Punjab

Moga

CC/16/142

Saurabh Aggarwal - Complainant(s)

Versus

Toyota Kirloskar Motors Limited - Opp.Party(s)

Sh. Navin Kumar Palta

28 Dec 2016

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

 

                                                                                      CC No. 142 of 2016

                                                                                      Instituted on: 24.08.2016

                                                                                      Decided on: 28.12.2016

 

 

Saurabh Aggarwal age 35 years s/o Yudhishthar Aggarwal, r/o Ward no.6, Zira, Now resident of H.No. 30, Green Lane, Backside Geeta Bhawan, Moga, Tehsil and District Moga.

 

                                                                                ……… Complainant

 

Versus

1.       Toyota Kirloskar Motors Ltd. Head Office India no.24, 10^th Floor, Conserve Block Mittal Malya Road Bangalore, A.P. through its Authorized Signatory.

 

2.       A.N.R. Motors Pvt. Ltd. Castle Toyota G.T. Road, Pragpur, Jalandhar, through its Authorized Officer.

 

3.       Chadha Super Cars Pvt. Ltd., Radiant Toyota, Bughipura Chowk, Moga, Tehsil and District Moga, through its Manager.

 

                                                                           ……….. Opposite Parties

 

 

Complaint U/s 12 of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President

                   Smt. Vinod Bala, Member

                   Smt. Bhupinder Kaur, Member

 

Present:       Sh. Navin Kumar Palta, Advocate Cl. for complainant.

                   Sh. Rajiv Kumar, Advocate Cl. for opposite party nos.1 & 2.

                   Sh. M.S. Sethi, Advocate Cl. for opposite party no.3.

 

ORDER :

(Per Ajit Aggarwal,  President)

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the "Act") against Toyota Kirloskar Motors Ltd. Head Office India no.24, 10^th Floor Conserve Block Mittal Malya Road Bangalore, A.P. through its Authorized Signatory and others (hereinafter referred to as the opposite parties) directing them to replace the manufacture defective vehicle make Innova 2.5v (E3) Model 2012, engine no.129072, Chassis no.780912 and to give new Innova Car with air bags free from every type of defect. Further opposite parties may be directed to pay Rs.5,00,000/- as damages and compensation on account of endangering the life of complainant, mental tension and physical harassment caused by opposite parties alongwith future interest @ 2% per month from the date of accident till actual realization to the complainant or any other appropriate relief as this Forum deem fit and proper be also awarded.

2.                Briefly stated the facts of the case are that the complainant has purchased the vehicle Make Innova 2.5 v (E3) Model 2012, Engine no.129072, Chassis No.780912 from opposite party no.2 vide invoice tax memo dated 31.10.2012 for a consideration of Rs.13,73,395.44p. The complainant approached opposite party no.2 for the purchase of abovesaid vehicle, the opposite party no.2 assured him regarding the fixation of Air Bags for safety of life and assured that whenever the vehicle hits with something, the Air Bags open itself and save the life of persons sitting inside the vehicle. As per assurance given by the opposite parties, the complainant purchased the said vehicle. After purchase, the complainant used to visit the workshop of opposite party no.3 for service of the vehicle from time to time. The abovesaid vehicle was registered vide registration no.PB-09-R-0081. On 10.07.2016, the complainant alongwith his family members had gone to Himachal State on tour program. Near Village Chahnol, near Manali, Himachal Pradesh, the above said vehicle collided with car no.DL8CAJ-0463. But the air bags did not open. In that accident, the vehicle in dispute got damaged upto huge extent. The owner/driver of the above mentioned vehicle compromised with the complainant regarding the said accident and a writing in this regard was duly written between the parties. The features provided by the opposite parties were not upto the mark. The life of the complainant and his family members faced danger, as the air bags did not open itself. The vehicle in dispute was defective one as its air bags were not in working condition. Without air bags the car available in the market at the rate of Rs. 9 to 11 lacs only, but only to save life and any injury, the complainant spent the amount more than Rs.13 lacs. Due to non opening of the air bags, the complainant and his family members faced apprehension to their lives, they had to face mental stress, mental tension, harassment at the hands of opposite parties, due to sale of defective vehicle, which amounts to deficiency in service. The complainant approached to opposite parties a number of times with a request to replace the damaged vehicle with new vehicle, but to no effect. Hence this complaint.  

3.                Upon notice opposite parties filed their separate written replies. Opposite party no.1 filed their written reply taking certain preliminary objections that this Forum has got no territorial jurisdiction to try the top noted cases. The opposite party no.1 has its registered office in the State of Karnataka and neither has it any branch office nor carries any business within the territorial jurisdiction of this Forum; that SRS (Supplemental Restraint System) air bags in the car are designed to provide further protection to the driver and the front passenger in addition to the primary safety provided by the seat belts. SRS air bags system is designed to activate in response to a several frontal impact. SRS air bags will deploy if the severity of the impact is above the designed threshold level, comparable to an approximate 30 km/h (15Mph) collision when impacting straight into a fixed barrier that does not move or deform. If the severity of the impact is below the above threshold level, the SRS from air bags may not deploy. Further SRS air bags are not designed to inflate if the vehicle is involved in side collusion or under ride collision. The condition under which the air bags will open is explained in details in the Owner's Manual and also in the Safety Booklet of the vehicle. In the said Safety Booklet it is specifically mentioned "Air bags are not deployed in all types of accidents. Strictly speaking, air bags are meant to deploy when the occupant's lives are threatened such as in a severe front collision when the occupant's wearing seat belts are forcibly through frontward to the steering wheel or dashboard". In the safety booklet, the further situation in which the air bags did not deployed is also mentioned and the complainant received his Safety Booklet at the time of purchase of said vehicle. Further submitted that after detailed investigation of complainant's vehicle by technical team, it was clearly observed that complainant's vehicle had hit a car from front right hand side. The major impact was basically on the right hand side of the vehicle. There was collision on right hand side and no frontal collusion. It is submitted that SRS front airbags may not deploy, if the collision is from the side or at an angle. That the present complaint is not maintainable; that there is not deficiency in service or any unfair trade practice on the part of answering opposite party; that the complainant has got no cause of action to file the present complaint against answering opposite party. The complaint has been filed just to harass answering opposite party and with a view to get unjust enrichment/reliefs by abusing process of law which must be deprecated. Therefore, the present complaint is nothing but sheer abuse of process of law as such is liable to be dismissed at the threshold with costs; that the complainant is stopped by his own acts, conducts from filing of present complaint against the answering opposite party; that the complainant has put twisted facts which are not permissible under law. The complainant has put forth a story made up out of whole cloth and tried to hoodwink this Forum by concealing or suppressing material facts from this Forum, as such, the complaint is without modicum of merit and the complainant is not entitled to any relief as prayed for. On merits, it is denied that airbags did not open due to any defect in airbags whereas the reason for non deployment of air bags was off centre collision or collision was from angle. As per investigation report collected from the dealership concern, it is clear that it was vehicle side impact and slow collision. As per investigation of the vehicle, it was found that vehicle speed was slow at the time of collision (40 to 50 km/h) and the hit was from front right hand side. The conditions for deployment of airbags were not met as per safety book page no.4. The airbag system was also checked as per repair manual and the same was found in ok condition. The root cause was found after examination of the vehicle i.e. the vehicle was having impact on front right hand side (RHS) fender and front right side engine Hood. Hence, the collision did not meet the air bag deployment conditions. Further, it is submitted that due to offset collisions, the requisite conditions were not met for airbags deployment. Thus, there is no defect as alleged by the complainant. All other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with special costs has been made.

4.                Opposite party no.2 filed written reply reiterating the same facts as stated on behalf of opposite party no.1 and prayed for dismissal of the complaint.

5.                Opposite party no.3 filed written reply taking preliminary objections that the averments made in the complaint are vague, baseless and with malafide intent. The complainant has made misconceived and baseless allegations of defects without specific nature without relying on any evidence and deficiency in service without and documentary evidence in support of the allegations made in the complaint. As per own content of the complaint in para no.1 of the complaint that date of purchase of vehicle was 31.10.2012 and in para no.2 of the complaint stating that 'due to sale of defective vehicle', it is evident that present complaint has been filed after the period of two years on 24.08.2016 as such present complaint is time barred as per provision 24-A of the Consumer Protection Act. Further as per warranty obligation/condition, warranty is applicable for 1,00,000 km or upto three years which ever is earlier so even after the expiry of warranty etc. present complaint alleging any kind of defect in the said vehicle filed on 24.08.2016 is time barred. That this Forum has got no territorial jurisdiction in this particular case as no cause of action so far accrued within the territorial jurisdiction of this Forum. Further in this case, vehicle was purchased by the complainant from opposite party no.2 at Jalandhar. Further opposite party no.2 has no branch office in the territorial jurisdiction of this Forum and the complainant purchased nothing from opposite party no.3. Opposite party no.3 is not the branch office of the first opposite party or of the third opposite party at Moga. Further accident also caused outside the jurisdiction area of this Forum as such, present complaint is not maintainable and the present complaint should be returned to the complainant for presentation with appropriate Forum as per law. That opposite party no.3 is not the proper and necessary party to the present dispute; that the complainant has made misconceived and baseless allegations of defects without specific nature and without replying on any evidence in support of his case as required under section 13 (1) and its sub clauses of the C.P. Act; that the complainant is responsible for its own act and conduct in this particular case and also responsible for concealing material facts. From the facts, it is evident that complainant was driving vehicle in careless manner on single road at high speed without bearing seat-belts necessary under the Motor Vehicle Act and condition prescribed in safety manual of air bags. On merits, it is admitted that the complainant has purchased the vehicle make innova 2.5V (E3) model 2012, engine no.129072 chassis no.780912 from opposite party no.2. All other allegations made in the complaint have been denied and a prayer for dismissal of the complaint has been made.

6.                To prove the case, the complainant tendered in evidence his duly sworn affidavit Ex.C-1 alongwith copies of documents Ex.C-2 to Ex.C-16 and closed the evidence.

7.                On the other hand, opposite party nos.1 & 2 tendered in evidence duly sworn affidavit of Sh. Shrinivas P. Gotur, Deputy General Manager as Ex.OP-1, 2/1 and the other affidavit of Sh. Sachin Sharma, General Manager, A.N.R. Motors Pvt. Ltd. as Ex.OP-1, 2/2 alongwith copies of documents Ex. OP-1, 2/3 to Ex.OP-1, 2/6 and closed the evidence. Whereas, opposite party no.3 tendered in evidence duly sworn affidavit of Sh. Dharminder Singh, Legal Advisor/Authorized Signatory Ex.OP-3/1 and authority letter Ex.OP-3/2 and closed the evidence.

8.                We have heard the counsel for the parties and have very carefully gone through the record placed on file.

9.                Ld. counsel for the complainant argued that the complainant has purchased the vehicle make Innova 2.5 v (E3) model from opposite party no.2 vide invoice dated 31.10.2012, copy of same is Ex.C-6, which is manufactured by opposite party no.1. At the time of sale of vehicle, opposite party no.2 assured him regarding fixation of Air Bags for safety of life and assured that whenever the vehicle hits with some thing, the Air Bags open itself and save the life of persons sitting inside the vehicle. On the assurance given by opposite party no.2, the complainant purchased the said vehicle. After purchase of the vehicle, the complainant got service of his vehicle time to time from opposite party no.3 at Moga. On 10.07.2016, when the complainant alongwith his family gone to Himachal State on tour, then the vehicle in question met with an accident near Village Chahnol, near Manali, Himachal Pradesh from front side, but air bags of the vehicle did not open in that accident. The vehicle in dispute got damaged upto huge extent. Due to non opening of air bags at the time of accident life of complainant and his family members faced danger, as air bags did not open itself. Due to non opening of Air Bags complainant and his family member faced apprehension to their lives. They had to face mental tension, harassment mentally as well as physically. The vehicle in dispute was defective one as its air bags were not in working condition. The vehicle of the same category without air bags available in the market at very less rate, but the complainant purchased the said vehicle in question by paying more price only for the safety of life and any injury. Non opening of air bags at the time of accident, amounts to deficiency in service and trade mal practice on the part of opposite parties.

10.              On the other hand, ld. counsel for opposite parties argued that this Forum has no territorial jurisdiction to try and decide this complaint, as the opposite party no.1 has its registered office in Karnataka  and opposite party no.2 has its registered office in Jalandhar. Admittedly the vehicle in question was purchased by the complainant from opposite party no.2, which is manufactured by opposite party no.1. Neither opposite party no.1 nor opposite party no.2 has any office or branch at Moga within the territorial jurisdiction of this Forum, so this Forum has no territorial jurisdiction to tray and decide the present complaint. The SRS (Supplemental Restraint System) air bags in the car are designed to provide further protection to the driver and the front passenger in addition to the primary safety provided by the seat belts. SRS air bags system is designed to activate in response to a several frontal impact. SRS air bags will deploy if the severity of the impact is above the designed threshold level, comparable to an approximate 30 km/h (15Mph) collision when impacting straight into a fixed barrier that does not move or deform. If the severity of the impact is below the above threshold level, the SRS from air bags may not deploy. Further SRS air bags are not designed to inflate if the vehicle is involved in side collusion or under ride collision. The condition under which the air bags will open is explained in details in the Owner's Manual and also in the Safety Booklet of the vehicle. On complaint of the complainant opposite parties conducted detailed investigation of the vehicle of the complainant by their technical team and in that investigation it is observed that that the vehicle of the complainant hit a car from front right hand side. The major impact was basically on the right hand side of the vehicle. As per investigation of the vehicle, it was found that there was collision on right hand side and no frontal collusion. It is submitted that SRS front airbags may not deploy, if the collision is from the side or at an angle. The present complaint is not maintainable. There is no deficiency in service or any unfair trade practice on the part of answering opposite party. The complainant has got no cause of action to file the present complaint against opposite parties. The speed of the vehicle at the time of collision was slow (40 to 50 km/h) and the hit was from front right hand side. The conditions for deployment of airbags were not met as per safety book. It is wrong that air bags did not open due to any defect in the same, whereas the reason for non deployment of air bags was off centre collision or collision was from angle at the time of accident. It is clear that it was side impact and slow collision. The airbag system was also checked as per repair manual and the same was found in ok condition. The root cause was found that the vehicle was having impact on front right hand side (RHS) fender and front right side engine Hood. Hence, the collision did not meet the air bag deployment conditions. Due to off set collisions, the requisite conditions were not met for airbags deployment and there is no defect as alleged by the complainant. The present complaint has been filed just to harass opposite parties and with a view to get unjust enrichment/reliefs by abusing process of law. The present complaint may be dismissed with special costs.

11.              Now, it is admitted case of the parties that complainant purchased the said car from opposite party no.2, which is manufactured by opposite party no.1 and for the safety there are air bags are fixed in the said car. It is further admitted that vehicle in question met with an accident on 10.07.2016 and in that accident the air bags did not open. Now, first of all the objection of the opposite parties are that this Forum has no territorial jurisdiction to try and decide the present complaint, as the complainant purchased the vehicle in question from opposite party no.2 at Jalandhar, which is manufactured by opposite party no.1, who has have its office in the State of Karnataka. The vehicle met with an accident in the State of Himachal Pradesh. Neither opposite party no.1 nor opposite party no.2 have any branch office at Moga within the territorial jurisdiction of this Forum. So, this Forum has no jurisdiction to try this case. On this point, ld. counsel for complainant argued that as per section 11 (b) of Consumer Protection Act, a complaint shall be instituted in a District Forum within the local limits of any of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or (carries on business or has a branch office) or personally works for gain and u/s 11 (c) the cause of action, wholly or in part arises. Now, in the present case admittedly the complainant purchased the vehicle in dispute from opposite party no.2 at Jalandhar, which is manufactured by opposite party no.1, who have its dealership and authorized service station at Moga i.e. opposite party no.3. The complainant got periodically service of his vehicle time to time from opposite party no.3 at Moga. The complainant produced copy of service invoice issued by opposite party no.3 as Ex.C-16 to prove that the complainant got regular service of his vehicle from opposite party no.3, which is dealer and authorized service centre of opposite party no.1 at Moga. So, part cause of action arose within the territorial jurisdiction of this Forum and this Forum has jurisdiction to try and decide the present case.

12.              Now, the main dispute between the parties is that at the time of accident of vehicle, air bags of the vehicle did not open due to it complainant and his family members faced apprehension to their life. On this point, the defence of opposite parties is that SRS (Supplemental Restraint System) air bags in the car are designed to provide further protection to the driver and the front passenger in addition to the primary safety provided by the seat belts. SRS air bags system is designed to activate in response to a several frontal impact. SRS air bags will deploy if the severity of the impact is above the designed threshold level, comparable to an approximate 30 km/h (15Mph) collision when impacting straight into a fixed barrier that does not move or deform. If the severity of the impact is below the above threshold level, the SRS from air bags may not deploy. Further the air bags are not designed to inflate if the vehicle is involved in side collusion or under ride collision. The condition under which the air bags will open is explained in details in the Owner's Manual and also in the Safety Booklet of the vehicle. Further on the complaint of the complainant, the vehicle of the complainant was investigated by technical team of opposite parties, who submitted their report, copy of the same is Ex.OP-1, 2/4 and in that report it is observed that the vehicle in question hit a car from front right hand side. The major impact was basically on the right hand side of the vehicle. There was collision on right hand side and no frontal collusion. The SRS front airbags may not deploy, if the collision is from the side or at an angle. As per investigation report, the speed was slow at the time of collision ( 40 to 50 km/h) and the hit was from front right hand side. The condition was not met for airbag deployment as per safety book page no.4. The airbag system was also checked as per repair manual and found in ok condition. The root cause was found after examination of the vehicle i.e. the vehicle was having impact on front right hand side (RHS) fender and front right side engine Hood, so the collision did not meet the air bag deployment condition and there is no defect in the air bags as alleged by the complainant. Now, the case of the opposite parties is that the vehicle did not meet with the condition of deployment of air bags at the time of accident. SRS air bags will deploy if the severity of the impact is above the designed threshold level, comparable to an approximate 30 km/h (15Mph) collision and in case the vehicle met with accident with side collision, then in that case air bags will not open. Now, in the present case, the opposite parties investigated the matter regarding the vehicle in question and in their investigation report they admitted that vehicle in question met with collision at the impact 40/50 km/h, whereas as per their own specifications the impact should be comparable to approximate 30 km/h collision, which is in the present case more than their own specification. The further plea of the opposite parties is that as per their safety book air bags will deploy when there is impact from front side and SRS air bags are not designed to inflate if the vehicle is involved in side collusion or under ride collision. In the present case, the opposite parties themselves admitted that the vehicle was hit from front right hand side and the major impact was on right hand side of the vehicle. The vehicle was having impact on front right hand side (RHS) fender and front right side engine hood. The complainant produced copy of photographs of damaged vehicle in question as Ex.C-14 and C-15. Opposite party nos.1 & 2 also produced photographs of the vehicle in question in damaged condition as OP-1, 2/5. From the perusal of these photographs it is clear that the vehicle was badly damaged from the front side mainly on its right hand side and the vehicle collided with other vehicle from the front. The opposite parties themselves admitted the impact of the accident from front right hand side. So, they cannot say that the vehicle did not meet with the condition of deployment of air bags. Moreover, the opposite parties submitted that the condition under which the air bags deploy were explained and detailed in Safety Booklet and they produced copy of Safety Booklet as Ex.OP-1, 2/6. They have mentioned air bags deployment condition alongwith pictures, in which, the condition of collision, airbags deployment conditions is mentioned. In these pictures they show the angle from which collision, the airbags will deploy or not. As per these pictures, if even the vehicle collided on his front right hand side then in that case also airbags will deploy. For the convenience, the scanned copies of relevant portions are reproduced as under:-

                   From these pictures, it is clearly proved that the collision of the vehicle in question met with the conditions of deployment of airbags. Moreover, at the time of accident you cannot presume to hit the vehicle from the particular angle to open the airbags. The consumers purchased the vehicle with air bags and other safety features by paying much more price than the vehicle without said function only for the safety of life in case of accident and or any other mishap. Now, the companies cannot safe their skin for non-functioning of safely features in the accident only on false excuses.

13.              From the above discussion, we are of the considered opinion that the security features of the vehicle in question and air bags of the vehicle were not upto the mark, as it does not open at the time of accident due to which, it caused apprehension to the lives of complainant and his family members, which amounts to deficiency in service and trade mal practice on the part of opposite parties. Hence the present complaint in hand is hereby allowed and opposite parties  are directed to pay Rs.3,00,000/-(Three lakhs only) as compensation on account of mental stress, tension and harassment suffered by the complainant and his family members due to defect in airbags, which was not opened at the time of accident and Rs.5000/-(Five thousand only) as litigation expenses to the complainant jointly and severally. Compliance of the order be made within one month from the receipt of copy of this order. In case, the opposite parties failed to comply with the order within stipulated period then in that case, the complainant shall be entitled to receive the interest @ 9% per annum on the amount so awarded from the date of this order till realization. Copy of the order be supplied to the parties free of costs. File be consigned to record room.

Announced in Open Forum.

Dated: 28.12.2016.

 

                               (Bhupinder Kaur)                 (Vinod Bala)         (Ajit Aggarwal)

                                     Member                     Member                President