PER DR. B.C. GUPTA, MEMBER

          This revision petition has been filed u/s 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 07.05.2008, passed by the UT Chandigarh State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) in appeal No. 841/2007, “M/s. Toyota Kirloskar Motors Pvt. Ltd. vs. Tirath Singh Oberoi,” vide which, while dismissing the appeal, the order dated 25.10.2007, passed by the District Forum UT Chandigarh, in consumer complaint No. 841/2005, was upheld.

2.       The facts of the case are that the complainant/respondent Tirath Singh Oberoi purchased a Toyota Corolla car from M/s. Pioneer Toyota, Opposite Party (OP-2), manufactured by the petitioner / OP-1 Toyota Kirloskar Motors Limited for a sum of ₹10,50,000/-.  The said car was delivered on 17.05.2004 and it was duly registered vide registration No. CH03P 2012.  In the said car, SRS Air bag system had been provided for better protection of the driver and the accompanying person in the case of accident.  It was stated in the consumer complaint that the said car met with an accident on the night of 11 – 12 September 2005, when it was hit by a Swaraj Mazda Truck, which came from the right hand side at the crossing of Sector 45/46 and Sector 49/50 in Chandigarh.  The driver of the said truck, while avoiding to hit a scooter, swayed the truck towards the car and the said truck hit on the front head-light area, on the right hand side of the car (driver side).  It is mentioned in the consumer complaint that the SRS Air bag did not deploy during the accident, but the complainant, escaped with bruises and some blunt injuries.  It was alleged that the Air bag system did not work due to some manufacturing defect in the vehicle.  The complainant filed the consumer complaint, in question, seeking directions to the OPs to pay a sum of ₹10,50,000/-, i.e., the cost of the car alongwith interest @18% p.a. from the date of its purchase till realisation, OR to replace the car with a new car.  It was also demanded that  a sum of ₹25 lakh should be paid to the complainant as compensation for injuries and mental trauma alongwith ₹22,000/- as cost of litigation.

3.       The consumer complaint was contested by the respondents by filing a written statement before the District Forum saying that there was no manufacturing defect in the said vehicle.  It was further stated that the SRS (Supplementary Restraint System) Air bags in a car were designed to provide further protection for the driver and front passenger in addition to the primary safety protection provided by the seat belts.  The SRS Air bag will deploy if the severity of the impact is above the designed threshold level.  The conditions under which the Air bags would open had been explained in the owner’s manual and also in the Safety Book provided to the complainant.  The OPs also stated that there was an angular collision in the present case and there being no direct frontal collision, the SRS Air bag in the vehicle did not deploy.  It was evident from the photographs appended with the complaint that the Truck collided with the front right side of the said vehicle and hence, the collision being angular, it did not cause the activation of crash sensor and consequent inflation of the inflammatory unit with the Air bag.  It is denied that there was any defect in the design of the vehicle or the Air bags.

4.       The District Forum after considering the averments made by the parties, allowed the complaint vide their order dated 25.10.2007 and directed the OP-1 manufacturer to pay a sum of ₹9,45,000/- alongwith interest @7% p.a. since 1.10.2005 till payment alongwith ₹25,000/- as compensation and ₹21,000/- as cost of litigation.  The District Forum concluded that the vehicle had manufacturing defect due to the wrong positioning of the censor and hence, the Air bags did not deploy.  Being aggrieved against the order of the District Forum, the OPs challenged the same by way of appeal before the State Commission and the said appeal having been dismissed vide impugned order dated 07.05.2008, the OPs are before this Commission by way of the present revision petition. 

5.       The State Commission also concluded that the Air bag system failed due to wrong position of the censor and the said censor was located at such a place, where it was easily disconnected and damaged during the accident and hence, could not send signal to the Air bag to open.

6.       The Ld. Counsel for the petitioner argued that it was evident from the facts of the case that there was angular collision during accident and not the frontal collision.  The complainant had himself stated that the offending vehicle came from the right hand side and not from the front.  The photographs of the vehicle also showed that damage had been done to the front right side, thereby making it clear that it was not a case of frontal collision.  Relying upon the papers explaining the technical features of the Air bags as provided in the safety bag etc., the Ld. Counsel stated that the SRS Air bags opened in the case of frontal collision only.  The features of the Air bags had been explained in the safety booklet as well.  The Ld. Counsel further stated that the consumer fora below had based their conclusion on the report of Gopal Krishan Surveyor only, whereas the said surveyor could not be expected to give an expert opinion in the matter.  The said surveyor had not filed any affidavit in support of the contention made by him in his report.  Moreover, the petitioners were not given any opportunity to cross-examine the said surveyor.  The conclusion arrived at by the consumer fora based on the report of the surveyor were erroneous in the eyes of law.  The Ld. Counsel further stated that the vehicle had been delivered back to the complainant by the OPs after repairs in July 2006.  The complainants had been using the said vehicle since the beginning and it had already covered a distance of more than 1,00,000 KMs.  The said vehicle could not be stated to be defective vehicle, therefore.  The Ld. Counsel further stated that the complainant did not suffer any injury during the accident and he stated in the complaint as well that he escaped with bruises and some blunt injuries.  The Ld. Counsel further argued that there was no unfair trade practice on the part of the petitioners in any manner in this case.  In support of his arguments, the Ld. Counsel has relied upon a number of judgments passed by the Hon’ble Supreme Court and this Commission as detailed below:-

1. National Insurance Co. Ltd. vs Mohd. Ishaq [1 (2012) CPJ 538]”;

    

2. Dr. Pannaben Padamsi Asar Vs. Vilas Ramdas Borane [I (2013) CPJ 1A (NC)];

    

3. Shishir Vasant Kumarsenjeet Vs. Tata Motors Ltd. [2 (2013) CPJ 14 (NC)]

    

4. State of H.P. Vs. Jai Lal and Ors. [1999 (7) SCC 280];

    

5. Hindustan Motors Vs. P. Vasudeva [First Appeal No. 474 of 1999 decided on 03.07.2006];

    

6. United India Insurance Co. vs. Dashrath Lal Jethabai Patel [2 (1996) CPJ 77 (NC)]

    

7. National Ins. Co. Ltd. Vs. Munir Shah [2003 CCJ 731],

    

8. Rakesh Gautam Vs. Sanghi Bros. & Ors. [2010 SCConline NCDRC 138]

    

9. Sushila Automobiles Vs. Birendra Narain Prasad & Ors. [RP No. 1652/2006 decided on 07.05.2010];

    

10. Maruti Udyog Limited vs. Hasmukh Lakshmichand & Anr. [3 (2009) CPJ 229 (NC)];

     

11. Tata Motors Vs. Hazoor Maharaj Baba, [RP No. 2562/2012 decided on 25.09.2013].

     

     

    7.       The Ld. Counsel for the complainant/respondent stated that the factum of the accident in question had not been denied by the petitioners at all.  The damage to the vehicle was clear from a set of photographs attached with the complaint.  The Ld. Counsel further stated that since there were concurrent findings of the consumer fora below, the powers in revisional jurisdiction could be exercised only if there was a patent error of jurisdiction or miscarriage of justice.  In the present case, the petitioners had not been able to point out any illegality or irregularity in the impugned order.  Further, the findings given by the surveyor had been rightly relied upon by the Consumer Fora below.  The said surveyor concluded that the car collided head-on with the truck causing severe damage from front and right side.  The surveyor gave the opinion that the Air bags of the car should have opened in view of the severe accidental impact/head-on collision.  However, because of some manufacturing defect and not proper positioning of the censor, the Air bags did not open.  The Ld. Counsel stated that the said fora had made a correct appreciation of the facts and circumstances on record.  The State Commission had also stated that the petitioners did not make any request to cross-examine Gopal Kirhsan, surveyor.  The Ld. Counsel has drawn attention to a number of judgments passed by the Hon’ble Supreme Court and by this Commission in support of his arguments as per the details given below:-

     

12. Momna Gauri vs Scooter India Ltd. [(2014) 13 SCC 307]”;

     

13. M/s. Shobika Attire Vs. New India Assurance Co. [(2006) 8 SCC 35];

     

14. United India Insurance Co. Ltd. Vs. Roshan Lal Oil Mills Ltd. & Anr. [(2000) 10 SCC 19]

     

15. Sikka Paper Limited vs. National Insurance Co. Ltd. [(2009) (7) SCC 777];

     

16. Sri Venketswar Syndicate Vs. Oriental Insurance Co. Ltd. [(2009) SCC 8 507]

     

     

    8.       We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.  The main issue that requires consideration in the matter is whether there was any manufacturing defect in the vehicle in question due to which the Air bags did not open during the accident.  The petitioners have taken the main contention that it was a case of angular collision and not head-on collision, because as stated in the complaint itself, the offending vehicle had come from the right hand side and not from the front side.  In this regard the State Commission in the impugned order observed as follows:-

    “16.  There is no denying the fact that the vehicle collided head on with Swaraj Mazda when the car was going on the main rod at a speed of 70 – 80 KMPH and when respondent reached light point of Sector-45/46-49/50 and was crossing green light then Swaraj Mazda at a high speed emerged from right side of the road and the said truck while avoiding to hit a scooter swerved towards the car and car collided head on and causing severe damage to the car form front and right side and due to this accident, right side and front side of the vehicle were damaged badly.  It is also proved from the photographs attached with Ex.X.  It is very much clear that the impact mainly took place on the right frontal side and also on the front side and it was not an angular accident.  However, SRS system did not deploy.  It cannot be said to be an angular collision in any manner.  The report of Gopal Krishan appears to be trustworthy.

     

    17.   OP No. 1 being manufacturer and appellant No. 2 being dealer had every source to get it examined from some expert but they did not get it examined that no frontal collision had taken place and it was only angular accident.  Since, sensor placed on the right side of the engine did not transmit message to the SRS airbag system, so, it did not deploy and on the other hand, sensor was broken.  It is further mentioned by the expert in para 9 that due to severe impact of the accident, the cross member front and member front side right side were broken and the sensor mounted on the front cross member was also broken and, therefore, the position of the sensor was such that such a severe impact could not be transferred on the sensor.  On the other hand, due to severe impact the connector of the sensor of airbag system was disconnected/damaged causing total failure to the airbag system and in spite of such severe impact of accident, the airbags fitted in the car could not open.  It has been further stated that connector lead was also disconnected.

     

    18.   Therefore, it is proved that airbag system failed not because it was angular impact but it failed due to wrong position of the sensor which, in such an impact was, itself damaged and due to it did not send the requisite signal to SRS airbag system to activate.  Thus, instead of protecting the driver of the vehicle, sensor could not protect itself from the impact.  In fact sensor was located at such a place where it was easily disconnected and damaged and tall claims made by the appellant No. 1 about the safety of the car proved hollow.”

     

    9.       A perusal of the version given by the complainant in the complaint itself shows that the offending Swaraj Mazda Truck came from the right hand side and not from the front side.  It is clear, therefore, that the collision in question could not be a head-on collision, rather it could be described as an oblique collision or angular collision.  As per the photographs of the damaged vehicle appended with the complaint and the facts brought on record, it is clear that the impact mainly took place on the right frontal side only.  The version given by the petitioner, therefore, that it was not a case of simple head-on collision appears sound.  It is to be examined, however, whether in the event of such a collision, the Air bags could have deployed or not.

     

    10.     It has been stated in the safety book that “Air bags will deploy in severe front collision from the oblique right or left when the collision poses a serious threat of injury to occupants.”  The State Commission have concluded that the censor placed on the right side of the engine did not transmit message to the SRS Air bag system; so it did not deploy and on the other hand, the censor was broken.  The State Commission as well as the District Forum concluded that the Air bags failed to open due to wrong position of the censor, which in itself is a manufacturing defect in the said vehicle. 

     

    11.     This conclusion of the State Commission, however, does not get substantiated from any expert evidence on record.  The petitioners are a leading manufacturer of the vehicles in question.  It shall not be fair to conclude, therefore, that there was any manufacturing defect in this particular vehicle, in the absence of any cogent, expert evidence that the positioning of the censor was incorrect.  We tend to agree with the contention raised by the petitioner that the surveyor who was deputed to assess the loss, could not be stated to be an automobile expert in any manner. Although, the said surveyor has stated in the concluding para of his report that there was a manufacturing fault in the vehicle due to improper positioning of the censor, it is not understood how the surveyor could give such a finding.

     

    12.     The State Commission has concluded that the censor was located at such a place where it was easily disconnected and damaged and instead of protecting the driver of the vehicle, it could not protect itself from the impact. It may be true that the impact of the collision was caused in such a manner that the censor was broken and hence, it could not transmit message to the SRS Air bag System, but this factor does not lead to the conclusion that there was any manufacturing defect in the said vehicle in the absence of proper evidence.

     

    13.     The petitioners have further stated that the vehicle was delivered back to the complainant after carrying out the necessary repairs.  The complainant has been using the vehicle for a long time and the vehicle even travelled more than 1,00,000 Kms.  There is no denial on this ground from the side of the complainants.  Based on the overall analysis of the facts and circumstances of the case, it is apparent that the orders passed by the Consumer Fora below do not reflect a correct appreciation of the material on record and no case is made out for replacement of vehicle, or to provide the full value of the vehicle to the complainants.  The complainant himself stated that he escaped with minor injuries only, during the accident.

     

    14.     Based on the discussion above and the material on record, it is held, therefore, that the complainants have not been able to prove any manufacturing defect in the vehicle for which they may be held entitled for any compensation from the OPs.  This revision petition is, therefore, allowed and the orders passed by the consumer fora below are set aside.  The consumer complaint is ordered to be dismissed.