DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 137 of 20.4.2017
Decided on: 27.4.2018
Jatinder Singh son of Sh.Jaswant Singh, resident of House No.84/1, Amamgarh Mohalla, Samana, District Patiala.
…………...Complainant
Versus
1. Toyota Kirloskar India No.24, 10th Floor, Canerra Block,,Vittal Mallya Road, Bangalore-560001, Karnataka, India through its Dealership at Patiala i.e. OP No.2, EM Pee Motors Ltd.,
2. Em Pee Motors Ltd.(Pioneer Toyota, Patiala) Plot No.C-154-156, Focal point, Patiala through its Managing Director.
3. Globe Toyota Pvt.Ltd. 3K Stone, Ambala Road, New Bye Pass, Kaithal (Haryana) through its Managing Director.
…………Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Smt. Neena Sandhu, President
Smt. Neelam Gupta, Member
ARGUED BY:
Sh.Gagandeep Singh, Advocate, counsel for complainant.
None for opposite party No.1.
Sh.S.R.Bansal,Advocate, counsel for
opposite party No.2.
Sh.Bimal Kumar, Advocate, counsel for
opposite party No.3.
ORDER
SMT.NEENA SANDHU, PRESIDENT
Sh. Jatinder Singh, complainant has filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Parties (hereinafter referred to as the O.Ps.) .
2. In brief, the case of the complainant is that he is the owner of vehicle make Innova, bearing registration No.PB-11-BU-7679 having chassis No.MBJ11JV4007507634 and engine No.2KDS464887, Model 2015.. He purchased the said vehicle from Op No.3 in the month of December,2015, on the assurance of Op No.3 with regard to safety measures. It is stated that on 3.1.2017, the said car met with an accident at Sangrur-Bhawanigarh road with Tractor/trolley, as a result of which the vehicle was badly damaged but the lives of the occupants of the car were saved by God’s grace. It is stated that the airbags of the vehicle in question did not open by its own in the said accident while the same was very dangerous. The mechanic namely Sh.Gurjit Singh of Bhawanigarh, District Sangrur was called at the spot, who after inspecting the vehicle told that due to manufacturing defect the air bags of the vehicle did not open. The damaged vehicle was taken to OP No.2. The vehicle was repaired and the OP no.2 prepared a bill for a sum of Rs.5,65,284/-. Claim was lodged with the insurance company but it repudiated the same wrongly. Finding no other alternative, the complainant got served a legal notice dated 30.3.2017 upon the OPs but of no avail as the same was neither replied nor any response was given by the OPs. There is thus deficiency of service on the part of the OPs which caused mental agony and physical harassment to the complainant. Hence this complaint with the prayer for giving directions to the OPs to pay the amount of Rs.12,00,000/- as costs of vehicle according to its IDV or to replace the vehicle with new one having no manufacturing defects and giving facility of airbags of same model; to pay Rs.6,00,000/-as compensation for causing mental agony ,inconvenience and physical harassment; to pay Rs.1,00,000/-on account of loss caused to the complainant due to non use of vehicle for a period of more than one year; to pay Rs.22000/-as costs of litigation and also to grant any other relief which this Forum may deem fit.
3. On being put to notice, OPs appeared and filed their separate written versions, separately.
In the written version filed by OP no.1, preliminary objections have been taken that this Hon’ble Forum has got no territorial jurisdiction to try the case; that the complainant has no cause of action to file the present complaint against the OP; that the complainant is not consumer qua the OP and the same is liable to be dismissed. On merits, it is admitted that Op no.1 is the manufacturer of the vehicle in question and OPs No.2&3 are the dealers but it is stated that the relationship between the OP No.1 and OPs 2&3 is purely on principal to principal basis. Dealers purchase vehicles and parts from OP no.1 on payment of full price and they sell the same to customers at their end and the issues relating to booking, delivery, cancellation, servicing, customer relations, etc. are independently handled by dealers and for their acts and omissions, OP no.1 is not responsible. It is denied that non opening of the airbags was due to manufacturing defect.It is stated that the vehicle was equipped with all the features including airbags and all the features were working correctly. The reason for non deployment of air bags was off centre collision or collision was from an angle. As per investigation report, collected from the dealership concern, it was vehicle side impact and slow collision. Further it was found that the same was hit from front left hand side. In such type of collision, as per booklet of the vehicle, the airbags may not deploy in cases of side collision. Thus there is no defect as alleged by the complainant. After denying all other averments made in the complaint, it was prayed to dismiss the complaint.
In the written version filed by OP No.2, preliminary objections taken to the effect that the present complaint is not maintainable because the vehicle had already been sold to some other customer and the complainant is no more customer; that the complainant had already filed another complaint against the dealer and insurance company, which is pending before this Hon’ble Forum; that the present complaint is false, frivolous; and the same is liable to be dismissed. On merits, it is admitted that the vehicle met with an accident on 3.1.2017 and the same is lying ready since 28.2.2017. Since the complainant had sold the car in question, therefore he was not making payment inspite of making so many calls and letters. The complainant may be directed to collect the vehicle after paying repair bill charges, parking charges etc.It is admitted that a bill in the sum of Rs.5,65,284/- was made. No liability can be fastened against OP no.2 being a service provider, because neither he is an insurance company nor manufacturer. Therefore, there is no deficiency of service on the part of OP no.2. After denying all other averments made in the complaint, it was prayed to dismiss the complaint.
In the written version filed by Op no.3 preliminary objections have been taken that no cause of action has arisen to the complainant against it; that the complaint is false, frivolous and is liable to be dismissed. On merits, it is stated that the vehicle in question was sold to it on 27.1.2015. It is admitted that OP no.1 is authorized dealer of OP No.1. It is stated that the air bags of a vehicle open only when the sensors installed at specific points in the body of the vehicle react due to the nature of impact received by them and in case there is minor impact the effect of which is not upto the extent to which sensors deploy the air bags then in such case the air bags of the vehicle do not open. There is no deficiency of service or unfair trade practice on the part of the OP.After denying all other averments made in the complaint, it was prayed to dismiss the complaint.
4. On being called to do so, the ld. Counsel for the complainant has tendered in evidence Ex.CA affidavit of Sukhvir Singh, Ex.CB affidavit of Sh.Gurjeet Singh, Ex.CC affidavit of complainant alongwith documents Exs.C1 to C9 and closed the evidence of the complainant.
The ld. counsel for OP No.1 has tendered in evidence Ex.OPA affidavit of Sh.S.Rangarajan, G.M. Legal & Company Secretary alongwith documents Exs.OP1 to OP4 and closed the evidence of OP No.1.
The ld. counsel for OP No.2 tendered in evidence Ex.OPC affidavit of Sh.Sukhwinder Singh Parmar, Manager of OP No.2 alongwith documents Exs.OP5 to OP8 and closed the evidence of OP No.2.
The ld. counsel for OP No.3 has tendered in evidence Ex.OPB, affidavit of Mr.Deepak Kapoor, Authorized signatory of OP No.3 alongwith documents Exs.OP9 to OP13 and closed the evidence of OP No.3.
5. We have heard the ld. counsel for the complainant, gone through the written arguments filed by OP no.3 and have also gone through the record of the case, carefully.
6. The complainant has submitted that on 3.1.2017, the car in question met with an accident and got badly damaged but the air bags of the car did not open, which clearly shows that the air bags did not open, due to manufacturing defect. To corroborate this fact, the complainant has placed on record, a report, Ex.C8, given by Sh.Gurjit Singh and also the affidavit of said Sh.Gurjit Singh, Ex.CB. The complainant has also placed on record a certificate dated 6.9.2016, Ex.C7 issued by EM PEE Motors Ltd.,Patiala, to show that said Sh.Gurjit Singh was working with it as warranty admin, for the period from 21.1.2013 to 31.1.2015. On perusal of the aforesaid documents, we found that in none of the said documents, the academic qualification of Sh.Gurjit Singh has been found mentioned. Without knowing the academic qualification of Sh.Gurjit Singh, it is not possible to determine as to whether he is competent to give the expert opinion or not. As such, no reliance can be placed on the report given by said Sh.Gurjit Singh, to arrive at a conclusion that the car in question was suffering from any manufacturing defects. It is pertinent to mention here that in the safety book/manual, Ex.OP3, it has been mentioned that air bags are not deployed in all types of accidents, strictly speaking, air bags are meant to deploy when the occupants lives are threatened such as in a severe front collision when the occupants bearing seat belts are forcibly thrown frontward to the steering wheel or dash box. It is also mentioned that air bags may not deploy, if the collusion is from side. The copies of photographs, Exs. OP4 & OP7, depict that the car was hit from left hand side. The plea of the OPs that air bags did not deploy after accident as the vehicle impacted from left hand side, where the force of the collision was downward trolly, seems to be correct because in the manual / safety book, it has been categorically mentioned that the air bags may not deploy, if the collision is from side. Since there was no head on collision, therefore, non opening of the air bags, of the car in question, during accident, cannot be said to be the result of manufacturing defect. It may be stated here that no cogent and convincing evidence has been placed on record by the complainant, to convince this Forum that non opening of the air bags was on account of manufacturing defect. In this view of the matter, we do not find any merits in the complaint.Consequently, we dismiss the same, without any order as to costs. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.
ANNOUNCED
DATED:27.4.2018
NEENA SANDHU
PRESIDENT
NEELAM GUPTA
MEMBER
