State Consumer Disputes Redressal Commission
Anant Tools Unit No. Ii Pvt. Ltd. vs M/S Toyota on 1 November, 2022
Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.703 of 2019
Date of institution : 24.09.2019
Reserved on : 07.10.2022
Date of decision : 01.11.2022
M/s Anant Tools Unit No. II Pvt. Ltd., B-5, Focal Point, Jalandhar,
Punjab, through its Director Sh.Aasheesh Chopra Director.
....Complainant
Versus
1. M/s Toyota, 3-60, Nishimachi, Toyota City Aichi-ken, 4718501,
Region:Chubu (Tokai), Japan, through its Managing Director.
2. Toyota Automobile Company Ltd., Sana Plaza, 21/14A, MG
Road, Bangalore 560 001, through its General Manager/
Authorized Representative.
3. M/s ANR Motors Pvt. Ltd., G.T. Road Pragpur, Jalandhar,
through General Manager/ Authorized Representative.
4. M/s Castle Toyota, Near Jalandhar Kunj, Kapurthala Road,
Jalandhar, 144002, through its Branch Manager/ Authorized
Representative.
....Opposite Parties
Consumer Complaint under Section 17
of the Consumer Protection Act, 1986.
Quorum:-
Mr. Harinderpal Singh Mahal, Presiding Judicial Member
Argued By:-
For the complainant : Sh.Gaurav Kant Goel, proxy counsel for Sh.Zoheb Sidhu, Advocate.
For opposite party No.1 : Ex-parte For opposite parties No.2to4 : Sh.Sethi Kumar, proxy counsel for Sh.K.P.Singh, Advocate.Consumer Complaint No.703 of 2019 2
HARINDERPAL SINGH MAHAL, PRESIDING JUDICIAL MEMBER The present complainant-M/s Anant Tools Unit No.II Pvt. Ltd.
has filed this complaint under Section 17 of the Consumer Protection Act, 1986, (in short "C.P. Act") seeking following directions to the opposite parties:-
(i) to refund Rs.23,61,394/- as price of the Top Model Innova Crysta Car along with interest @18% per annum from the date of payment till the actual realization;
(ii) to pay Rs.70,00,000/- as damages on account of negligence and deficiency in service, causing trauma, mental agony, tension and undue harassment;
(iii) to pay Rs.1,10,000/- as litigation expenses.
2. Brief facts culminating to the institution of the present complaint are that the complainant-company proposed to purchase Toyota Innova Crysta Car for their Directors, vide resolution dated 16.06.2016 and for that purpose they approached opposite parties No.3 & 4 who were the Authorized Dealer of the vehicle in Jalandhar and opposite party No.1 is the manufacturing company of Toyota in Japan, whereas opposite party No.2 is the Head Office dealing with all the matters of the vehicle, in India. The complainant visited the showroom of opposite party No.3 and he was assured that the vehicle has 7 SRS (Supplemental Restraint System) and in case any mishap occurs, the airbags would open automatically as the same has been installed in the vehicle for life and safety of the user. On this assurance of opposite party No.3, the complainant purchased the Innova Crysta 2.8Z, Model, vide retail Invoice No. INVI 600004388 dated 28.06.2016, Consumer Complaint No.703 of 2019 3 Ex.C-1. It is a higher model and having 7 SRS airbags. The Innova car was registered as vehicle No.PB-08-DK-0118 and the Registration Certificate is Ex.C-2, copy of Insurance Policy is Ex.C-3 and Board Resolution is Ex.C-4. On 12.06.2019, when the car was driven by driver Tejinder Singh, who was going with two children of the owner of the vehicle towards Ludhiana had met with an accident with Xcent car bearing No.PB-10-FC-5257 in head collision, as a result of which the Toyota car turtled (rolled) and landed on its tyres. The driver of the vehicle and children were wearing seat belts and sustained multiple injuries as not a single airbag opened. Had the airbags opened, the children and driver would not have suffered serious injury as car was purchased with the assurance of 7 SRS system and was assured as one of the safest car in the world. The non-opening of the airbags was a manufacturing defect and the assurances, as given by opposite party No.3, was fake and false and it put the children's life in danger. The photographs of the damaged vehicle are Ex.C-5 (colly). Opposite party No.4 was approached by the complainant but instead of listening the grievances of the complainant they misbehaved with the complainant. The matter was taken up by the complainant with the social media as well as newspaper also and highlighted the same. The photocopy of the newspaper is Ex.C-6 (colly). The vehicle of the complainant also suffered serious damage in the accident. The vehicle was purchased by the complainant as it was assured by opposite parties No.3 & 4 that the car is safest one and the complainant was getting regular services from authorized dealer of Toyota at Jalandhar. The bills are Ex.C-7 (colly). The opposite party also sent an email to the complainant for Consumer Complaint No.703 of 2019 4 seeking permission of the complainant to give the permission to technical team for checking as to why the airbags did not deploy. The email is Ex.C-8 and reply is Ex.C-9. This act and conduct of the opposite parties clearly indicates the deficiency and negligence in service and has failed to meet the parameters of the safety. Legal notice was also given to the opposite parties, vide Ex.C-10(colly). At the end, the complainant was forced to file the present complaint for the reliefs as mentioned above.
3. Notice was issued to the opposite parties. Opposite party No.1 did not appear despite service and was proceeded against ex-parte, vide order dated 01.01.2021, whereas opposite parties No.2 to 4 appeared and filed their written statement separately.
4. Written statement has been filed by the opposite party No.2, who is represented by Mr.Vinay Bhagawan, Deputy Manager, Legal & Secretarial Division submitted that opposite parties No.3 & 4 are the Authorized Dealers of opposite party No.1 on principal to principal basis. Opposite party No.2 taking the preliminary objections that this Commission has no territorial jurisdiction to try the present case. The SRS bags are provided for protection of driver and the front passenger in addition to the primary safety provided by the seat belt. It is further submitted that SRS air bags will 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. In the Safety Booklet, it is specifically mentioned "Air bags are not deployed in all types of accidents." The frontal airbags do not offer protection in rollovers, side impact, rear end Consumer Complaint No.703 of 2019 5 or underride crashes. The airbags, generally, do not deploy in collision with relatively movable object, particulary where most of the frontal impact is absorbed by the Radiator support, apron and bumper and bumper reinforcement. The complainant has no cause of action and has no locus standi to file the complaint. The complainant is estopped by his own acts and conducts from filing the present complaint. The complainant being a company does not fall within the ambit of definition of consumer. The complaint is bad for want of expert evidence as envisaged under Section 13(1)(c) of the Act. The complainant has wrongly made opposite party No.1, which is a Japan based Car Manufacturing Company and sell the Cars in Japan, as party to the complaint. On merits, it is denied that the airbags were not deployed by any manufacturing defect. It is also denied that the impact of accident was major and that driver and children sustained multiple injuries. They also alleged that it has to be proved that they were wearing seat belts.
5. Opposite party No.3 in its written statement has admitted that they are Authorized Dealer and has taken the same stand on SRS airbags as taken by opposite party No.2. It is further submitted by them that after detailed investigation by technical team it was clearly observed that the complainant's vehicle has hit a car from left hand side and the major impact was basically on the left side of the vehicle and the collision was also on left hand side and no frontal collision and the front SRS bags may not deploy, if the collision is from the side of the car. The complaint is not maintainable as there was no deficiency in service and unfair trade practice on the part of the opposite parties. Consumer Complaint No.703 of 2019 6 No cause of action has ever accrued to the complainant to file the present complaint and he has no locus standi to file the same. The complainant has suppressed the material facts and has not approached this Commission with clean hands and he does not fall within the ambit of definition of consumer. On merits, they denied all the pleas taken by the complainant and denied that there is any deficiency in service on their part.
6. Opposite party No.4 filed the written statement almost on the similar lines as taken by opposite parties No.2 & 3. They only alleged that the vehicle was not purchased from them. They also denied that the SRS airbags does not deploy due to any manufacturing defect.
7. The complainant filed rejoinder to the written statement of opposite parties No.2 & 4 denying the contentions of the opposite parties No.2 & 4 and reiterated all the averments as averred by the complainant in his complaint. Further prayed for acceptance of the complaint.
8. The complainant in support his averments has filed the affidavit of Aasheesh Chopra, Director, Anant Tools (UnitNo.II) Pvt. Ltd. along with copies of documents as Board Resolution (in original) dated 16.06.2016 as Ex.CA, Retail Invoice dated 28.06.2016 as Ex.C-1, RC of Car dated 29.06.2016 as Ex.C-2, Insurance dated 27.06.2018 as Ex.C-3, Board Resolution dated 27.06.2019 as Ex.C-4, Photographs as Ex.C-5(colly), Newspaper cuttings dated 14.06.2019 & 18.06.2019 as Ex.C-6(colly), Service Records/Invoices as Ex.C-7(colly), Emails dated 22.07.2019 as Ex.C-8, Reply of e-mail dated 31.07.2019 as Consumer Complaint No.703 of 2019 7 Ex.C-9 and Legal Notice with postal receipts and tracking report dated 02.07.2019 as Ex.C-10.
9. On the other hand, opposite party No.2 in support of their contentions filed the affidavit of Sh.Vinay Bhagawan, Deputy Manager, Legal & Secretarial Division dated 06.07.2020 along with photo copy of documents as general power of attorney as Ex.OP-2/1, relevant extracts of the Owner's Manual & Safety Booklet as Ex.OP-2/2, Owner's manual as Ex.OP-2/3, Detailed Investigation Report as Ex.OP-2/4, Letter dated 18.10.2019 as Ex.OP-2/5.
10. Whereas Opposite party No.3 filed the affidavit of Sh.Sachin Sharma, Vice President, dated 02.12.2019 along with photocopy of documents as Authority Letter dated 21.11.2019 as Ex.OP-3/1, Safety Booklet as Ex.OP-3/2, Warranty terms and conditions as Ex.OP-3/3 and Expert Report as Ex.OP-3/4.
11. Opposite party No.4 filed the written statement by way of affidavit of Sh.Jatinder Kumar Gupta, Chairman, ANR Motors Pvt. Ltd.
12. The complainant filed the written arguments on the averments as taken in the complaint. At the very outset, learned counsel for the complainant orally contended that the opposite parties failed to pay any heed to the complaint of the complainant regarding the non- deployment of the SRS airbags at the time of impact during the accident. The complainant was forced to file the present complaint seeking the relief and compensation for mental agony suffered by him. He further contended that when there was not any manufacturing defect in the vehicle then what was the need of the opposite parties to get the vehicle inspected from their technical team and procuring of Consumer Complaint No.703 of 2019 8 false report. The complainant had never joined in the said investigation while visiting the inspection team and it was merely a paper work. The plea of the opposite parties is that since the accident took place from the front side collision and roll over so the SRS system did not deploy and do not satisfy the condition for deployment of the air bags. He further pleaded that a safety system can never be conditional, it has to be fully proved as assured by the opposite parties while selling the vehicle.
13. Per contra, written argument is filed by the opposite parties No.2 to 4 on the similar lines as detailed in the defence taken by them. Learned counsel for the opposite parties No.2 to 4 referred to the literature as they have reproduced in their written statement. He further stressed upon the issue that the complainant-company does not fall within definition of consumer and no specific averment has been mentioned by the complainant which makes the complainant a consumer. He also referred to the clause 2(i)(d) of the Act and pointed out that this clause does not cover the vehicle which is being used by the Director of the Company for commercial purpose.
14. Learned counsel for opposite parties No.2 to 4 has also stressed upon the fact that the complainant being a company is not a consumer because the car was purchased by the Director of the company and the same was being used for their official purpose which is commercial in nature. He further submitted that the vehicle was out of warranty on the date of accident i.e. 12.06.2019 and the vehicle crossed 1 lac kms. on 19.03.2019. He denied that there was any manufacturing defect in the vehicle and he referred to the report of the Consumer Complaint No.703 of 2019 9 Inspecting team. Learned counsel for opposite parties No.2 to 4 alleged that the accident took place from the left side of the vehicle , which is not a condition for the deployment of the airbags. He referred to the terms and conditions for the deployment of the airbags Ex.OP- 2/2 mentioning that this also shows that the airbags of the vehicle may not deploy when the vehicle rolls or overturns and this is very much mentioned in the said literature. He also referred to the following authorities and judgments:
i) Classic Automobiles Vs. Lila Nand Mishra as reported in I [2010] CPJ 235 (NC)
ii) Ankur Jain Versus Skoda Delhi State Commission CC/377 of 2011 dt. 24.05.2019 (enclosed)
iii) EID Parry Vs. Baby Benjamin-I(1992) CPJ 279
iv) Tata Motors Vs. Sunil Bhasin-III (2008) CPJ III
v) Chandreshwar Vs. Telco-I (2007) CPJ 2.
vi) Diamond Cement Vs. Rai Prexim India Pvt. Ltd. I (2003) CPJ 1.
vii) Lovely Vs. Harmesh Lal-I (2007) CPJ 312
viii) Tata Motors Ltd. Vs. Ms.Meenakshi Talan and another FA-92/2009 decided on 12.02.2019.
ix) Maruti Udyog Ltd. Vs. Hashmukh Laxmi Chand (2009) 3 CPJ 229.
x) R.Bhaskar Vs. D.N.Udani IV (2006) CPJ 257.
xi) Sukhvinder Singh Vs. Classic Automobile I(2013) CPJ 47
NC.
xii) Ajita Chit Fund Pvt. Ltd. Vs. Teleco I(2007) CPJ 204
xiii) Swaraj Mazade Vs. P.K.Chak Kapoor II (2005) CPJ 72
15. The first issue which requires the consideration of this Commission is whether this Commission is entitled to entertain and decide the complaint or not. The territorial jurisdiction of this Consumer Complaint No.703 of 2019 10 Commission has been defined under Section 17 of the Consumer Protection Act. The relevant portion of the Act is reproduced as under:
[(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.]
16. As per the above said Section, a consumer complaint can be filed by the complainant before the State Commission within the territorial jurisdiction where the part of cause of action arose or where the parties reside. It is an admitted fact that the complainant company is situated at Focal Point, Jalandhar and the delivery of the vehicle was also taken from opposite party No.3, who are also located in Jalandhar. The complainant has filed an affidavit qua the same and there is no denial of the same from the opposite parties confirming the fact that both the parties are located in Jalandhar and delivery of the vehicle was also taken from Jalandhar. Therefore this Commission dealing with the present complaint has got the territorial jurisdiction to decide the present complaint.
Consumer Complaint No.703 of 2019 11
17. The second issue which was hotly contested by both the parties on the status that whether the complainant is the consumer or not?
18. In this regard, it is necessary to go through Section 2(i)(d) of the Consumer Protection Act, which is reproduced as under :
"(d) "consumer" means any person who,--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];
[Explanation -For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment.]"
19. From the bare perusal of the wording of the Section 2(1)(d) of the Consumer Protection Act, it can be seen that the emphasis is laid Consumer Complaint No.703 of 2019 12 on the purpose for which the goods were purchased though the use to which the goods are actually put would be helpful in deciding the purpose for which they were purchased.
20. Admittedly, in the present complaint, the vehicle, in question, was purchased in the name of the company for the use of its Directors as per Ex.C-A. Although learned counsel for the complainant urged that the Director was using this car for his personal use but this plea taken by the learned counsel for the complainant does not find any consonance with the pleadings of the complainant whereas on the one side as per board resolution, Ex.CA, it has been mentioned that 'the car is being purchased for the personal use of the Directors as a perk for the numerous contributions given to the company'. However, the name of the Director has not been mentioned to whom the perks were offered by giving the facility of vehicle, in question. Moreover, in the resolution the word has been mentioned as 'Directors'. Meaning thereby that the car was being used by other Directors also. It is a matter of discussion that how one vehicle can be distributed to other Directors of the company only for the purpose of personal use. It is not disputed that the driver Tejinder Singh was going with two children of the owners of the vehicle namely Arnav Vig aged about 12 years and Shaurya Khosla aged about 14 years. It is also an admitted fact that the accident was took place on 12.06.2019 while driver Tejinder Singh, driver along with two children were going towards Ludhiana. It is alleged by the counsel for the complainant that at the time of accident, the airbags of the vehicle were not deployed due to which the driver and children sustained injuries, which is a manufacturing Consumer Complaint No.703 of 2019 13 defect. On the other side, the opposite parties are not denying this fact on the basis of the Inspection Report that the impact of the accident was less, therefore, the airbags were not deployed. Moreover, it has been strongly contended by the learned counsel for the opposite parties that the vehicle was being used for commercial purpose and not for personal use.
21. A careful perusal of the complaint as well as record clearly shows that the complainant was using the car mainly for his business activity. The complainant has also not disclosed about the details of other vehicles owned by the company, which they are using for the commercial purpose and for their other Directors. This clearly shows that the vehicle, in question, was also being used for commercial purpose for other Directors also and not for any specific Director's personal use as it also proves in the Board Resolution, Ex.C-A. It is also observed by Hon'ble Supreme Court in "Laxmi Engineering Works vs. P.S.G. Industrial Institute", II(1995) CPJ 1, "it is not the value of the goods but the purpose for which the goods are brought or put to use, which is relevant to decide whether the goods were obtained for a commercial purpose or not. The same would be the position, where services are hired or availed by a company. If the business activities of a company cannot be conveniently undertaken without the goods purchased or the services hired or availed by a company, such purchase or hiring/availing as the case may be, would be for a commercial purpose, because the objective behind such purchase of goods or hiring or availing of the services would be to Consumer Complaint No.703 of 2019 14 enable the company to earn profits by undertaking and advancing its business activities".
22. From the facts of the complaint mentioned above as well as the law laid down by the Hon'ble Supreme Court it can only safely be construed that the vehicle, in question, and other services made available by the company to its Directors is primarily for the purpose of the business and used by him mainly for the purpose of the company but incidentally also for their personal purpose. The dominant purpose behind the purchase of the vehicle is to propagate the business of the company and other business activities by the Directors and being incidentally using the same for his personal use then it can be safely said that such acquisitions was for the commercial purpose.
23. Although term 'commercial purpose' has not been defined in the Consumer Protection Act but it held by Hon'ble Supreme Court in case titled "Laxmi Engineering Works vs. P.S.G. Industrial Institute", II (1995) CPJ 1 (SC). In the absence of a statutory definition, we have to go by its ordinary meaning. 'Commercial' denotes 'pertaining to commerce it means "connected with, or engaged in commerce; mercantile, having profit as the main aim" and the word 'commerce' means "financial transactions, especially buying and selling of merchandise on a large scale".
24. Going by the dictionary meaning, of the expression commercial the vehicle, in question, obtained and the services hired or availed by a company can be said to have been obtained or hired or availed for commercial purpose only. If the vehicle, in question, is connected with, Consumer Complaint No.703 of 2019 15 or related to the business or commerce in which the company is engaged.
25. In view of the above discussions, we hold that the complainant company does not fall under the definition of 'consumer' as defined under Section 2(1)(d) of the Consumer Protection Act as purchased the said vehicle, in question, from OPs for commercial purpose.
26. Although learned counsel for the complainant relied upon the various judgments, which is referred as under:
i) Hyundai Motor India Limited Vs. Shailendra Bhatnagar, Civil Appeal No.3001 of 2022, decided on 20.04.2022 (SC).
ii) Sukhdeep Singh Bhinder Vs. EM PEE Motors Ltd.
Complaint Case No.795 of 2017, decided on 20.12.2018 (Chandigarh Consumer Commission).
27. No doubt, that the above said authorities are dealt with the airbag system, however, the main point before discussing the case on merits was to be considered in the present case whether the complainant falls under the definition of consumer or not? Moreover, the warranty period of the vehicle, in question, has already expired.
28. Without going through the further details on the issues as discussed above, the complainant does not fall within the ambit of the consumer as defined under Section 2(i)(d) of the Consumer Protection Act, 1986 and no further discussions are required on the other issues.
29. Since as per preliminary issue decided by this Commission, the complainant does not fit within the parameters of the Consumer as per Section 2(i)(d) of the Act accordingly, this complaint is dismissed being not maintainable under the Consumer Protection Act. Consumer Complaint No.703 of 2019 16
30. The complaint could not be decided within the statutory period due to heavy pendency of work.
(HARINDERPAL SINGH MAHAL) PRESIDING JUDICIAL MEMBER November 01,2022 parmod