National Consumer Disputes Redressal
Master M.A. Gadaffi vs Mercedes Benz India Ltd. on 27 April, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELH I Original Petition No. 106 OF 1999 1. Master M.A. Gadaffi, S/o late Mr. Meeran Malik, aged about 9 years, R/o No. 10, 3rd Main Road, Mharaja Nagar, Palayam Kottai, Tirunelveli, Through their guardian and paternal grandfather Mr. S.A. Ghani (complainant No. 3) 2. Master M.A. Akram, S/o late Mr. Meeran Malik, aged about 6 years, R/o No. 10, 3rd Main Road, Mharaja Nagar, Palayam Kottai, Tirunelveli, Through their guardian and paternal grandfather Mr. S.A. Ghani (complainant No. 3) 1 & 2 through their paternal grandfather Mr. S.A. Ghani 3. Mr. S.A. Ghani, (died during the pendency of complaint and names of Saharvhan, Begam Bara, Seema, Sabir Mohammed, Riyas Gani & Nilofar Yasmin have been allowed to be substituted in his place Complainants Versus 1. Mercedes Benz India Ltd., Through its Managing Director Chikhali Village, Pune-411 018 2. V.S.T. Motors, Through its Proprietor, Poonomalee Bye-pass Road, Poonmalee, Chennai-600 056 Opposite Parties BEFORE: HONBLE mR. JUSTICE K.S. GUPTA, PRESIDING MEMBER HONBLE MR. JUSTICE R.K. BATTA, MEMBER For the Complainant : Shri G. Umapathy, Advocate with Shri M.M. Manivel, Advocate For Opp. Party No. 1 : Shri M.S. Pandit, Advocate For Opp. Party No. 2 : Shri Pravesh Thakur, Advocate with Shri V. Balaji, Advocate Pronounced on 27th April, 2010 ORDER
JUSTICE K. S. GUPTA, MEMBER Complaint was filed by complainant Nos. 1 and 2, minors through their paternal grandfather-S.A. Ghani, complainant No. 3 and complainant No.3, interalia, alleging that a Mercedes Benz. Car E-250 D (bearing Regd. No.TN 72 J 8888) was purchased by Sabari Malik, mother of complainants 1 and 2 on 22.2.1997 for a sum of Rs. 22,53,501/- from opposite party No. 2. Opposite party No. 1 is the manufacturer-cum-distributor of the car while opposite party No. 2 is the authorised dealer of opposite party No. 1. It was alleged that on 10.8.1997 at about 2.30 p.m. Meeran Malik, father of complainant Nos. 1 and 2 and his wife Sabari Malik accompanied by M.K.M. Buhari and his wife Pathimuthu Zamila Beevi were returning after attending a social ceremony at Nagercoil by the said car. Car was being driven at normal speed by Meeran Malik who was holding a driving licence. Near village Takkarammalpuram, suddenly a small goat crossed the road and with a view to save the goat, Meeran Malik swerved the car to the extreme left of the road. Car collided against a way side tree and separated into two parts. Meeran Malik, Sabari Malik and Pathimuthu Zameela Beevi died in the accident, M.K.M. Buhari escaped with minor injuries. Complainant No. 3 was informed of the accident. FIR was lodged with P.S. Tirunelveli on 10.8.1997 at about 3.15 p.m. On 12.8.1997, P.N. Shanmughasundaram, Motor Vehicle Inspector from the District Transport Office, Tirunelveli inspected the site and prepared a report. Complainant No. 3 arranged for a photographer to take the photographs of the car as also the site of accident. It was further alleged that on being informed of the accident, opposite party No. 1 deputed a team of two experts who after visit of the site and inspection of the damaged car observed that the breaking up of car was due to manufacturing defect. Report was submitted by the experts to opposite party No.1. At the time of accident, Meeran Malik was earning over Rs. 10,000/- p.m. from agriculture and business. It was further stated that safety measures provided in the car were inadequate. Parents of complainant Nos.1 and 2 lost their lives on account of the car having manufacturing defects. Legal notice dated 12.9.1998 was got issued to opposite party No. 1. Direction was sought to be passed against both the opposite parties to jointly and severally pay a total sum of Rs. 73.74 lakhs alongwith interest. The Break up of that amount has been given in para No. 4 of the complaint as under:-
For the Education and Expenses of minor M.A. Gadaffi for a period of 10 years, upto the age of maturity @ Rs. 1500/- per month Rs. 1,80,000/-
For the Education and Expenses of minor M.A. Akram for a period of 13 years, upto the age of maturity @ Rs. 1,500/- per month Rs. 2,34,000/-
Loss of earning of deceased Meeran Malik:
This is estimated at Rs. 10,000/- per month for a period of 28 years give the life expectancy of 58 years. After counting for the fact that is earning would have increased further, this period and after subtracting 1/3rd of the income towards the expenditure on himself and his families the complainants are limiting the claim to Rs.
10,000/- per month. This works out to Rs. 33,60,000/-.
The loss of earnings of deceased Meeran Malik who was 30 years at the time of accident, for a period of 28 years upto the age of 58 years @ Rs. 10,000/- per month Rs. 33,60,000/-
Towards loss suffered by respondent No. 3 on account of loss of son on account of mental agony and injury Rs. 10,00,000/-
Towards loss suffered by complainant No.1 and 2 for the loss of their father and mother Rs. 20,00,000/-
Towards loss suffered on account of short fall in insurance coverage for the vehicle Rs. 6,00,000/-
Complaint was contested by filing written version by opposite party No. 1. It was alleged that opposite party No. 1 was set up in India by way of Joint Venture between Daimler-Benz AG, the world leader in automobiles and TELCO in India. The automobiles manufactured by opposite party No. 1 in India are world class and renowned for the quality, safety and comfort. Before starting the manufacturing of cars in India, approval/certification (as to its quality, standard or fitness) was obtained from ARAI, a Govt. approved agency and from appropriate laboratory specified under the Consumer Protection Act.
Purchase of the car in question by Ms. Sabri Malik was not denied. It was alleged that this Commission has no jurisdiction to adjudicate upon the claims for compensation arising out of motor vehicle accidents in view of the decision in Chairman, Thiruvalluvar Transport Corporation vs. Consumer Protection Council, (1995) 2 SCC 497. It was stated that it is purely a case of accidental death and cannot even remotely be attributed to manufacturing defect. It was denied that the accident occurred due to manufacturing defect or it is a case of res ipsa loquitur as alleged. It was not disputed that P.N. Shanmughasundaram inspected the site on 12.8.1997 and submitted an inspection report. It was stated that the matter was thoroughly discussed with the seniors and experts in Germany who concluded that it is not a case of manufacturing defect. Two German Experts came to India, visited the site and submitted a report. Findings as summarised in para No. 5 of the report being material, are reproduced below:-
The vehicle went out of control as a result of drivers action and collided with the tree at a very high speed calculated between 66.6 to 104.1 mph (107.2 to 167.5 km/h).
The vehicles tearing was the result of the high tensile forces due to slowing down respectively stopping at the rear end of the tree, while heavy front part of the vehicle continued to move forward.
The tearing process started at the side member in front of the side B-pillar. No faulty welding part was found in the area of initial tearing.
It was a continuing tearing process, not an immediate breaking of the vehicle. After the initial tearing the tensile forces acting were severe enough to get a complete separation into two pieces.
No faulty welding spots or other manufacturing defects in any of the torn area could be found.
The force component in the vehicles longitudinal direction was high enough to meet the airbag threshold. Consequently both front air bags were triggered.
The front passenger was protected by the passenger airbag despite the fact that he wasnt wearing a seat belt.
The driver as well as the rear passengers were seated in the area of direct intrusion of the tree. The fatalities were caused by contacts of these occupants against intruding vehicle parts or against the tree respectively.
The tragic consequence of this accident occurred as a result of the very high impact speed of the vehicle, the constellation of the accident and the impact angle against the tree. Based on the inspection and accident reconstruction the vehicle was not defective in manufacture or design.
Accident was not due to any defect in the car as also opined by P.N. Shanmughasundaram. It was denied that the life safety measures of the car failed to function as alleged. It was alleged that car was insured with United India Insurance Co. Ltd. Liability to pay the amount claimed was emphatically denied.
Opposite party No. 2 adopted the written version filed by opposite party No.1.
We have heard Shri G. Umapathy for the complainant, Shri M.S. Pandit for opposite party No. 1 and Shri Pravesh Thakur for opposite party No. 2 and have been taken through the records.
Points which arise for determination are (i) whether the accident dated 10.8.1997 is attributable to manufacturing defect in the car; (ii) whether this Commission has no jurisdiction to adjudicate upon the claims made in view of the decision in Chairman Thiruvalluvar Transport Corporation vs. Consumer Protection Council- 1995(2) SCC 479; (iii) if both these points are answered in favour of the complainants, what amount of compensation the complainants are entitled to recover and from which of the opposite parties?
Alongwith the affidavit of Raghunandan B. Pendse, General Manager Legal Affairs & Company Secretary the opposite party No. 1 has filed the letter dated 9.12.2002 addressed by PNA Shanmughasundaram to the Registrar of this Commission, report dated 23.8.1997 of S.K. Ponnusamy, surveyor, technical report dated 29.9.1999 of Andreas Kief and Marcus Behrendt together with sketch of deformation sequences of the car. In para No. 2.6 of the complaint there is reference to the report of said PNA Shanmughasundaram, Motor Vehicle Inspector.
Copy of this report in Form A.I.R. filed with the complaint is at pages 23 and 24 on the paper book.
Aforesaid letter of Sri Shanmughasundaram being material, omitting immaterial portions, runs as follows:-
Dear Sir, With reference to above, I was attached to Regional Transport Office, Tirunelveli during the year 1997. I was deputed for carrying out spot inspection upon receipt of information that a serious accident of Mercedes Benz car has taken place within the area/jurisdiction of our Regional Transport Office. I made spot inspection on 12.8.1997 at 11.45 a.m. and issued Inspection Report in Form AIR under Rule 37 B of the Tamil Nadu Vehicle (Motor) Rules 1989.
Thorough inspection of the accident vehicle was conducted and report was submitted accordingly. I came to the conclusion that accident took place as the vehicle went off the road and hit a roadside tree and was being driven in high speed. I have checked the brake and other mechanical parts to ascertain whether there was any mechanical failure. My inspection revealed that accident was not due to any mechanical failure in the vehicle.
In view of the above, I conclude that accident took place not due to any mechanical defect of the vehicle.
Conclusion reached in this letter reconciles with the opinion recorded against the entry at col. No. 11 in said Form AIR.
Indisputably, the car was insured with United India Insurance Co. Ltd. and the Insurance Co. is stated to have paid about Rs. 19 lakhs towards the cost of car to the complainants. Said S.K. Ponnusamy was appointed as surveyor by the Insurance Co. He visited the spot immediately after the accident twice. Discussion made under the heading- Surveyors comments in the survey report dated 23.8.1997 being material, are reproduced below:-
1. Damages are relevant to the cause of accident.
2.
R.C. : D.L. details taken from verification certificate.
3. Verified FIR and inspection report of MVI.
4. The car is driven at a very high speed at the time of accident which resulted in breakage of the car into two halves immediately on hitting the tree.
5. I am of opinion that the accident would not have happened due to any mechanical failure.
6. Mr. Bhide, Team Manager and Mr. P. Padgaonkar, Technical Assistant from M/s. Benz India Ltd. , Pune came and inspected the damaged car on 23.8.97. Myself was present along with Development Officer Mr. S.S. Rajan during their inspection.
As per the instructions received from the Branch Office of M/s. United India Insurance Co. Ltd. Tirunelveli on 11.8.1997, I went to the accident spot with Mr. Rajan, Development Officer, M/s. United India Insurance Co. Ltd. and conducted the spot survey for the Mercedez Benz Car TN 72J 8888 near Dakkarammalpuram in Naguneri-Tirunelveli road.
I went again with the Branch Manager, Mr. Thetharappan of M/s. United India Insurance Co. and Mr. Swamidoss, Surveyor to the accident spot on 12.8.97.
As the Bonnet of the engine was opened on 23.8.1997 I went again to note down the damages in engine compartment. At that time the car was kept at Arasan Farms at Sengulam in Naguneri road.
The right side portion of the car was hit with a tree and thereby split into two parts as:
1.
Rear seat to rear bumper with rear suspension, rear wheels, propeller shaft both right side doors with centre post etc. as one part near the tree and
2. Front bumper to front seat with front wheels, engine compartment, both left side doors etc. as second part lying approximately 20 feet ahead of the tree.
3. Front left head light assy., exhaust systems broken, door panels and plastic pieces were found scattered around the area for about 20 feet from the vehicle.
4. The entire body shell was crushed all over the vehicle, torn at many places and totally deshaped.
5. Both side safety balloons have ejected and found torn.
GLASSES:
1.
Front wind shield glass broken
2. Rear wind shield glass broken
3. Right side front and rear door glasses broken.
4. Left side front and rear door glasses broken
5. Except quarter glass in rear left door, all other quarter glasses were broken ELECTRICAL Front right head light broken, but lens not damaged Front left head light assy. broken and found in the floor lens not broken Front left indicator light top side broken Front right indicator light broken RPM speedometer, Temp; fuel, oil clock in Dash board metres lenses were broken in all Needle bent in speedometer and clock Fuse box on the right side of the vehicle under the bonnet broken at the rear side.
All door control switches broken Rear left and right combination lights broken Wiper unit not damaged Entire body shell was crushed and torn Bonnet was pressed inward and jammed.
Front right mudguard was bulged and torn out.
Front left mudguard crushed and bent Front wind shield frame bent and pushed backwards Rear wind shield frame totally cut off and no shape found Roof top cut at the 2 places joining area Spot welded portions are open Top panel was crushed, torn and bent Both right side doors were sheared off Both left side doors were bent badly Right side centre post was cut and separated All door frames were bent and deshaped Dash board was bent and lifted upward at the centre and looks zig-zag right side corner was broken Air ducts were crushed and broken Instrument fixing panel was bent Accessories mounting panel crushed Front seats were bent and crushed Rear seats were bent and folded inward and torn Dicky door was bent and twisted Flooring cut into two part and bent and buckled Front bumper (P.V.C.)- minor crack in the right side below the RH headlight portion.
Rear bumper broken at the bottom side Bottom cover shield came off its position Upholstry fully torn out Front right suspension system was damaged Front right anti roll bar came out of its bushings Rear right suspension coil spring came out and found in the floor Exhaust system was bent and dented and metals were torn in silencer All brake line tubings cut off Propeller shaft heavily bent and twisted Rear left shock absorber was bent and stem was cut Front right wheel disc.
was cracked Rear right wheel disc. broken Stephney, wheel cover plastic was broken Diesel tank cap missing.
Radiator shround plastic was broken Radiator core was damaged by the hitting of A.C. compressor on the left side of radiator Engine mounting brackets R.H. and LH. Broken Engine rear cross member was bent Brake tubings and electrical connection to ABS Brake Unit was cut and ABS unit got dislocated but no apparent damage to ABS unit.
In support of aforesaid report dated 29.9.1999, opposite party No. 1 filed the affidavit of Andreas Kief, one of the authors of the report. In para No. 3 of the affidavit, it was averred that he had worked in the Accident Analysis Department of Daimler for approx. 17 years as a Senior Engineer and Manager for accident and product analysis and was responsible for investigation and reconstruction of the subject accident. In para no. 4, it was averred that he was asked by O.P. No. 1 to fly to India to inspect the car in question and based on the inspection of the car wreckages and the accident site, photos of the vehicle taken shortly after the accident and photos taken by him during the inspection in September 1999, he prepared and submitted this technical report dated 29th September, 1999. Para Nos. 6, 7 and 11 of this affidavit which have considerable bearing in the case, are reproduced as under:-
6.
I state that based on the accident sequence as described in the complaint, the Information collated during the inspection of the vehicle and accident site and the Technical report, I have calculated the vehicles speed before leaving the road by analysing the vehicles trajectory upon leaving the road and the calculation reveals that:
a) The velocity of the vehicle when leaving the road would have been between 112 to 169 km/h and
b) The impact speed of the vehicle against the tree would be between 107.2 to 167.5 km/h.
This range of impact velocities corroborate with the speed at which the odometer of the vehicle got stuck during the impact (i.e. at 140 km/h). For the reasons mentioned above and the reasons mentioned in the Technical Report, I verily believe that the vehicle collided with the tree at a very high speed at an angle.
7. I state that the Technical Report concludes as follows:
a) the initial contact at the tree started at the right front door just in front of the B-pillar.
After the initial contact with the tree, the right front door including the side member and the side roof frame in that area were deformed;
b) after the initial impact the vehicles B-pillar came into contact with the tree and was abruptly stopped. Due to the kinetic energy the vehicle continued to move forward. The rear of the vehicle was slowed down by the energy absorbing deformation of this part of the vehicle caused by the tree impact.
At the same time the front of the vehicle including the heavy engine and gearbox was still moving forward. Due to its weight and velocity the front part was heavily pulling while the rear part was held back by the tree. This resulted in heavy tensile forces putting an extreme load onto the right side structure;
c) this is also shown by the condition of the right A-pillar, in particular it was completely bent down and disjointed from the wheelhouse, and the former edge between the A-pillar and roof rail was completely straightened due to the tensile force;
d) for the reasons mentioned above and the reasons stated in the Technical Report, I verily believe that the vehicles tearing was a result of the high tensile forces due to the slowing down respectively stopping of the rear end at the tree, while the heavy front part of the vehicle continued to move forward. The tearing process only started after the side structure had absorbed a very high amount of energy;
e) Further, the forward movement of the vehicles front had not stopped at the starting of the tearing process and hence heavy tensile forces were acting resulting in a continuing tearing process until the vehicle was completely torn into two pieces.
This is also proved by the fact that the front part of the vehicle was bent around the tree before the separation and was found in straight direction to Tirunelveli 45 ft. away from the tree facing to the street. Otherwise the front would have travelled in straight direction of the initial impact movement at impact.
10. In respect of the complainants allegation that the life safety measures failed to function, I respectfully state that based on the findings and reasons mentioned in the Technical Report,
a) the force component in the vehicles longitudinal direction was high enough to meet the airbag threshold and both front airbags were correctly triggered. In other words, all airbags in this vehicle deployed in this accident;
b) the front passenger received some benefits of the passenger airbag despite the fact that he was not wearing his seatbelt; and
c) the driver and the rear passengers were seated in the area of direct intrusion of the tree.
Their tragic deaths were caused by contacts with the intruding parts of the side structure respectively direct contacts with the tree.
Alongwith the complaint filed on 13th May, 1999, the affidavits of complainant No. 3 who has since died and S. Zakir Hussain as also the report dated 11th Feb., 1999 of R. Bakthavatchalam, surveyor were filed. Order dated 2nd Feb., 2005 would show that after allowing application for bringing on record the legal representative of deceased complainant No. 3, both the complainants and opposite parties were given six weeks time to file affidavits of evidence. Complainants did not file any affidavit of evidence pursuant to this order. Three affidavits filed by way of evidence by opposite party No. 1 have been filed after 2nd Feb., 2005. Another order dated 27th Feb., 2009 would show that after noticing the statement made by the complainants counsel for serving interrogatories for the purpose of cross-examination of the witnesses of opposite parties, liberty was given to the complainants to file application for serving interrogatories by the next date of hearing and case was postponed to 15.5.2009. Orders passed thereafter do not indicate that any such application was filed by the complainants and allowed by the Commission. Short affidavit of complainant no. 3 who was admittedly not present at the time of accident, affirms the averments made in the complaint. In his affidavit said S. Zakir Hussain stated that on 10.8.1997 he was returning after attending betrothal function. Meeran Malik was also returning by his car. He was at a distance of about 150 mtrs. ahead when the accident of the car took place.
Meeran Malik was driving the car at a normal speed carefully. In his said survey report dated 11th Feb., 1999, R. Bakthavatchalam, Surveyor stated that at the time of accident the car may be running at a speed of 75 to 80 kms/h and the front wheels lost touch with the ground for a few seconds. Car travelled in the left side open ground and when the front wheels contacted the ground, it took a right turn and the right side mid section of the car collided with a country tree. Vehicle got sheared into two pieces and crumbled. During the time rear door opened and S.M. Buhari was thrown out. Other occupants of the car had multiple injuries and lost their precious lives. The car could not take the side impact as happened during the accident and broke into two pieces and crumbled. Such a shearing had happened due to the weakness of the mid-section of the car.
Before touching the issue of alleged manufacturing defect in the car, it needs to be examined if the car at the time of accident was being driven at a normal or very high speed. As noticed above, PNA Shanmughasundaram, Motor Vehicle Inspector had opined that the accident had not taken due to any mechanical defect and the car was being driven in high speed. S.K. Ponnusamy, Surveyor too opined that the accident did not happen due to any mechanical failure and the car was driven at a very high speed at the time of accident. In the report dated 23.8.1997 this surveyor had noticed the extent of damage referred to above to the glasses, electrical and roof top of the car which supports the conclusion reached by him regarding the speed of the car. Joint technical report dated 29.9.1999 and the affidavit of Andreas Kief would show that the odometer of the car was got stuck during the impact at 140 km/h, velocities of the car when leaving the road would have been between 112 to 169 km/h and the impact speed of the car against the tree would be between 107.2 to 167.5 km/h. In view of this overwhelming reliable evidence of the car being driven at a very high speed the affidavit of said S. Zakir Hussain about the speed of car being normal and opinion given in the report dated 11th Feb., 1999 by R. Bakthavatchalam, Surveyor that the speed was 75 to 80 km/h are disbelieved being totally unreliable. It is established beyond any shadow of doubt that the car at the time of accident was being driven at a very high speed by Meeran Malik who lose control over it.
Turning to the afore-mentioned point/plea of the car having manufacturing defect, the complainants relies on the report dated 11th Feb., 1999 of said R. Bakthavatchalam, Surveyor. Needless to repeat that this surveyor has stated that the car broke into two pieces due to weakness of the mid-section thereof. In the joint technical report dated 29.9.1999 and the unrebutted affidavit dated 2nd December, 2008 said Andreas Kief has given cogent reasons why the car had broken into two pieces. No fault can be found with the conclusion reached in the report regarding cause of breakage of the car. Alleged weakness of the mid-section of the car could not have been the cause for breaking of the car as stated by R. Bakthavatchalam, Surveyor. Further, merely on the ground of car having broken into two pieces, it cannot be presumed that there was any manufacturing defect in the car. Car did not have any manufacturing defect as alleged.
As regards point at (ii) above regarding maintainability of complaint, in the complaint a total amount of Rs. 73.74 lakhs has been claimed as compensation primarily based on the deaths of Meeran Malik and Sabri Malik. Since the fatal injuries to three deceased persons was the direct result of the accident on account of hitting of the car which was being driven at a very high speed with a tree, the complaint would be maintainable only before the Claims Tribunal constituted under the Motor Vehicle Act, 1988 in view of the decision in Chairman Thiruvalluvar Transport Corporations case (supra), which applies on all fours to this case.
Having reached the said conclusions on points (i) & (ii) above, the complainants must have held to be not entitled to the compensation prayed for and the complaint deserves to be dismissed.
Resultantly, the complaint is dismissed leaving the parties to bear their own costs.
J. (K.S.GUPTA) PRESIDING MEMBER .J. (R.K. BATTA) MEMBER vs