Haryana

StateCommission

CC/190/2015

NAVEEN KUMAR GARG - Complainant(s)

Versus

TOYOTA KIRLOSKAR MOTORS PVT. LTD. - Opp.Party(s)

DIVAY SARUP

08 Feb 2017

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint No.190 of 2015

Date of the Institution: 29.10.2015

Date of Decision: 08.02.2017

 

Naveen Kumar Garg S/o Sh.Ram Kumar Garg, aged 37 years, R/o H.NO.1655 Urban Estate-2, Hisar at present  R/o H.No.259, Sector 9-11, Hisar (Haryana).

…..Appellant

Versus

 

1.      Toyota Kirloskar Motor Private Limited, Regional Office (North)-4^th Floor, Ambience Corporate Towers, Ambience Island, National Highway No.8, Gurgaon-122001, Haryana, India through its duly Authorized person/Representative.

2.      Toyota Kirloskar Motor Private Limited, Registered office and Works-Plot No.1, Bidadi Industrial Area, Bidadi, Ramnagar district, PIN 562109, Karnataka, India through its duly authorized person/Representative.

3.      M/s Malik Automotives Private Limited, 14.5 Milestone, National High Way No.65, Chandigarh-Hisar Road, Hisar-125001 through its duly Authorized person/Representative.

                                                                             .….Respondents

 

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mr.Divya Sarup, Advocate counsel for the complainant.

                   Mr. Dhriti Sharma, Advocate counsel for the opposite party Nos.1 and 2.

                   Mr. C.R.Malik proxy counsel for Mr.J.S.Mann, Advocate counsel for the opposite party No.3.

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

 

It is alleged by the complainant that  he is working partner in the firm known as M/s  Shagun Roller Flour Mills, Hisar (In short “ Shagun Flour Mills”).  A vehicle make Tyota fortuner bearing registration No.HR-05-AJ-0099 was purchased by the said firm in the year 2013 from opposite party (O.P.) No.3. Vehicle was got serviced by Authorised dealer of O.P.Nos.1 and 2. He was using that vehicle for his personal use as far as his family. Said vehicle was being maintained by the firm properly.  On 01.06.2005  he was going from Hisar to  Chandigarh alongwith his wife and younger son, which was being driven by Sandeep. At about 6.00 A.M. when they were near village Malikpur a bus was seen coming from opposite side being driven rashly and negligently. To avoid accident his driver applied breaks due to which his vehicle went towards left side and hit a truck parked in the middle of the road without any indicator. Due to said collusion his vehicle was totally damaged. He received serious injury due to which his left arm was amputated.  Criminal case was registered at Police Station (P.S.) Ismailabad under FIR No.68 dated 03.06.2015.  He received injury because airbags of his vehicle did not open after accident whereas they should have opened immediately.  It is manufacturing defect and O.ps. be directed to pay Rs.80/- lacs as of compensation due to amputation of his left arm and other injuries alongwith interest @ 15% per annum from the date of accident  besides Rs.50,000/- for litigation etc.

2.      O.P. Nos.1 and 2 filed joint reply and O.P.No.3 filed separate reply controverting his averments.  It is alleged by O.P.Nos.1 and 2 that complaint was not maintainable because vehicle was used for business by  Shagun Flour Mills. It is commercial purpose and complainant is not covered by the definition of consumer.  This commission is also not having territorial jurisdiction because it is running business at Banglore. There is no manufacturing defect in this vehicle.  SRS (supplemental Restraint system) air bags in the car are designed to provide further protection to driver and front passenger in addition to primary safety provided by seat belts. SRS air bags system is designed to activate in response to a severe frontal impact. SRS air bags will deploy if severity of impact is above designed threshold level, comparable to an approximate 30 Km/h (15 MPH) collision when impacting straight into a fixed barrier that does not move or deform. If severity of the impact is below the above threshold level, SRS front air bags may not deploy. Further SRS air bags are not designed to inflate if vehicle is involved in a side collusion or under ride collision. The condition under which the air bags will open is explained in detail in the Owner’s Manual and also in 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 thrown frontward to the steering wheel or dashboard”.  In the safety booklet, further situation in which the air bags did not deploy is also mentioned. Complainant received his safety booklet at the time of purchase of said vehicle.  It is further submitted that after detailed investigation of complainant’s vehicle by technical team, it was clearly observed that complainant’s vehicle hit one truck which was wrongly parked, from left hand side. The major impact was basically on the left side body of the vehicle.  There was collision on left hand side and no frontal collusion.  SRS front airbags may not deploy, if the collision is from the side or at an angle as mentioned in investigation report.  He has alredy filed a petition before Motor Accident Claims Tribunal (MACT) bearing No.28 of 2016 titled as “Naveen Kumar Garg Vs. Bakshish Singh and others” for compensation on this count. So this petition is not  maintainable. Insurance company is necessary party, but, was not impleaded.  They supplied vehicle to O.P.No.3 on principle-to-principle basis.   Other averments raised by him are vague and indefinite.  There was no deficiency in service on their part and the complaint be dismissed.

3.      In addition thereto O.P.No.3 alleged that it is not concerned with manufacture of the vehicle and supplies the same as received from manufacturer. There is no expert evidence on the file to show that there was any manufacturing defect in the vehicle in question.

4.      Both the parties have lead their evidence.

5.      Arguments heard. File perused.

6.      Learned counsel for the complainant vehemently argued that vehicle in question was purchased exclusively for the use of the complainant though in the name of firm so it cannot be opined that it was used for commercial purpose and complaint is very much maintainable as opined by Hon’ble National Commission in  Controls & Switchgear Company Ltd. Vs. Daimlerchrysler India Pvt. Ltd. & Anr. IV (2007) CPJ 1 (NC).

7.      This argument is devoid of any force. There is no evidence on the file showing that the vehicle was being used for personal use of complainant. From the perusal of copy of registration certificate Ex.R-1 it is clear that the vehicle was purchased in the name of M/s Roller Shagun Roller Flour Mills.  On the basis of alleged resolution dated 01.04.2014 Ex.C-3 it cannot be presumed that it was meant for personal use. Firstly this resolution by itself is suspicious. This resolution is dated 01.04.2014 and there is not even a single fold therein. It appears that after accident this resolution has been prepared. 

8.      More so, as per this resolution this vehicle was to be used for all the directors and not only the complainant.  Whereas in para NO.3 of the complaint it is alleged by complainant that this vehicle was purchased for his and his family’s exclusive use.  This averment is controverting this resolution.

9.      More-over, when complainant entered witness box he nowhere stated that vehicle was purchased for his exclusive use. It was specifically stated by him that this vehicle was purchased in name of aforesaid firm.  It was also admitted by him in cross-examination that all the payments are made by firm qua this vehicle. So it cannot be presumed that it was meant for his exclusive use. When his pleadings were controverted by O.Ps. it was the bounden duty of the complainant to prove with cogent evidence that it was meant for his exclusive use. It is well settled preposition of law that pleadings cannot take place of evidence. As per opinion of Hon’ble National Commission expressed in General Motors India Pvt. Ltd. Vs. G.S.Fertilizers (P) Ltd.,  and India Automobiles (1960) Ltd. Vs. G.S.Fertilizers, decided on 07.02.2013 in first appeal No.723 of 2006 and 736 of 2006 if any vehicle is purchased by company then the same is to be considered for commercial purpose. Relevant portion of Para No.9  of  judgement i.e. India Automobiles Vs. G.S.Fertifilizers is reproduced as under:-

“We note that in his complaint before the State Commission the Respondent-complainant had clearly stated that the vehicle was purchased for the use of its Managing Director.  We agree with appellants’ contention that this clearly amounts to its purchase for a ‘commercial purpose’ since the Managing director of a private limited company would obviously not use this vehicle for self-employment to earn his livelihood but for ‘commercial purposes’ as a perk of his office.”

10.    After the opinion of Hon’ble National commission in the aforesaid case laws, it is clear that if anyone has purchased vehicle for commercial purpose such person cannot claim himself to be consumer.  In the present case vehicle was purchased in the name of M/s Shagun Roller flour  Mill and vehicle was to be used for this company.  It is no where alleged by complainant that he purchased this vehicle for earning his livelihood. When he has failed to prove this fact he cannot claim himself to be consumer.

11.    Complainant cannot derive any benefit from the cited case because the same is based on altogether different facts. In that case the complaint was filed by the company and not an individual member as in the present case and it is not proved that it was purchased for his personal use only. So  complainant is not covered by definition of consumer and  the complaint is not maintainable.  Hence the same is hereby dismissed.

 

February 8th, 2017             Urvashi Agnihotri                           R.K.Bishnoi,                                                                       Member                                             Judicial Member                                                     Addl. Bench                                                Addl.Bench             

S.K.