State Consumer Disputes Redressal Commission
Sh. Yogeshwar Thakur. vs M/S Saluja Motors Pvt. Ltd. & Anr. on 13 January, 2017
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.: 251/2016
Date of Presentation: 26.07.2016
Order reserved on: 05.01.2017
Date of order: 13.01.2017
.....................................................................................
Yogeshwar s/o Shri Prem Chand
Resident of Village Seri Post Office Kushwa
Tehsil Nirmand District Kullu H.P.
... Appellant/ Complainant.
Versus
1. M/s. Saluja Motors Private Ltd
NH-21 Near Harihar Hospital
Village Gutkar District Mandi H.P.
2. Ford India Private Limited
IIIrd Floor Building 10-C DLF Cyber City
BLF Phase-3 Gurgaon Haryana
Through its Managing Director.
...Respondents/ Opposite parties.
...........................................................................................
Coram:
Hon'ble Justice P.S. Rana (R)President.
Hon'ble Vijay Pal Khachi Member.
Hon'ble Meena Verma Member.
Whether approved for reporting?1 Yes.
For Appellant: Mr. Diwan Singh Negi Advocate
For co-respondent No.1 Ex-parte.
For co-respondent No.2: Mr. Prince Chauhan, Advocate
.......................................................................................
O R D E R:
Justice P.S. Rana (R) President Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 20.06.2016 passed by learned District Forum Kullu in Consumer Complaint No. 65/2013 title 1 Whether reporters of the local papers may be allowed to see the order? Yes. Yogeshwar Versus M/s. Saluja Motors Pvt. Ltd. & Anr.
(F.A. No.251/2016) Yogeshwar versus M/s. Saluja Motors Private Limited and others.
Brief facts of Case:
2. Complainant namely Yogeshwar filed complaint under Section 12 of Consumer Protection Act 1986 pleaded therein that he purchased Ford Fista car 1.6 BSIV Duratec EXI Diamond from co-
respondent No.1 who is dealer of co-respondent No.2 on 05.08.2011 vide invoice No. VSLAB00193LS after reading misleading advertisement in newspaper Amar Ujala annexure X placed on record. It is further pleaded in the complaint that co-respondent No.1 mentioned mileage of vehicle as21.27 kilometres per litre. It is further pleaded that delivery of car was given by sale agent at Kullu. It is pleaded that complainant paid `5,80,000/- (five lac eighty thousand) as consideration amount of sale to co-respondent No.1. It is further pleaded that complainant plied the car with his driver Ashok Kumar son of Shri Pune Ram. It is further pleaded that average mileage of vehicle came ten kilometre per litre contrary to advertisement annexure -X placed on record. It is further pleaded that complainant served legal notice upon co-respondent No.1 2 Yogeshwar Versus M/s. Saluja Motors Pvt. Ltd. & Anr.
(F.A. No.251/2016) dealer and co-respondent No.2, manufacturer of vehicle. Following relief sought from District Forum(1) Loss of Rs. Sixty thousand (2) replacement of vehicle (3) Payment of `580000/-( Five lac eighty thousand ) with interest or to repair the vehicle.
3. Per contra version filed on behalf of co- respondent No.1 pleaded therein that complaint filed by complainant is liable to be dismissed as learned District Forum has no territorial jurisdiction to try the present complaint. It is further pleaded that cause of action did not accrue to the complainant within territorial jurisdiction of learned District Forum Kullu. It is further pleaded that complainant is residing in hilly terrain and road conditions are also zig-zag. It is further pleaded that mileage of vehicle depends upon various factors such as road condition road terrain, driving conditions, quality of fuel, proper servicing and maintenance of vehicle & driving skill etc. It is further pleaded that complaint is bad for non- joinder of necessary parties. It is further pleaded that co-respondent No.1 is only a dealer and vehicle was manufactured by Ford India Limited. It is further pleaded that co-respondent No.1 did not 3 Yogeshwar Versus M/s. Saluja Motors Pvt. Ltd. & Anr.
(F.A. No.251/2016) advertise any advertisement relating to mileage. It is further pleaded that proper service of vehicle was given to complainant. Prayer for dismissal of complaint sought.
4. Per contra separate version filed on behalf of co-respondent No.2 pleaded therein that present complaint is based on conjectures and surmises. It is further pleaded that there is no deficiency in service on the part of co-respondent No.2. It is further pleaded that mileage of vehicle depends upon various factors such as road condition fuel conditions & driving patters. Prayer for dismissal of complaint sought.
5. Learned District Forum Kullu Himachal Pradesh dismissed the complaint filed by complainant. Feeling aggrieved against order passed by learned District Forum Kullu appellant filed present appeal before State Consumer Disputes Redressal Commission.
6. We have heard learned Advocate appearing on behalf of appellant and we have also heard learned Advocate appearing on behalf of co-respondent No.2 and we have also perused the entire records carefully.
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Yogeshwar Versus M/s. Saluja Motors Pvt. Ltd. & Anr.
(F.A. No.251/2016) 7 Following points arises for determination:
1) Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2) Final Order.
Findings upon point No.1 with reasons:
8. Complainant namely Yogeshwer adduced evidence by way of affidavit as per section 13(4)(iii) of Consumer Protection Act 1986. There is recital in affidavit that complainant purchased Ford Fista car from co-respondent No.1 who is dealer of co-respondent No.2 on 05.08.2011 vide invoice No. VSLAB00193LS after reading advertisement in newspaper in which co-respondent No.1 has specified mileage of vehicle as 21.27 kilometres per litre. There is further recital in affidavit that delivery of vehicle was given at Kullu where complainant was serving. There is further recital in affidavit that car was registered at Kullu as HP-35-1752. There is further recital in affidavit that deponent plied his car with his driver Ashok Kumar son of Shri Pune Ram. There is further recital in affidavit that mileage of vehicle is 10KM 5 Yogeshwar Versus M/s. Saluja Motors Pvt. Ltd. & Anr.
(F.A. No.251/2016) per litre contrary to advertisement annexure X placed on record.
9. Complainant also adduced evidence by way of affidavit of driver Ashok Kumar as per section 13(4)(iii) of Consumer Protection Act 1986. There is recital in affidavit that deponent is driver of Yogeshwar from September 2011 till date. There is further recital in affidavit that complainant is owner of car Ford Fista No. HP-35-1752 which was purchased from co-respondent No.1 on 05.08.2011. There is further recital in affidavit that vehicle is defective and mileage of vehicle is not proper as advertised in newspapers by co- respondent No.1 in annexure-X.
10. Co-respondent No.1 also adduced evidence by way of affidavit of Naresh Kumar as per section 13(4)(iii) of Consumer Protection Act 1986. There is recital in affidavit that complainant is resident of place which is hilly terrain and road conditions are zig-zag. There is further recital in affidavit that mileage of vehicle depends upon road condition, road terrain, driving condition, proper servicing, maintenance of vehicle, driving skills & specific speed etc. There is further recital in affidavit that proper service was given when ever 6 Yogeshwar Versus M/s. Saluja Motors Pvt. Ltd. & Anr.
(F.A. No.251/2016) vehicle brought for service. There is further recital in affidavit that complainant is not entitled to any relief.
11. Co-respondent No.2 also adduced evidence by way of affidavit as per section 13(4)(iii) of Consumer Protection Act 1986. There is recital in affidavit that manufacturing defect in the vehicle is not proved. There is further recital in affidavit that mileage of vehicle depends upon various factors such as road conditions fuel condition & driving pattern etc. There is recital in affidavit that as manufacturing defect is not proved on record Ford company is not liable to pay compensation to the complainant. There is further recital in affidavit that dealer did not accept the amount from customer as agent of manufacturer. There is further recital in affidavit that dealer accepted the amount from customer in his personal capacity. There is further recital in affidavit that dealer did not pass any consideration amount to company relating to vehicle in dispute received from consumer.
12. Local commissioner namely Pawan Kumar Regional Manager submitted inspection report of vehicle No. HP35-1752 placed on record. 7
Yogeshwar Versus M/s. Saluja Motors Pvt. Ltd. & Anr.
(F.A. No.251/2016) As per report of local commissioner vehicle was driven 100 kilometres in plain and hilly area. As per local commissioner report mileage of vehicle is 15.97 Kms per litre. There is no evidence on record that local commissioner has hostile animus against opposite parties at any point of time. Report of local commissioner was affirmed by learned District Forum. Report of local commissioner is trustworthy, reliable and inspire confidence.
13. Submission of learned Advocate appearing on behalf of appellant that there is manufacturing defect in the vehicle and on this ground appeal be allowed is rejected being devoid of any force for reasons hereinafter mentioned. Learned District Forum appointed expert Regional Manager HRTC Kullu as local commissioner and sought report of local commissioner placed on record. We have carefully perused report submitted by local commissioner. Local Commissioner did not mention in his report that there is manufacturing defect in the vehicle. We are of the opinion that manufacturing defects is always proved by way of adducing expert report. In the absence of any manufacturing defect report on record it is held that 8 Yogeshwar Versus M/s. Saluja Motors Pvt. Ltd. & Anr.
(F.A. No.251/2016) manufacturing defect is not proved in the present complaint
14. Submission of learned advocate appearing on behalf of appellant that co- respondent No.1 has adopted unfair trade practice by way of advertising mileage of vehicle as 21.27 kilometres per litre vide annexure-X placed on record is accepted for reasons hereinafter mentioned. We have carefully perused advertisement annexure-X placed on record relating to vehicle. As per advertisement annexure- X there is recital in advertisement that mileage of vehicle is 21.27 kilometres per litre. In advertisement annexure -X address has been mentioned as Saluja Ford Mandi phone numbers mentioned as 98160 13107& 01905-246182. We are of the opinion that advertisement relating to mileage was given from Mandi by dealer co- respondent No.1. We have also perused the local commissioner report submitted by Regional Manager HRTC Kullu. Local Commissioner has specifically mentioned in local commissioner report that he driven the vehicle for about 100 kilometres in hilly and plain areas. Local commissioner has submitted in his report that vehicle has given 9 Yogeshwar Versus M/s. Saluja Motors Pvt. Ltd. & Anr.
(F.A. No.251/2016) average mileage of 15.97 kilometres per litre. Local Commissioner has driven the vehicle in presence of owner of car and in presence of representative from Saluja Motors. Report of local commissioner was not set-aside by learned District Forum but was affirmed. We are of the opinion that it is expedient in the ends of justice to rely upon local commissioner's report placed on record. Mileage of vehicle is shown in advertisement annexure-X as 21.27 kilometres per litre but factually milege of vehicle is proved as 15.97 Kms per litre as per local commissioner report. We are of the opinion that above stated facts amount to unfair trade practice as defined under Consumer Protection Act 1986 on the part of dealer co- respondent No.1. No explanation given by dealer co-respondent No.1 as to how his phone numbers 98160-13107 & 01905-246182 figured in advertisement annexure -X. It is well settled law that dealer co-respondent No.1 cannot exercise unfair trade practice by way of advertisement for the purpose of increasing his sale. There is no evidence on record in order to prove that advertisement annexure-X was published with the consent of manufacturer.
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Yogeshwar Versus M/s. Saluja Motors Pvt. Ltd. & Anr.
(F.A. No.251/2016)
15. We have carefully perused advertisement annexure-X placed on record. In advertisement annexure-X placed on record address of co-respondent No.1 has been mentioned and in advertisement annexure -X mobile number of co-respondent no.1 has specifically been mentioned. There is no evidence on record that co- respondent No.1 has taken any action against Manager of newspaper for advertising wrong information to the general public. It is settled law that consumer Protection Act 1986 is a special Act and it is well settled law that Consumer Protection Act 1986 was enacted to protect the interest of consumers. It is well settled that under Consumer Protection Act 1986 a quasi judicial machinery is set up at the District, State and national levels to protect the interest of consumer on the principles of natural justice. As per Regulation 26 of Consumer Protection Regulations 2005 code of Civil Procedure 1908 is not applicable before District Forum, State Commission, National Commission subject to provisions of CPC 1908 mentioned in Consumer Protection Act, 1986 and sub rules made there under. It is well settled law that whenever there is conflict between general 11 Yogeshwar Versus M/s. Saluja Motors Pvt. Ltd. & Anr.
(F.A. No.251/2016) law and special law then special law always prevails. Point No.1 is decided accordingly. Point No.2 final order
16. In view of findings upon point No.1, appeal is partly allowed. Appeal against co- respondent No.2 is dismissed. Appeal against co- respondent No.1 is partly allowed. It is held that co- respondent No.1 has used unfair trade practice by way of misleading advertisement annexure -X placed on record relating to mileage of vehicle. We order that co-respondent no.1 shall pay a sum of Rs.25000/-,( Twenty five thousand) by way of compensation to the complainant. We further order that co-respondent No.1 shall also pay costs of litigation to the tune of Rs.3000/- (Three thousand) to the complainant. We also direct co- respondent No.1 to dis-continue unfair trade practice by way of advertisement forthwith and not to repeat again. Local Commissioner report placed on record and advertisement annexure-X placed on record will form part and parcel of order. Other relief sought by appellant declined. Order of learned District Forum Kullu is modified accordingly. File of learned District Forum alongwith certified copy of order be sent back forthwith and 12 Yogeshwar Versus M/s. Saluja Motors Pvt. Ltd. & Anr.
(F.A. No.251/2016) file of State Commission be consigned to record room after due completion. Certified copies of order be also sent to parties forthwith in accordance with rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 13th day of January 2017.
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