BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.582/2015

DATED ON THIS THE 9^th December 2016

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri Devakumar.M.C.

Member

1.     The complainant has filed the complaint under section 12 of the C.P.Act 1986, against the opposite parties, alleging deficiency in service and unfair trade practice and seeking a direction to pay Rs.3,00,000/- damages for causing mental agony, pain and suffering, physically, mentally and monetarily due to breach of contract along with interest at 12% p.a. from the date of accident till realization and to pay Rs.3,00,000/- for the loss suffered due to surrender of the privileged leave of 86 days inevitably availed due to the accident, with interest at 12% p.a. from the date of accident till realization, with cost of the proceedings and other reliefs.
2.     The complainant purchased the car, considering the explanation of opposite party No.2, regarding the safety and comfort in its Toyota Innova 2SV(E3) Diesel with 8 seater car.  The vehicle was delivered by opposite party No.2, on 28.02.2013, on payment of Rs.17,02,160/-.  On 21.12.2014, the car met with an accident, injuring the complainant and other inmates severely.  The complainant  suffered severe injuries to rib cage and suffered fracture in his pelvic bone and undergone surgery.  The doctor advice him to bed rest for three months. Thereby the complainant was inevitably surrendered his privileged leave for a duration of 86 days, which resulted in loss of superannuation benefits to the tune of Rs.3,00,000/-.  It was alleged that the said injury was caused due to non-deployment of the air bag provided in the car as assured by opposite parties.  This has been alleged as a deficiency in service in not providing proper service and false representation as unfair trade practice.  Hence, the complaint, seeking reliefs.
3.     Opposite party No.1 denies the allegation as false, in its version and pleaded that, it has delivered a vehicle only after a thorough check, for its quality and performance.  The relationship between opposite party Nos.1 and 2 is principal to principal basis.  It is pleaded that, based on the FIR lodged by the police, the vehicle was driven by the complainant in rash and negligent manner resulted in accident injuring the complainant and other inmates.  The air bags deploy only when there is a head on collusion with force exceeding the threshold.  The photographs produced clearly shows that the impact was on the right hand corner of the vehicle and not on head on collision, so no deployment of air bags.  The criteria for deployment of air bags were clearly explained in the owner’s manual.  There was no melting of the seat belt, which goes to show that the seat belt was not worn at the time of the accident, which lead to the injuries.  The air bag sensors were intact and functioning.  Hence, there is no deficiency in service and no unfair trade practice on the part of opposite party No.1 and prays for dismissal of the complaint.
4.     The opposite party No.2 in its version admits that, it is an authorised dealer of opposite party No.1, indulging in marketing of the products manufactured by opposite party No.1.  The products are of good quality.  It pleaded that upon inspection, the impact on the car was on the right hand side of the vehicle and the same was not a head on collision.  The sensors for the air bags were intact and functioning.  Further, the seat belt was not melted, this clearly, indicates that the complainant has not worn the seat belt at the time of accident.  The FIR lodged by the police confirms the rash and negligent driving.  As such, submits, there is no deficiency in service and unfair trade practice, hence, not liable to pay any damages and prays for dismissal of the complaint.
5.     To establish the facts, the complainant filed his affidavit in lieu of evidence and relied on several documents.  Both opposite parties lead their evidence by filing affidavit with several documents.  Written arguments filed and heard oral arguments of both side.  On perusing the material on record, matter posted for orders.     
6.     The points arose for our consideration are:-

1. Whether the complainant establishes the deficiency in service and unfair trade practice by the opposite parties, for causing damages, mental agony and loss and by selling a vehicle promising to be built for more comfort and safety, thereby he is entitled for the reliefs sought?
2.  What order?

7.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the negative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

8.    Point No.1:- The complainant intended to purchase a car, approached opposite party No.2, and satisfied with the information about performance, maximum safety and comfort, placed an order by paying an advance amount of Rs.50,000/- on 01.10.2012.  The vehicle has been delivered on 28.02.2013, on payment of a total sum of Rs.17,02,160/.  The car was subjected to periodical services as per service manual provided by opposite party No.2.
9.    The complainant while driving the car with seat belt fastened, lost control due to puncture of left front tyre and while controlling scraped another vehicle and with high speed rammed the drainage median head on and came to a halt.  Because of the impact, the complainant and co-passenger got injured severally.  The complainant suffered severe injuries to rib cage and suffered fracture of pelvic bone.  He has undergone a surgery at hospital and the doctor adviced for bed rest for a period of three months.   Due to the said accident, the complainant suffered monetary loss to the tune of Rs.3,00,000/-, on account of availing 86 days privileged leave, it was alleged that, the said injury was caused due to mal-functioning of the air bag provided in the car, which was to provide safety during head on collusion.  A case has been registered by the jurisdictional police.
10. Failure to provide proper services as assured has been alleged as deficiency in service, and unfair trade practice.  Hence, sought for the reliefs.
11. The opposite party No.1 contended that, the accident was occurred due to rash and negligent driving and not wearing of the seat belt has caused injuries to the complainant and other passengers.  The FIR also establishes the rash and negligent driving of the car by the complainant.  Further, the complainant made only bald allegation of mal-functioning of air bags system, without any expert evidence to prove the allegations.  The deployment of air bag system works only when there is a head on collusion with certain specified speed.  These facts have been clearly explained in the owner’s manual and safety book. Since the impact was not meeting the specified requirements, there was no deployment of air bag.  From the photographs produced, it is evident that, the impact was on the right hand side of the vehicle and not a head on collusion, hence, the non-deployment of air bags at the time of accident.  The air bags are in perfect working condition without any defects.  Since there was no melting of the seat belt, clearly indicates the complainant was not wearing the seat belt at the time of accident, as such, suffered injuries.  Further, the claims for loss due to surrendering of privileged leave is not accepted.  Hence, opposite party No.1 not liable to pay any damages for the allegation of deficiency in service and unfair trade practice and prayed for dismissal of the complaint.
12. Opposite party No.2 is the authorised dealer of opposite party No.1 indulged in marketing of products manufactured by opposite party No.1.  The products are recognised for its quality and preferred by most customers.  It contended that, non-deployment of air bag at the time of accident was not due to defects in the air bag mechanism.  The deployment of air bag works only when there is a head on collusion with certain specified speed.  The FIR lodged by the police also conforms the rash and negligent driving of the car.  The opposite party No.2 contended that there is no manufacturing defect as alleged by the complainant.  Hence, there is no lapses and deficiency in service by it.  As such, prays for dismissal of the complaint.
13. The complainant relied on the judgement rendered by the Hon’ble Supreme Court in V.Krishna Rao V/s Nikhil Super Speciality Hospital and another (2010 (5) SCC 513) but the same does not support the case of the complainant.  The judgements, Ravi Manira V/s Auto Industries Goa Pvt. Ltd. and others in Lajwanti V/s Volkswagen Group Sales India, rendered by the State Commission, supports the defences of opposite parties.
14. On perusal of the photographs and the material on record, it is evident that the car met with an accident on the road and got damaged on the front right hand side.  The deployment of air bags were designed to inflate only when the vehicle suffered a head on collusion.  Further, the injury sustained also confirms that, the complainant and co-passengers were not wearing the seat belt at the time of accident.  Since, the impact on account of the accident was severe in nature which resulted in serious injuries.
15. Further, financial loss was suffered due to availing of privileged leave is not justified and the same cannot be attributed due to deficiency in service and unfair trade practice.  Therefore, the ops not liable to pay any compensation to the complainant and the complaint is liable to be dismissed.  Accordingly, the point No.1 is answered in the negative.   
16. Point No.2:- In view of the above observations, we proceed to pass the following

:: O R D E R ::

1. The complaint is hereby dismissed. 
2. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 9^th December 2016)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT     

(M.V.BHARATHI)                           (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER