bearing Reg.NoKL-31-D-4786 (Chasis No.MBJ11JV40073063780112). The sole purpose of having chosen the above vehicle with Air Bag facilities was with the intention of saving the lives the passengers and the driver of the Innova car. But at the crucial time of the accident occurred, the facilities of SRS front Air Bags installed in the said vehicle had not deployed as per the assurance given in owner’s manual and warranty booklet of Toyota Innova vehicle. The life of complainant and his wife was saved by sheer luck even if the facilities of SRS Air Bag system had failed. The complainant has spent a huge amount of rupees to purchase the above said vehicle when compared to the other vehicles without SRS Air Bag system. The complainant and his wife could not have suffered such series injuries in that accident, if the SRS Air Bag system had been properly functioned in that vehicle at the crucial time of the accident. The manufacturer and the dealer of the vehicle who are the 1st 2nd respondents respectively are liable to pay compensation to the complainant in connection with the sale of the defective vehicle without ensuring the proper functioning of the SRS Air Bag system of the said vehicle.
4. Therefore, the 1st and 2nd opposite parties are liable to pay compensation to the tune of Rs.10,00,000/- (Ten lakh) to the complainant in connection with the failure of the SRS Air Bag system of the said vehicle at the crucial time of the accident . The complainant has issued lawyer notice to the opposite parties No. 1 and 2 on 27.12.2017 demanding Rs.10,00,000/- as compensation in connection with the failure of the SRS Air Bag system of the said vehicle at the crucial time of the accident ie, on 09.12.2017. The opposite parties received the legal notice but they did not ready to pay the compensation as mentioned in the legal notice. Hence this complaint.
5. 1st opposite party filed a version mainly contenting as follows:-
The opposite party No.1 is one of the leading car manufacturers in India and is known for its quality reliable products. Opposite party No.1 believes in the philosophy of ‘Customer first and always strives to deliver the best to its customer. The relationship between 1st opposite party and opposite party No.2 is on principal-to-principal basis. Dealers purchase vehicle and parts from opposite party No.1 on payment of full price and in turn, they sell the same to their end customers. Issues relating to booking, delivery, cancellation, servicing, customer relations etc are independently handled by dealers. As an obvious corollary thereto, the 1st party is not responsible for the acts and omissions of opposite party No.2.
6. The complainant’s vehicle does not suffer from any manufacturing defect. The air bag installed in the vehicle is of top notch quality and the same is in perfect working condition. The criteria for the airbags to deploy is that there must be a head on collision with the force exceeding the threshold for deployment of the airbag. The owner’s manual and the safety book given along with the vehicle clearly stipulated the conditions when the airbags will deploy, if the required criteria for deployment of the air bag are not fulfilled, then the airbag will not deploy at the time of impact. The relevant extract in the owner’s manual and safety book depicting the criteria for deployment of airbag is extracted hereunder:
7. “The SRS front airbags are designed to deploy in severe (Usually frontal) collision where the magnitude and the duration of the forward deceleration of the vehicle exceeds threshold level. The SRS front airbags will deploy in the event of an impact that exceeds the set threshold level (the level of force corresponding to a 20-30km/hour (12-18mph) frontal collision with a fixed wall that does not move or deform. However, this threshold velocity will be considerably higher if the vehicle an object, such as a parked vehicle or sign pole which can move or deform on impact of if the vehicle is involved in an under ride collision e.g. a collision in which the front of the vehicle under rides or goes under the bed of a truck etc.”
Types of collusions which may not deploy the SRS airbags (SRS front airbags):
The SRS airbags are generally not designed to inflate if the vehicle is involved in a rear or side collision, if it rolls over, or if it is involved in a low speed frontal collision.
The SRS airbags in the complainant’s vehicle did not deploy since there was no frontal collision that exceeded the set threshold level. Further the SRS airbags are generally not designed to inflate in the vehicle is involved in a rear side or side collision, if it rolls over, or if it is involved in a low speed frontal collision. In the instant case the complainant lost control of the vehicle and first ran over a drainage canal and then collided the right side of the vehicle with the concrete electric post before stopping by crashing into a tree and concrete wall. Since the vehicle was involved in multiple offset crashes and there was no direct frontal impact at the threshold speed to deploy the airbag, SRS airbags did not deploy in this particular circumstance. In reply to the legal notice issued by the complainant, the 1st opposite party vide reply notice dated 8th February 2018 had refuted the contention of the complainant and had clearly informed the complainant that there is no manufacturing defect in the functioning of the air bags installed in the complainant’s vehicle. The said reply notice was served on the complainant’s advocate. There is no deficiency of service on part of the 1st opposite party. The claim of the complainant is devoid of any merits and the same is liable to be dismissed.
9. Version file by the 2nd opposite party is as follows:-
Complaint is not maintainable. It is true that the complainant had purchased an Innova 2.5V(E3)-7S TOURING SPORT-XA vehicle from the 2nd opposite party on 17.01.2012). SRS Air Bags were installed in the vehicle, at the time of purchase of the said vehicle, the 2nd opposite party had made assurances on the quality and the safety features of the owner’s manual of the vehicle. The allegation that the 2nd opposite party has given assurance that whenever a collision of any causes sufficient forward deceleration of the vehicle, deployment of the SRS front Air Bags will occur, is denied.
10. On 09.12.2017,After the alleged accident, the complainant himself brought the vehicle to the 2nd opposite party’s service centre at Kaymakulam and reported that the air bag was not deployed during the alleged collision. The service engineer of the 2nd opposite party inspected the vehicle and found that the front portion of the car has not been damaged or hit anywhere. The damages were on the left side alloy wheel and the head light, fender and door on the right side and rear door were seen damaged. Hence, the allegation that the front side of the car was fully damaged is absolutely incorrect. There is no damage to the cabin of the vehicle and is intact. There was not major engine shift to the back. The dent in the front side of the vehicle was due to collapse of the brick wall. There is no direct hit to the wall or the electric post as alleged and in fact it was a sliding hit and the vehicle skidded and the right side of the front portion of the vehicle hit the compound wall on the left side of the road and the compound wall fell down and the vehicle skidded and rotated and entered a nearby compound gate in the reverse direction, giving no opportunity for the airbag to deploy. The complainant himself informed the 2nd opposite party that he had fallen asleep while driving the car and it was due to his negligence that the car was hit. The hit was not in force and was not of a serious nature.
11. The complainant himself had informed the 2nd opposite party that complainant’s wife was not wearing the seat belt at the time of the alleged accident. Hence they have failed to comply with the instructions given in the owner’s manual with regard to the SRS air bags precautions.
12. The complainant was wearing seat belt at the time of accident and hence he survived without any injuries. In the owner’s manual it is clearly stipulated that SRS air bags are supplemental devices to be used with the seat belts and the passenger must wear their seat belts. If there were any manufacturing defects in the vehicle bought by the complainant, the warning lights would have definitely blinked. The complaint has no case that the warning lights in the vehicle were blinking after the alleged accident. In the said circumstance, it is baseless to allege that some defects have been occurred in connection with the manufacture of complainant’s car and that it is because of the manufacturing defect that the SRS air bags were not deployed at the time of the accident.
13. The two sensors fixed in the car were neither damaged nor affected due to the alleged accident as there was no impact of the accident on the front portion of the car. In the said circumstance, the 2nd opposite party is not liable for the alleged mental agony and financial loss suffered by complainant.
Hence may be pleased to dismiss the above complaint with cost of the 2nd opposite party.
14. On the basis of above pleading points arise for consideration are:
1. Whether there is any deficiency in service of unfair trade practice on the part of opposite parties?
2. Whether the complaint is entitled for compensation as sought in the complaint?
3. If so from whom?
4. Reliefs and cost?
15.. Evidence in this case consists oral evidence PW1 to PW3 and Exts A1 to A13 and Ext X1 and Ext C1 series on the side of complainant. Oral evidence of RW1 and Ext B1 and B2 and C2 series on the side of 2nd opposite party. Ext B2 marked with subject to proof. No oral or documentary evidence on the side of 1st opposite party.
16. Points No. 1 to 3:-
PW1 is the complainant in this case, He filed an affidavit in tune with the complaint and got marked Ext A1 to A13.
17. PW2 is the SI of Police, Mavelikkara Police Station. He produced the G.D entry abstract dated 09.12.2017, marked as Ext X1.
18. PW3 is the Expert Commissioner who examined the vehicle in question in this case and prepared report and had taken photographs of the said vehicle at the time of inspecting the vehicle. The said report marked as Ext C1 series and photographs marked as Ext C2 series.
19. RW1 is the group technical officer of the 2nd opposite party. He filed an affidavit in tune with the version of opposite party 2 and got marked Ext B1 and B2. Marking of Ext.B2 objected by the counsel appearing for the complainant, hence the same was marked subject to proof.
20. The case advanced by PW1, the complainant is that he had purchased Innova 2.5 V(E3) 7S from 2nd opposite party on 17.01.2012. 1st opposite party is the manufacturer of the said vehicle. The PW1 alleged that he had purchased the said vehicle spending a huge amount with the intention of saving the lives the passenger and the driver of the said vehicle because it was assured by the 2nd opposite party about the SRS Airbags installed in the vehicle and whenever a collision of any type causes sufficient forward deceleration of the vehicle, deployment of the SRS Front Airbags will occur. On 09.12.2017 at about 2.45 AM while the PW1 was driving the said vehicle through Nangiarkulangara-Mavelikkara Road, the control of the car was lost and hit the electric post and wall situated left side of the road and front side of the car was fully damaged and PW1 and his wife had sustained serious injuries. But the SRS front air bags had not deployed at the crucial time of the accident as assured by the opposite party No. 2. In connection with the failure of the SRS Air bag System of the vehicle at the crucial time of accident, the complainant had issued lawyer notice to opposite parties 1 and 2 demanding Rs.10 lakh as compensation. They did not responded. Hence this complaint was filed.
21. Per contra opposite parties 1 and 2 contented that the main criteria for the airbags to deploy is that there must be a head on collusion with the force exceeding the threshold for deployment of the airbag. The owner’s manual and the safety Book given along with the vehicle clearly stipulate the conditions when the airbags will deploy, if the required criteria for deployment of the airbags are not fulfilled, then the airbag will not deploy at the time of impact. They further contented that the airbag of the vehicle did not deploy since there was no frontal collision on the vehicle of the complainant.
22. 1st opposite party alleged that the relationship between 1st and 2nd opposite party is on principal to principal basis, accordingly 1st opposite party is not responsible for the acts and omissions of 2nd opposite party. On the other hand 2nd opposite party contended that they had not given any assurance regarding the deployment of SRS airbag of the said vehicle whenever a collision of any causes sufficient forward deceleration of the vehicle.
23. Admittedly an accident was happened to the vehicle of the complainant on 09.12.2017. But the nature of accident and its damages were disputed. The examination of PW3 and Ext C1 series are relevant in this aspect which proves the case advanced by the PW1. PW3 is none other than the expert commissioner deputed by this commission to submit a report regarding the nature of damage occurred in the vehicle in question. During cross-examination by the counsel appearing for 2nd opposite party PW3 categorically deposed that it was understood that the vehicle, hit on the electric post. When the counsel put suggestion of no damages happened on direct front of the vehicle due to the accident, the witness categorically denied it as “not correct.” ie, to say there was damages on the direct front of the vehicle. PW3 also admitted the manufacturing defect of the vehicle. Ext C1 series also proved the allegation of the complainant regarding the manufacturing defect of the SRS airbag of the complainant car. PW3 reported that after collision which affected whole front portion of the vehicle most frontal body parts and body shell structure replaced resulting the non-deploying of SRS airbags and the same is believed due to manufacturing defect. Ext C1 series concluded with a finding that SRS Airbags safety system failed to serve its purpose. Ext X1 also reveals the damages occurred in the vehicle on its front portion and specifically stated that
“Sn Imdnsâ ap³hiw t_mWäv, F³Pn³, FbÀIojWÀ apXemhb DÄs¸« `mKw Npfp§n DÅnte¡v Ibdn apgph\mbn \in¨pw slUv sseäpIfpw anddpIfpw s]m«n \in¨pw BIvkn hfªpw, ap³hiw cp hoepIfpw s]m«n \in¨pw ap³ hiw wind screen glass s]m«n \in¨pw ImWp¶p.” In this circumstance it is pertinent to note that nothing brought into evidence discrediting the deposition of PW3 and Ext C1 during cross examination by the counsel appearing for 2nd opposite party. Moreover the 1st opposite party as well as their counsel not turned up to for cross-examination of PW1 to PW3 when they mounted in box for disproving the case of the complainant.
24. Learned counsel for the complainant placed ruling from our Apex Commission allowing compensation on finding deficiency in service for non-deployment of SRS Airbag system at the crucial time or an accident occurred on the vehicle.
1 . Hyandai Limited Vs. Leelashu (2016 (2) CPR 458)
2. Hyundai Motor India Vs Shilendar Bhat Nagar (2021 (1) CPR 671)
3. CG Power and Industrial solutions Ltd Vs Mercedes Bens India Pvt Ltd (2017 (4) CPR 114)
25. Considering the above mentioned decisions of the National Commission, in this case the complainant is entitled to get compensation. Since the SRS Airbags was not deployed at the time of accident due to manufacturing defect as discussed earlier. Per contra the Learned Counsel for 2nd opposite contented interalia that the dealer is not responsible for the manufacturing defects of the vehicle. For substantiating their contention 2nd opposite party has submitted judgments of Hon’ble Supreme Court and Hon’ble National Commission.
1. Hindustan Motors Limited Vs N.Sivkumar 2000 (10) SCC 654
2. M/s Abhinandan Vs Ajithkumar Verman and others 2008 1 CPJ (NC) 336
3. Classic Automobiles Vs Lila Nand Mishra and another 2010 1 CPJ (NC) 235
26. Accordingly we fix the responsibility of deficiency in service upon 1st opposite party only. 2nd opposite party is exonerating from the liability since the complainant would establish the reason for not deploying the SRS Airbag at the time of accident is the manufacturing defect on the vehicle. Hence we are of the opinion that 1st opposite party is liable to compensate the complainant and considering the facts and circumstances of the complainant we fix compensation for Rs.50,000/-.
27. Point No.4:-
In the result complaint stands allowed in part in the following terms:-
A. 1st opposite party is directed to pay Rs.50,000/- (fifty thousand only) as compensation to the complainant for causing mental agony due to the non-functioning of SRS Airbag system in the vehicle at the crucial time of accident.
B. Complainant is entitled Rs. 5000/- (Rupees Five thousand only) as cost of the proceedings from 1st opposite party.
The above order shall be complied within one month from the date of receipt of the copy of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 15th day of December, 2021.
Sd/-Smt.Sholy.P.R (Member)
Sd/Sri.S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Abdul Rasheed (complainant)
PW2 - Varghese Mathew (Grade S.I. of Mavelikara P.S.)
PW3 - Sarath Senan M.I. (M.V.I.,Mavelikara)
Ext.A1 - Temporary Certificate of Registration.
Ext.A2 - Sale Certificate
Ext.A3 - Form 22.
Ext.A4 - Retail Invoice Cash/Credit
Ext.A5 - Certificate of Registration.
Ext.A6 - Motor Insurance Certificate cum Policy Schedule
Ext.A7 - Pollution Under Control Certificate
Ext.A8 - G.D.Abstract of Mavelikara Police Station dt.12.12.2017
Ext.A9 - Postal receipt
Ext.A10 - Copy of Legal Notice.
Ext.A11 - Order Booking Form –customer copy
Ext.A12 - Commitment Check List – Noppon Toyota
ExtA13 - Casualty Record issued from Sreekantapuram Hospital.
Ext.X1 - Copy of General Diary of Mavelikara Police Station.
Ext.C1 - Expert Commission Report.
Evidence of the opposite parties:-
RW1 - Vidhu C.V., Group Technical Officer of 2nd O.P.
Ext.B1 - Owner’s Manual & Warranty Booklet
Ext.B2 - Safety Book.
Ext.C2 series - Photographs
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Comp.by:
