State Consumer Disputes Redressal Commission
Sukhdeep Singh Bhinder vs Em Pee Motors Ltd. on 20 December, 2018
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 795 of 2017 Date of Institution : 15.11.2017 Date of Decision : 20.12.2018 Sukhdeep Singh Bhinder S/o Pritpal Singh Bhinder R/o House No.2376, Sector 65 (Phase 11) SAS Nagar, (Mohali). ......Complainant. V e r s u s 1. EM PEE Motors Ltd., Pinoeer Toyota, Plot No.182, Industrial Area, Phase-2, Chandigarh through its Branch Manager. 2. EM PEE Motors Ltd., Pioneer Toyota, Plot No.C-154-156, Focal Point, Industrial Area, Patiala - 147001, through its Branch Manager. 3. EM PEE Motors Ltd., Pioneer Toyota, Dabwali Road, Near Focal Point, Bathinda - 151001 through its Branch Manager. 4. Toyota Kirloskar Motor Private Limited, Plot No.24, 10th Floor, Canerra Block, Vittal Mallya Road, Bangalore - 560001, Karnataka, India, through its Managing Director. ...... Opposite Parties. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. RAJESH K. ARYA, MEMBER.
Argued by:
Sh. Dilraj Singh Bhinder, Advocate for the complainant.
Sh. S. R. Bansal, Advocate for Opposite Parties No.1 to 3.
Sh. Sanjeev Sharma, Advocate for Opposite Party No.4.
PER RAJESH K. ARYA, MEMBER The facts in brief are that the complainant purchased Toyota Innova from Opposite Party No.2 - EM PEE Motors Ltd. on 06.06.2014 for Rs.14,27,558/-, which was registered as PB 03 AB 1919. The said vehicle was manufactured by Opposite Party No.4 - Toyota Kirloskar Motor Pvt. Ltd. At the time of purchase, it was assured to the complainant that the said vehicle was defect fee and will not give any trouble as it is an international brand. It was further assured that in case of any defect, full service would be provided. From the very beginning and from time to time, the vehicle was got serviced by the complainant from Opposite Party No.1.
2. On 07.06.2017, the vehicle, in question, met with an accident in Civil Lines Bathinda, when the complainant and his wife were travelling from SAS Nagar, Mohali to Bathinda. In that accident, the vehicle was badly damaged from front right hand side (driver side) thereby causing a total loss of Rs.4,05,288/- i.e. 28.37% of total value of the vehicle. It was stated that the right hand side suspension, steering column and actuator assembly (brake) alongwith other major parts were also damaged. The vehicle was taken to the authorized dealer i.e. Opposite Party No.3, where all repair work was done. It was stated that at the time of accident, driver and the co-passenger sitting on the front seats were wearing seat belts. It was stated that it was top V end model vehicle assuming it to be best and safe vehicle as it is having dual front airbags, ABS alongwith other safety features. It was further stated that due to non-deploying/opening of airbags, the complainant and other occupants of the vehicle experienced huge shock and even minor injuries. It was further stated that had the airbags opened, then the same would have not happened. It was further stated that because of impact of accident and non-opening of airbags of the vehicle, the complainant and co-passenger remained in shock and agony for many days. It was further stated that during last four years after purchase of the vehicle by spending such a huge amount, the complainant remained under impression that in case of any mishap, the vehicle is totally safe as the same is fitted with the airbags and the same would protect the complainant from loss of life.
3. It was further stated that the aforesaid acts of the opposite parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the opposite parties, to pay Rs.14,27,588/- as sale price of the vehicle, Rs.5 Lakh towards compensation, Rs.5 Lakhs towards mental agony/toruture, Rs.1 Lakh for harassment and Rs.50,000/- as litigation expenses. Interest @18% p.a. on the aforesaid amounts from the date of filing the complaint till actual realization has also been claimed.
4. Opposite Parties No.1 to 3, in their joint written statement, took up certain preliminary objections, to the effect that this Commission does not have the pecuniary jurisdiction as also the territorial jurisdiction to try this complaint because the vehicle, in question, was purchased from Em Pee Motors, Patiala, not even a single transaction had ever taken place at Chandigarh, the complainant is resident of Mohali, Punjab and the vehicle was manufactured at Bangalore. Maintainability of complaint has also been challenged on the ground that the complainant has inflated the claim without any documentary evidence and proof causing harassment. It was further stated that when the vehicle has been repaired and the complainant signed the satisfaction note in response thereto and further the claim was availed from Oriental Insurance Company Ltd., the present complaint is not maintainable.
5. On merits, while admitting the factual matrix of the case, it was stated that as per information given by the driver of the car, namely, Ms. Parminder Kaur, a tractor trolley was coming from front side which hit the driver side of the vehicle. It was further stated that since it was not a head on collision, therefore, the airbags did not open. It was further stated that the airbags are supposed to open only if it is head on collision, severe frontal collision, hitting a curb, due to extremely high speed, landing hard of falling and not from the side, from the rear side or vehicle roll over. It was further stated that the complainant has no case, in any manner, whatsoever and the vehicle was badly damaged from the driver side and not from the front side. It was further stated, that neither there was any deficiency, in rendering service, on the part of opposite parties no.1 to 3, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. Opposite Party No.4, in its written statement, took up a preliminary objection that the complaint is liable to be dismissed for non-joinder of necessary party as the Insurance Company, who indemnified the claim qua the loss occurred to the vehicle, has not been impleaded in the complaint as opposite party.
7. On merits, it was stated that SRS (Supplemental Restraint System) Airbags 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. It is further designed to activate in response to a severe frontal impact. It will only deploy if the severity of the impact is above the 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 the severity of the impact is below the above threshold level, the SRS front airbags may not deploy. They are not designed to inflate if the vehicle is involved in a side collision or under ride collision. The condition under which the airbags will open is explained in detail in the Owner's Manual and also in the Safety Booklet of the vehicle.
8. It was further stated that the complainant never intimated opposite party no.4 about non-deployment of airbags and the survey by the insurance company and repair was done without any intimation to the answering opposite party. It was further stated that in case the complainant had intimated, opposite party No.4 could have done proper and detailed inspection of the vehicle by its technical team and thorough investigation would have been conducted to find out the reason for non-deployment of airbags as alleged by the complainant. It was further stated, that neither there was any deficiency, in rendering service, on the part of opposite party no.4 nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
9. The complainant filed rejoinder, wherein he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of opposite party No.4.
10. The parties led evidence, in support of their case.
11. We have heard the Counsel for the parties and have gone through the evidence and record of the case, carefully.
12. First dealing with the objection raised by opposite parties no.1 to 3 that this Commission does not have the pecuniary jurisdiction, it may be stated here that according to Section 17 of the Act, the State Commission shall have jurisdiction to entertain the complaints, where the value of the goods or services and compensation, if any claimed, exceeds Rs.20 lacs but not exceeds Rs.1 crore. Similar view was expressed by larger Bench of the Hon'ble National Commission, in a case titled as 'Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd.', Consumer Case No.97 of 2016, decided on 07.10.2016. In the present case, the value of the vehicle, in question, including VAT, cess etc. is Rs.14,28,571/-. If the total value of the vehicle, in question, plus compensation claimed by the complainant, is added, it will definitely fall above Rs.20 lacs and below Rs.1 crore and as such, this Commission is vested with pecuniary jurisdiction. In view of above, objection raised by opposite parties no.1 to 3, in this regard, being devoid of merit, must fail and the same stands rejected.
13. The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not. According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, the complainant has specifically stated that he took the delivery of the vehicle at Chandigarh from opposite party No.1, though it was purchased from opposite party No.2 from Patiala vide Invoice (Annexure C-1) issued in the name of the complainant. The complainant has also filed his detailed affidavit in support of this contention. On the other hand, opposite parties No.1 to 3 have filed short affidavit in support of their reply. In his rejoinder, the complainant has stated that Opposite Party No.4 is manufacturer and the vehicle manufactured by it is sold at Chandigarh so the complaint is maintainable. Opposite Parties No.1 to 3 could have placed on record any document or Gate Pass to show that the delivery of the vehicle was taken by the complainant at Patiala and not at Chandigarh but in the absence of any such evidence, we believe the submission of the complainant that he took the delivery of the vehicle at Chandigarh. It may also not be out of place to mention that the Head office of EM PEE Motors Ltd. is situated in Chandigarh. Since a part of cause of action arose to the complainant at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The submission of opposite parties No.1 to 3, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
14. The next objection raised qua maintainability of complaint on the ground that inflated claim is being raised by the complainant without any documentary evidence and proof causing harassment, it may be stated here that the objection raised is not sustainable in the eyes of law. The complainant is claiming refund of the price of the vehicle plus compensation on account of harassment, mental agony etc. Looking at peculiar facts and circumstances of this case, wherein the complainant has averred risk to his life due to non-opening of airbags in the accident, the relief claimed is not inflated. Therefore, this objection is also rejected.
15. So far as the objection raised by Opposite Party No.4, in its reply, qua non-joinder of necessary party i.e. the Insurance Company, who indemnified the claim qua the loss occurred to the vehicle, is concerned, it may be stated here that in this complaint, the complainant is claiming relief for deficiency in rendering service, harassment, mental agony, risk to his life and the co-passenger, on account of non-opening of airbags in the accident. No doubt, the claim was indemnified by the Insurance Company but the risk posed to the life of the complainant, on account of malfunction/non-opening of airbags cannot be ignored. Role of Insurance Company on indemnification of the claim ends. In the rejoinder also, the complainant has stated that Insurance Company is not necessary party. Therefore, in our opinion, the Insurance Company is not a necessary party. Objection raised in this regard is rejected being not tenable.
16. Now coming to the merits of the case, it may be stated here that it is the case of the complainant that the airbags of the vehicle, in question, due to the impact of the accident, did not inflate, due to which the complainant, who was driving the vehicle at that point of time and the co-passenger sitting alongwith him in the front side, suffered injuries and which also posed threat to their lives. On the other hand, it is stand of opposite parties No.1 to 3 that accidental impact was only on one side of the car and as per instructions contained in the User Manual, in the event of severe collision or head on collision, only airbags were to be deployed. In the rejoinder, the complainant categorically stated that the front portion of the vehicle was badly damaged as is clear from photographs attached by Opposite Party no.4 in evidence. The complainant in the rejoinder also stated that he got the vehicle insured at his own expenses and the payment by Insurance Company has nothing to do with the manufacturing defect in the vehicle. We have seen the documents placed on file. Annexure R-4/2 are photographs of the vehicle, in question, which clearly depicts that it was a severe accident. In the said accident, the car was hit from its front driver side causing complete damage to the right hand frontal side. Damage caused also appears to be severe. Chassis of the car might have been effected. In such a severe impact, when a person will expect airbag to open. The stand of the opposite parties that airbags are supposed to open only if it is head on collision, severe frontal collision, hitting a curb, due to extremely high speed, landing hard of falling and not from the side, from the rear side or vehicle roll over is not acceptable. It means that a person, who bought such a high end car with all modern safety features, should not expect the airbags to open till it is a head on collision or out of the one mentioned above. Safety is the foremost concern when driving a vehicle. At the time of selling a vehicle, many assurances qua safety features, braking etc. are given to the consumers but when such like situation arises, lame excuses are given by the companies or dealers. Defending cases on such like grounds of instructions given in User Manuals qua airbags deployment etc. in specific condition, by company shows their disregard towards human safety, which has to be their prime concern. Perusal of Job Order/Repair bills (Annexure R-4/3 colly.), placed on record by opposite party No.4 corroborate the fact that the damage caused to the vehicle was extensive. It is important to mention here that as per jobs done at Pages 64-65 of these job sheets, jobs related to Front Bumper Cover - Paint & Replacement, Radiator Support Sub Assembly - Paint & Replacement, Bracket Front Bumper, Moulding Front Bumper, Grill Assy. Radiator, Grill Radiator LWR etc. were carried out, which further clearly establishes that the impact at the time of accident, was not less than head on collision. The airbags did not deploy, which posed life threat to the complainant and also to the co-passenger, who suffered injuries in the said accident.
17. It is important to mention here that in the instant case, no report of any expert is required as the facts speak for themselves. It is a case of Res Ipsa Loquitor where the heavy impact of accident can easily be seen from pictures placed on record. Thus, a faulty vehicle was sold to the complainant by the opposite parties, since while selling the vehicle they claimed that it had world class safety features, including the state of the air bag system, which protects the passengers in the event of an accident, whereas in fact, the air bags did not deploy despite heavy impact. The opposite parties have indulged in unfair trade practice, by projecting the safety features of their vehicle to be amongst the best in the market. The impact of the accident was big & sudden, however, surprisingly, the air bags did not deploy, which resulted in causing injuries to the complainant and the co-passenger traveling in the car. In fact the air bags are meant to protect the driver and the passengers from severe injuries in a frontal or side collision. They are further designed to provide further protection in addition to the primary safety provided by seat belts. In the instant case, the non-functioning of the air bags is a total failure of engineering which could be more fatal, hence it appears that the car, in question, has got major defect, which could be discovered only at the time of such an accident as had happened in the instant case.
18. As regards the arguments of the Counsel for the opposite parties that on account of the vehicle, in question, met with an accident, the warranty comes to an end, it may be stated here that as discussed above, the argument raised is totally absurd. The accident is not predictable. It can happen anytime, anywhere and with anyone, while travelling on road. When we talk about four wheeler, as the one involved in the present case, with airbag facility, it has to be with lifetime durability. The fact is that the airbags fitted in the vehicle should protect him/her at the time of accident, which cannot be predicted. A person buys such a high end car with thinking that the Airbag feature will protect him or his co-passenger from impact of the accident. However, in the instant case, it did not happen as the airbags of the vehicle, in question, did not inflate.
19. It may be stated here that before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, in Revision Petition No.1014 of 2016 titled as "Hyundai Motor India Ltd. Vs. Leela Shu & Anr.", decided on 25.04.2016, the defence set up by opposite party No.2 in that case was that the impact of jerk could not reach upto the censor, as a result of which, the Air Bags did not deploy. It was further the stand of the opposite party that as per the manual, airbags did not deploy if the collision is not severe or having impact of below 30 degree. It was further stated that airbags will not deploy if the collusion took place from side direction of the vehicle. It was argued by the Counsel for the petitioner that the complainant did not adhere to the terms and conditions described in the manual of the car and under all these circumstances, the airbags of the car could not deploy. After hearing arguments, the Hon'ble National Commission in Para 9 of the judgment held as under:-
"9. All these arguments have left no impression upon us. The facts of this case speak for themselves. This is a case of accident. There is not even an iota of evidence, which may go to prove that the instant case comes within the above said exception. Learned counsel for the petitioner/opposite party has tried to make an attempt to louse up the real issue. A person spent huge amount to save his life but this case clearly goes to show that the complainant was taken for a ride. Opposite Party No. 2 has given a lame explanation by stating that impact of jerk could not reach upto the censor as a result, the Air Bags could not deploy. Sale of extra Air Bags amounts to cheating and fraud with the innocent customers. Such like Air Bags further endanger the lives of the customers. The customers think that their lives would be saved because they are armed with Air Bags. The opposite party/Hyundai Motors India Ltd. is collecting crores of rupees from innocent customers throughout the country on the pretext of life saving Air Bags. So many customers are lead up the garden path. This is a very serious matter and the Hyundai Motors India Ltd. should stop selling such like vehicles with Air Bags unless or until they are cent percent without flaws of any kind."
20. In Cg Power & Industrial Solutions Limited Vs. Mercedes Bens India Pvt. Ltd. & Ors, Consumer Case No.51 of 2006 decided on 11.09.2017, relied upon by the complainant, the Hon'ble National Commission, New Delhi awarded an amount of Rs.5 Lakhs for deficiency in services rendered on account of the airbags of the car having not deployed/triggered besides additional Rs.5 Lakhs as compensation for unfair trade practice indulged into by the opposite parties No.1 & 2 and Rs.25,000/- was ordered to be paid towards cost of litigation. While awarding the above relief, the Hon'ble National Commission also directed that in the Owner's Manual to be provided to the buyers of their E-Class Cars, as well as on their website, provide adequate information with respect to the deployment/triggering of the airbag of the vehicle, in consultation with AAUI.
21. It may also be stated here that under somewhat similar circumstances, this Commission dismissed Appeal bearing No.38 of 2017 titled ' Hyundai Motor India Ltd. Vs. Baljeet Singh & Anr.' on 03.03.2017 wherein in Para 5, it was held, inter-alia, as under:-
"5.........We have seen the file of the Forum which is available with us. The photographs (C-2) available on record, clearly depict that it was a severe accident. The car had struck against a tree from its front side causing damage to the right hand frontal wheel. Damage caused also appears to be severe. Chassis of the car might have been effected. If on such an impact, airbag sensors will not act, then when. It is on record that due to accident, minor injury was caused to the son of the complainant - a co-passenger. Sensors appear to be placed where the car had struck against the tree i.e next to the right side front wheel. From the very fact that sensors were intact and failed to act, it can safely be said that there was some manufacturing defect in the car."
In the instant case also, as discussed above, after such a heavy accidential impact, the airbags of the vehicle, in question, did not deploy, which doubts the quality and make of the said vehicle.
22. However, looking to the threat posed to the life of the complainant and the co-passenger because of non-deployment of the airbags in the accident and the unethical stand taken by the opposite parties in order to debar the complainant from compensation on that account, the complainant, in our considered opinion, is certainly entitled to compensation on aforesaid count. Therefore, compensation to the tune of Rs.5,00,000/-, if awarded to the complainant, would meet the ends of justice.
23. For the reasons recorded above, we partly allow the complaint with cost. The Opposite Parties are, jointly and severally, held liable and directed as under:-
(i) to pay an amount of Rs.5,00,000/- to the complainant, as consolidated compensation for deficiency in the services rendered on account of the airbags of the car having not deployed/triggers and also on account of mental agony and physical harassment suffered by him,
(ii) to pay an amount of Rs.33,000/- to the complainant as cost of litigation.
(iii) In case, the order is not complied with and the aforesaid awarded amounts at Clauses (i) & (ii) are not paid to the complainant by the opposite parties within a period of 45 days from the date of receipt of a certified copy of this order, the said amounts shall be payable by the Opposite Parties alongwith interest @12% per annum from the date of filing the complaint till actual payment;
24. Certified Copies of this order be sent to the parties, free of charge.
25. The file be consigned to Record Room, after completion.
Pronounced 20.12.2018.
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT (RAJESH K. ARYA) MEMBER Ad