National Consumer Disputes Redressal
Em Pee Motors Ltd. vs Ramesh Kumar Bamal & Anr. on 16 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.3666-3667 OF 2014 (From the order dated 19-08-2014 in First Appeal No.247 of 2014 of the Chandigarh State Consumer Disputes Redressal Commission at UT Chandigarh) Em Pee Motors Ltd. Authorized dealer of M/s. Pioneer Toyota Plot No.177-H, Phase I Industrial Area, Chandigarh Through its Authorised Signatory-cum-Sales Manager Mr. Sukhwinder Parmar ..Petitioner Versus 1. Ramesh Kumar Bamal R/o H.No.1047 Sector 17 Panchkula 2. M/s. Toyota Kirloskar Motors Plot No.1, Bedadi Industrial District Rama Nagar Bangalore ..Respondents REVISION PETITION NO.3925 OF 2014 (From the order dated 19-08-2014 in First Appeal No.253 of 2014 of the Chandigarh State Consumer Disputes Redressal Commission at UT Chandigarh) M/s. Toyota Kirloskar Motors Pvt. Ltd. Plot No.1, Bidadi Industrial Area Ramanagara District Karnataka 562109 (Through Mr. Srinivas P. Gotur, DGM-Legal & CS) ..Petitioner Versus 1. Ramesh Kumar Bamal R/o H.No.1047 Sector 17 Panchkula 2. M/s. Em Pee Motors Ltd. working as M/s. Pioneer Toyota 177 H, Industrial Area, Phase I Chandigarh ..Respondents REVISION PETITION NO.3980-3981 OF 2014 (From the order dated 19-08-2014 in First Appeal No.247 & 253 of 2014 of the Chandigarh State Consumer Disputes Redressal Commission at UT Chandigarh) Ramesh Kumar Bamal Advocate, Resident of House No.1047 Sector 17, Panchkula ..Petitioner Versus 1. M/s. Toyota Kirloskar Motors Pvt. Ltd. Plot No.1, Badadi Industrial Area District Ramanagar Karnataka 2nd Address: 10th Floor, Canberra Block No.24 Mittal Mallaya Road Bangalore 2. The Emm Pee Motors Ltd. Authorised dealer of M/s. Pioneer Toyota Plot No.177-H Phase-1, Industrial Area Chandigarh ..Respondents BEFORE: HONBLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER In RP 3666-3667/2014 For the petitioner : Mr. S.R. Bansal, Advocate (also for respondent No.2 in R.P. No.3925/2014 & RP No.3980-3981/2014) For the respondent No.1: Mr. Ramesh Kumar Bansal, in person (also for respondent No.1 with Mr. Alok Bachawat, Advocate in R.P. No.3980-3981/2014) For the respondent No.2: Mr.M.N. Krishnamani, Sr. Adv. with (also for Mr. Vipin Singhania, Advocate and the appellant in Mr. Ram Anugrah Singh, Advocate R.P. No.3925/2014 & For the respondent No.1 in RP No.3980-3981/2014) 16-01-2015 ORDER
JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)
1. The complainant who is also the petitioner in Revision Petitions Nos.3980-3981 of 201 purchased a Toyota Itios car on 10-03-2011, for a total consideration of Rs.5,48,485/-. According to the complainant, since very beginning the vehicle was giving mileage of 13 kms per litre without air conditioner and 11 kms per litre with air conditioner as against the assurance/claim of 17.57 kms per litre given by the opposite parties i.e. the manufacturer of the vehicle Toyota Motors and the seller Em Pee Motors Ltd.. According to the complainant he had also brought it to the notice of the workshop of Em Pee Motors Ltd. that the vehicle was giving mileage of 13 kms per litre and was assured that the fuel consumption would improve but later on there was no improvement in the mileage. Being aggrieved the complainant approached the concerned District Forum seeking the following reliefs:
(i) to refund the amount of Rs.5,48,485/- from the date of its respective deposits along with interest @12% per annum or in the alternative to replace the vehicle,
(ii) to pay Rs.13,858/- as insurance charges + Rs.2,500/- as L.C. charges,
(iii) to pay Rs.10,970/-
as registration charges,
(iv) to pay Rs.28,573/- as on 13-08-2012 as extra fuel consumption charges and future fuel consumption charges at the rate of Rs.1,920/- per month till the replacement of the vehicle or refund the cost of the vehicle, which ever this Honble Forum may pass the order,
(v) to pay the compensation amounting to Rs.1,00,000/- on account of mental agony and harassment in view of the reasons mentioned above both are guilty of deficiency in service and unfair trade practice,
(vi) to pay the litigation charges amounting to Rs.22,000/-.
2. The complaint was resisted by the manufacturer of the vehicle Toyota Motors, alleging therein that the fuel economy as indicated in the brochure, was average of mileage obtained under ideal test conditions and depended upon several factors such as roads, aggressive driving habits, speeding or rapid acceleration and braking, over speeding, excessive idling, not keeping the tyres at recommended pressure or not using the recommended grade of motor oil, running improperly maintained vehicle, cold weather conditions, driving with heavy loads, etc.. It was also stated in the reply that the information as regards mileage was based upon the results of the test carried out under Rule 115 of the Central Motor Vehicle Rules.
3. During the pendency of the complaint the vehicle purchased by the complainant was tested by Punjab Engineering College, Chandigarh on the direction of the District Forum and vide its report dated 02-08-2013 the aforesaid institute reported that the vehicle was giving average of 10.69 kms with air conditioner and 12.13 kms without air conditioner in 1 litre of petrol. The committee which gave the said report did not find any manufacturing defect in the vehicle.
4. The District Forum, vide its order dated 20-05-2014, directed the opposite parties to refund the amount of Rs.5,48,485/- to the complainant and also pay to him compensation amounting to Rs.1,00,000/-, cost of litigation amounting to Rs.10,000/- and cost of taking expert opinion amounting to Rs.2,247/-. Being aggrieved from the order of the District Forum, an appeal was filed by the opposite parties before the concerned State Commission challenging the order passed by the District Forum. Since the complainant was not satisfied with the quantum of the compensation awarded to him he also filed a separate appeal challenging the order of the District Forum to the aforesaid extent. Vide impugned order dated 19-08-2014 the State Commission partly accepted the appeal filed by the opposite parties, and reduced the quantum of compensation from Rs.1,00,000/- to Rs.50,000/-. The rate at which interest was awarded by the District Forum was also reduced to 12% per annum. The rest of the order passed by the District Forum was, however, maintained. The appeal filed by the complainant was dismissed. Being aggrieved from the orders passed by the State Commission, the complainant, the manufacturer and the dealer, all have filed separate revision petitions challenging the said order.
5. The learned senior counsel appearing for the manufacturer of the vehicle has drawn our attention to the emission certificate issued by the Automotive Research Association of India which is a research institution of automotive industry with the Ministry of Heavy Industry and Public Enterprises, Govt. of India. A perusal of the said certificate would show that during the test on 29-09-2010, the vehicle was driven for a distance of 4.057 kms in phase I and 6.619 kms in phase II. The volume in phase I was 77.66 cubic metre and 39.8347009 cubic metre in phase II. Based upon the result of the aforesaid test, ARAI certified the mileage to be 17.57 kms per litre.
6. A perusal of the information which the manufacturer of the vehicle Toyota Kirloskar Pvt. Ltd. has published in public domain, declaring the fuel economy to be 17.75 kms per litre would show that the aforesaid mileage was stated to have been achieved under standard test conditions. The disclaimer in the aforesaid published information reads as under:
1. The values declared above are the extract of the results that have been obtained in a mandatory emission test specified in Rule 115 of Central Motor Vehicle Rule 1989 under controlled conditions using a reference fule at an agency authorized by Rule 126 of the said Rules. The values obtained by users will differ from these values due to infinite variables such as driving habits, road and traffic conditions, fuel quality, maintenance practices, loading pattern, ambient conditions and usual engineering tolerances on components and so on.
It would, thus, be seen that the manufacturer of the vehicle had expressly disclosed to the prospective buyers that the mileage claimed by it was the fuel consumption achieved under standard test conditions and the values obtained by the users would differ from those values due to infinite variables, including driving habits, road and traffic conditions, quality of the fuel, the maintenance of the vehicle, the load carried in the vehicle, ambient conditions and usual engineering tolerance of the components. The values mentioned in the aforesaid disclaimer were not exhaustive and it was clearly stated that the number of variables could be infinite.
7. In our opinion, if the manufacturer of a vehicle claims a particular mileage based upon the result of a test conducted by a third party such as ARAI which is a body under the aegis of the Government of India, it cannot be said to have published false information or made a false representation with respect to the fuel economy of the vehicle. The very use of the word falsely in clause I of Section 2(r)(1) of the act clearly indicates that the representation which is impugned before a consumer forum should be false to the knowledge of the person by whom it is made. If a person bonafidely believes upon the report submitted by a third party such as ARAI and represents accordingly to the members of the public, it cannot be accused of having made a false representation. As far as clause VII of the aforesaid provision is concerned that in our view may not be strictly applicable since the said clause applies only to a warranty or a guarantee given by the manufacturer/seller of the vehicle. In any case, even if the mileage of a vehicle under ideal conditions is taken as a warranty or guarantee of the performance of the vehicle, it cannot be said that it was not based on adequate or proper test when the manufactures bases the said warranty or guarantee on the report taken from a third party such as ARAI which before submitting its report subjects the vehicle to test in terms of Rule 115 of the Central Motor Vehicle Rules.
8. As regards the report given by the Punjab Engineering College, Chandigarh, a perusal of the report clearly shows that the vehicle was driven in the city, before the said report came to be given. There is nothing in the report to even suggest that the vehicle was driven under the same controlled conditions under which it was tested by ARAI. There is no information available to us as regards the comparative condition of the road on which the vehicle was driven by ARAI vis--vis the condition on which the vehicle was driven by PEC. We have no information (i) as regards comparative qualification, experience and driving habits of the persons who drover the vehicle, (ii) as regards the traffic conditions which were available at the time the vehicle was driven at Chandigarh vis--vis the traffic conditions under which the vehicle was driven by ARAI, (iii) as regards the quality of the fuel which was used by PEC Chandigarh vis--vis the quality of the fuel used by ARAI and (iv) as regards the load which the vehicle carried when it was driven by the experts of the Punjab Engineering College, Chandigarh. More importantly, the vehicle came to be driven by the experts of Punjab Engineering College sometime in July 2013 whereas it was purchased by the complainant in March 2011. Thus, the vehicle had already been used for about two and half years before it was tested by the experts of Punjab Engineering College, Chandigarh. It can hardly be disputed that with the passage of time, and due to use of the vehicle, the vehicle may not give the same mileage as is given when it is absolutely new. The mileage given by a vehicle is the result of a number of factors including (a) the road on which the vehicle is driven, (b) the traffic on the road at the time it is driven,
(c) the quality of the fuel used in the vehicle, (d) the speed at which the vehicle is driven, (e) the number of times brake is applied to stop the vehicle, (f) load carried in the vehicle, (g) air pressure in the tyres/tubes, (h) condition of the tyres and (i) the overall condition of the vehicle, etc.. Therefore, a vehicle which gives a particular mileage under standard test conditions will never be able to deliver the same mileage when it is driven on a city road and that too, under conditions different from the conditions under which it was test driven.
9. It is contended by the learned counsel for the complainant that the representation made by the manufacturer of the vehicle as regards mileage delivered by the vehicle amounts to unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act. The aforesaid provision to the extent it is relevant reads as under:
(r) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely;
(1) the practice of making any statement, whether orally or in writing or by visible representation which,
(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;
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(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof;
Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;
10. For the reasons stated hereinabove we are of the considered view that the District Forum and the State Commission were not justified in holding the manufacturer guilty of using unfair trade practice on the basis of the report of PEC, Chandigarh. Also, in our opinion, considering that the representation made by the manufacturer of the vehicle was based upon the result of the test conducted by ARAI, the opposite parties cannot be said to have used unfair trade practices for selling the vehicle. Consequently, the revision petitions Nos.3666 and 3667 of 2014 filed by Em Pee Motors Ltd. and revision petition No.3925 of 2014 filed by Toyota Kirloskar Motor Pvt. Ltd. are allowed and the revision petitions Nos.3980-3981 of 2014 filed by the complainant is dismissed. The complaint consequently stands dismissed. In the facts and circumstances of the case there shall be no order as to costs.
The FDRs which the manufacturer had deposited with the District Forum pursuant to the interim order of this Commission be returned by the District Forum to the manufacturer.
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(V.K. JAIN, J.) PRESIDING MEMBER ....
(DR.B.C. GUPTA) MEMBER rk.18 to 20