State Consumer Disputes Redressal Commission
Mr. Ravi Manira vs Auto Industries Goa Pvt. Ltd. & Others on 8 May, 2015
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BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
PANAJI - GOA
C.C.No.12/13
Mr. Ravi Manira,
s/o Vasu Manira,
No.1010, 7th Main BEML, 3rd stage,
Rajarajeshwarinagar,
Bangalore 560 098. .........Complainant
V/s.
1. Auto Industries Goa Pvt. Ltd.,
Authorised dealers for Tata Motors and Fiat
NH 17, Gonvolloy, Nuvem, Goa
2. Tata Motors Ltd.,
Tata Motors Passenger Cars Business Unit,
5th Floor, One Forbes, Dr. V. B. Gandhi Marg,
Mumbai 400 001.
3. Fiat Group Automobile India Pvt. Ltd.
Benefice, 3rd Floor,
Mathuradas Mill Compound,
Lower Parel (West),
Mumbai 400 071. ..........Opposite Parties
Complainant is present in person
OP No.1 is represented by Adv. Shri. M. S. Joshi
OP No.2 is represented by Adv. Shri. S. Salgaonkar
OP No.3 is represented by adv. Shri Jonathan Costa
Coram: Shri Justice N. A. Britto, President
Smt. Vidhya R. Gurav, Member
Dated: 08/05/2015
ORDER
[Per Shri. Justice N. A. Britto, President] 2 This order shall dispose off the Complainant's consumer complaint claiming compensation from the OPs, in the sum of Rs.95 lacs.
2. Some facts need to be stated to dispose off this complaint.
3. The Complainant took a loan from HDFC Bank Ltd., Hubli branch, and purchased on 31/10/2010 from OP No.1, a car Fiat Linea manufactured by OP No.3 and registered the same under no. GA 06 D 5042 and insured the same with United India Insurance Company Ltd., Belgaum, with IDV of Rs.7 lacs under a policy which was valid from 7/11/2011 to 16/11/2012. The Complainant serviced his car with OP No.2.
4. The Complainant's car met with an accident on 1/07/2012, on the national highway no.4, near Timmapur, Tadas, while the Complainant was travelling from Bangalore to Belgaum. At that time, the Complainant's car had done about 57,454 kms. The Complainant informed his Insurer, United India Insurance Company, Belgaum, and filed his claim on 10/08/2012 and the Insurer, the said United India Insurance Company, Belgaum, appointed Basroor Surveyors to carry out the inspection and to tentatively compute the loss. The said Basroor Surveyors, inspected the Complainant's car on 4/10/2012 and by letter dated 1/03/2013 the Complainant was informed about the repairs to be carried out including the replacement of body shell assembly with airbags.
5. The Complainant has been given liberty to pursue his case against his Insurer by order of this Commission dated 21/04/2015 for reasons stated therein.
6. The case of the Complainant is that the accident took place because of failure of ABS and airbags which did not open on collision resulting in the Complainant sustaining serious injuries to his body 3 leading to dysfunctional right hand and consequential loss to his business. Further, the case of the Complainant is that he was travelling at a reasonable speed, however, due to heavy rains the car was skidding, and the Complainant applied brakes and while doing so the car tyre burst and the car hit a sign board and toppled to land head on in the nearby fields just a few meters away from service road.
7. The complaint has been contested by the OPs.
8. As per OP No.1, every car sold is under a warranty and the terms and conditions are mentioned in the booklet/ handbook supplied to every customer. OP No.1 stated that the Complainant has not pleaded anything to say that OP No.1 was negligent or deficient in providing service to the Complainant. OP No.1 also pleaded that this Commission has no jurisdiction to grant any relief to the Complainant as the accident had taken place near Timmapur on Bangalore to Belgaum National Highway.
9. OP No.2 pleaded that the Complainant had failed and neglected to follow the guidelines given in the operator's service book as recommended for smooth and better performance of the vehicle in question at optimum cost and that the Complainant failed to disclose that the Complainant's vehicle had met with an accident earlier at 26,500 kms. when it had been given for repairs on 23/08/2011. OP No.2 pleaded that the averments regarding the ABS, airbags and manufacturing defects in the vehicle were technical in nature and OP No.3 would be able to comment on the same.
10. OP No.3 also took the plea of jurisdiction as the alleged accident had taken place at Timmapur, Tadas in Karnataka and no part of the cause of action had arisen within the territorial jurisdiction of this State Commission. OP No.3 pleaded that the cause of alleged 4 accident was in no way caused by deficiency in service on the part of OP No.3. OP No.3 stated that the vehicles manufactured by it are of highest standards of quality and each customer purchasing such a vehicle is entitled to a warranty on the vehicle subject to the terms and conditions mentioned in the warranty booklet/ owner's manual furnished to the customers at the time of purchase and that upon purchase of the vehicle it is the prerogative as well as the duty of the customers to ensure that proper and timely service of the vehicle is carried out within the time frames prescribed in the owner's manual, to ensure the efficient functioning of the vehicle and its features, including bulbs, brake liners and tyres and that the Complainant failed and neglected to follow the guidelines given in the Owner's Manual. OP No.3 stated that the vehicle is factory fitted with front airbags for the driver and passenger to protect the occupants in the event of head-on collision or crashes of medium to high severity. OP No.3 reproduced the relevant instructions from the owner's manual and further stated that there was no failure of ABS and airbags which did not open on collision and which resulted in the Complainant sustaining serious injury on his head and right side of his body but on the contrary the accident occurred due to the Complainant's negligent usage of the vehicle totally against the instructions in the owner's manual which clearly defines the instructions and methods of usage for which the vehicle has been designed.
11. Since the Complainant claims that the accident was due to the failure of ABS and airbags it is necessary to have a look at these systems.
12. Shri J. Costa, the lr. advocate of OP No.3 has placed on record the instructions given by OP No.3, the manufacturer, as regards ABS. ABS stands for Anti-Lock Brake System. Anti-lock brakes are 5 designed to prevent skidding, and four wheel anti lock brakes help the driver to maintain steering control during maximal braking efforts. ABS uses electronic controls and sensors to control braking force during hard braking, while the driver steps on the brakes firmly without pumping them. Maximum brake force is achieved when the tyres are turning at a certain speed relative to the vehicle's speed (i.e. when the wheels aren't locked and skidding). ABS senses the rotation of the wheels and "pumps" the brakes for the driver, "trying" to keep the wheel speed close to the speed needed for optimal braking performance. More importantly, ABS prevents the vehicle from skidding out of control, and four-wheel ABS allows the driver to maintain the ability to steer around hazards in emergency braking situations. As to how brakes are to be applied, the instructions say that you should apply the brakes in the same manner whether you have ABS or not, and the vehicle should respond in exactly the same way. When you are coming to an "ordinary" stop, you should not be braking hard enough to activate the anti-lock braking system. During emergency situations, when you are trying to stop in the shortest distance possible, you should just step on the brake pedal as hard and as fast as you can. Do not pump the brakes! If your vehicle has ABS, pumping the brakes will not help you in any way, and can even be counterproductive. Just step on the pedal and let the electronics "pump" for you. The instructions also say that under most conditions, a vehicle with a good Anti-lock Brake System can stop in a slightly shorter distance than an average driver could accomplish in the same vehicle without ABS; however, that is not the main purpose of ABS, and the difference is generally not great enough to notice or be of any real use. ABS certainly doesn't improve your stopping distance nearly enough to justify driving faster or following more closely. ABS can actually lengthen stopping distances on some surfaces, such as loose snow, dirt, or gravel, because of effects that occur during locked-wheel skidding that are unique to those surfaces.
6The importance of ABS to you as a driver is that it helps you to retain control of your vehicle during a maximal braking effort. Without ABS, if you brake hard enough to lock your wheels, you will not be able to steer the vehicle, and the vehicle may skid sideways or spin around. Two-wheel ABS will prevent the vehicle from spinning out of control, and four-Wheel ABS will actually allow you to retain the ability to steer your vehicle while you are still braking.
13. Driver's front airbag consist of instant inflating cushion contained in a special recess in the centre of the steering wheel. As regards airbags, the owner's manual says that front driver/ passenger airbags have been designed to protect the occupants in the event of head on crashes of medium-high severity, by placing the cushion between the occupants and the steering wheel or dashboard. Front airbags are designed to protect car's occupants in front crashes and therefore non-activation in other types of collisions (side collisions, rear shunts, roll-overs, etc.) is not a system malfunction. An electronic control unit will make the bag inflate in the event of a frontal crash. The bag will inflate instantaneously placing itself between the front occupant's body and the structures which could cause injury. It will deflate immediately afterwards. Driver and passenger front airbags are not a replacement of but complementary to the belts, which you are recommended to always wear, as specified by law in Europe and most non-European countries. In the event of a collision, a person not wearing a seat belt may be thrown forward and come into contact with the bag before it has fully opened. The protection offered by the cushion is reduced in such a case. The front airbags may not be activated in the following situations:
In collision against highly deformable objects not affecting the car front surface (e.g. bumper collision against guard rail, etc.); Jamming of the car underneath other vehicles or protective barriers (e.g. underneath a truck or a guard rail); in this case, the bags would offer no additional protection with respect to the seat belt and their deployment is unnecessary. No 7 deployment in such cases is consequently not the sign of a fault. (emphasis supplied).
The airbags are not deployed in the event of collisions of low severity (for which withholding action of the seat belts is sufficient). For this reason, the seat belt must be worn at all times. In the case of side collisions, the seat belts hold the occupants in the correct position and prevent being thrown out of the car by a very violent collision.
14. The parties have filed their affidavits in evidence. We have perused the record and heard the Complainant in person and lr. advocates of the parties. OP No.2 has chosen to file the written submissions.
15. The Complainant would submit that on the date of accident the road was wet and it was drizzling. The Complainant would submit that because of the rain the car skidded and the Complainant applied the brakes and on account of application of brakes and due to friction two tyres burst and the car hit the divider and the 4 lane road and then landed head on. The Complainant would submit the aribags ought to have inflated and protected him but did not.
16. On the other hand, lr. advocate Shri Costa on behalf of OP No.3 would submit that as per the Complainant himself, it was a heavy rainy day, and, if that be the case there would have been no friction on application of brakes for any tyre to burst and it is more than probable that the tyre burst on account of the Complainant's car skidding and hitting the road divider. Shri Costa would submit that if the tyre had burst the Complainant was bound to lose control and in such a situation the ABS could be of no help to the Complainant. Lr. advocate would submit that the airbags might have worked only 8 incase there was frontal impact and not in case where the car had toppled on front after dashing against the road divider. Lr. advocate would submit that the Complainant has not produced any technical report nor produced the photographs of the car atleast to show how the accident had taken place nor sought that the inspection of his car should be carried out. Lr. advocate would submit relying on Indrani Mukherjee vs. Ashok Leyland Ltd. 2000 (3) CPR 143 that the Complainant examined no expert in support of his case.
17. On the point of jurisdiction, Shri Costa would submit that the cars are manufactured by OP No.3 in Pune, and OP No.3 have their head office at Mumbai and the Complainant has not obtained any permission from this State Commission as required under Section 17 (2) (b) of the Consumer Protection Act, 1986. Lr. advocate submits that OP No.3 has not acquiesced to the filing of this complaint before this Commission.
18. Shri Joshi, lr. advocate of OP No.1, would submit that there is no allegation in the complaint that there has been any deficiency in service on the part of OP No.1. Lr. advocate would further submit that the Complainant has admitted in his complaint that there was heavy rain and therefore cannot now say that there was only a drizzle. Lr. advocate submits that the Complainant was driving on a national highway and therefore must have been driving at a fast speed for his car to skid in the rain. In reply, the Complainant points out that he has relied upon the report of Basroor Surveyors appointed by his Insurer which shows that the engine had moved backwards proving thereby that there was frontal impact.
19. After the conclusion of arguments the Complainant has sent some information from Link: http://en.wikipedia.org/wiki/Aquaplaning about 9 Aquaplaning or hydroplaning and he has also sent two photographs taken on 08/08/2012. "Aquaplaning or hydroplaning by the tyres of a road-vehicle, aircraft or other wheeled vehicle occurs when a layer of water builds between the wheels of the vehicle and the road surface, leading to a loss of traction that prevents the vehicle from responding to control inputs. If it occurs to all wheels simultaneously, the vehicle becomes, in effect, an uncontrolled sled. Aquaplaning is a different phenomenon from water on the roadways merely acting as a lubricant. [citation needed] Traction is diminished on wet pavement even when aquaplaning is not occurring." One of the photographs shows the bumper intact but the bonnet crumpled. The other photograph shows damages to the right side of the car and also front tyre burst.
20. We propose to dispose off this complaint on merits though we find that OP Nos. 1 & 3 are prima facia right, in contending that this Commission has no jurisdiction to entertain this complaint, as the cause of action in filing the same took place within the State of Karnataka and OP No.3 has no branch office within the jurisdiction of this Commission, through which it carries on its business and no permission has been taken by the Complainant from this Commission as required nor OP No.3 has acquiesced to the filing of the same.
21. The case of the Complainant is based only on his self serving statements which may not be taken as gospel truth without corroboration. The Complainant has not produced any technical report to support the case pleaded by him. We have not been able to find anything which supports the case of the Complainant in the report of Basroor Surveyors, placed on record by the Complainant. There is not even an averment in the complaint that the Complainant was wearing a seat belt. The Complainant was driving on the 10 highway and must have been driving at a pretty high speed. Complainant has stated that due to heavy rain the car skidded. We are inclined to believe that car skidded because of speed and water on road due to heavy rain. The right hand front tyre of the car burst. We are inclined to believe that the right front tyre burst, not on application of brakes but on dashing the road divider or any other hard objection. ABS system would not have helped the Complainant once the car had skidded due to speed and heavy rain. The bumper would show that the car did not have front collision and therefore the Complainant could not expect the driver's airbag to work. If the car had hit sideways first and then toppled over, then the airbags would not have opened. As shown on the owner's manual, the front airbags are designed to protect the car's occupants in front crashes and therefore non-activation in other types of collisions i.e. side collision roll overs cannot be called to be a system malfunction. Complainant's case that he suffered injuries on account of failure of ABS and airbag systems lacks conviction is actually based on his self serving statements, and is otherwise not corroborated and therefore cannot be accepted.
22. We therefore proceed to dismiss the complaint, leaving the parties to bear their own costs.
[Smt. Vidhya R. Gurav] [Shri. Justice N. A. Britto ]
Member President
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