State Consumer Disputes Redressal Commission
Sukhmani Automobiles vs Kuldeep Singh on 20 September, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
1) First Appeal No.272 of 2017
Date of Institution: 17.04.2017.
Reserved on : 18.09.2017
Date of Decision : 20.09.2017.
Sukhmani Automobiles, Near Branch SBI Bank, Mehal Road, Sangrur,
through its Manager. ......Appellant/OP No.1
Versus
1. Kuldeep Singh S/o Sh.Harbhajan Singh, R/o House No.33, Street
No.6, Shivam Colony, Sangrur.
.......Respondent No.1/Complainant
2. Mahindra Two Wheelers Ltd. D-1 Block, Plot No.18/2 (Part) M.I.D.C.
Pune through its Manager/GM.
.......Respondent No.2/OP No.2
First appeal against order dated
10.03.2017 passed by the District
Consumer Disputes Redressal Forum
Sangrur.
Quorum:-
Sh. J.S. Klar, Presiding Judicial Member.
Smt.Surinder Pal Kaur, Member Present:-
For the appellant : Sh.P.K.Garg, Advocate
For respondent No.1 : Sh.Kirpal Singh, Advocate
For respondent No.2 : Sh.Vaibhav Narang, Advocate
AND
2) First Appeal No.289 of 2017
Date of Institution: 24.04.2017.
Reserved on : 18.09.2017
Date of Decision: 20.09.2017.
Mahindra Two Wheelers Ltd. D-1 Block, Plot No.18/2 (Part) M.I.D.C. Pune through its Manager/GM. .....Appellant/Opposite Part No.2 Versus First Appeal No.272 of 2017 2
1. Kuldeep Singh S/o Sh.Harbhajan Singh, R/o House No.33, Street No.6, Shivam Colony, Sangrur.
.......Respondent No.1/Complainant
2. Sukhmani Automobiles, Near Branch SBI Bank, Mehal Road, Sangrur, through its Manager.
.......Performa Respondent First appeal against order dated 10.03.2017 passed by the District Consumer Disputes Redressal Forum Sangrur.
Quorum:-
Sh. J.S. Klar, Presiding Judicial Member. Smt.Surinder Pal Kaur, Member Present:-
For the appellant : Sh.Vaibhav Narang, Advocate For respondent No.1 : Sh.Kirpal Singh, Advocate For respondent No.2 : Ex-parte ................................................... J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
By this common order, we intend to dispose of the above referred First Appeal No.272 of 2017 and first appeal no.289 of 2017 together, as they have arisen out of the same order of District Forum Sangrur dated 10.03.2017. The order shall be pronounced by us in main first appeal no.272 of 2017 titled as "Sukhmani Automobiles Vs. Kuldeep Singh & Anr.", which has been filed by OP No.1, now appellant. The appellant of this appeal is OP No.1 before the District Forum in original complaint and respondent No.1 of this appeal is complainant before the District Forum and respondent No.2 is OP No.2 therein and they be referred as such, hereinafter, for the sake of convenience.
2. First appeal No.289 of 2017 has been directed by the appellant against order dated 10.03.2017 passed by the District Consumer Disputes Redressal Forum Sangrur (in short 'the District Forum'), accepting the complaint of the complainant by directing the OPs to refund the amount of First Appeal No.272 of 2017 3 Rs.51,850/-, subject to returning of the motorcycle in question by the complainant along with necessary documents for the transfer of the vehicle, besides Rs.10,000/- as compensation for mental tension and harassment and Rs.5,000/- for litigation expenses. The appellant of this appeal is OP No.2 and respondent No.1 of this appeal is complainant in the original complaint before the District Forum and they be referred as such, hereinafter, for the sake of convenience.
3. Complainant Kuldeep Singh filed the complaint under Section 12 of the Consumer Protection Act, 1986 against OPs on the averments that complainant purchased a Motorcycle model Centuro, bearing Engine No.FAO-76858 Chassi No.FIA-96038, Model Centuro-01, registration No.PB-13AP-0766 from OP No.1, vide challan No.13 dated 6.4.2015 for consideration of Rs.51,850/-, and OP No.1 also charged Rs.3859/- as processing fee and VAT. OP no.2 is manufacturer of the above said vehicle and OP No.1 is authorized dealer of OP No.2. OP No.1 assured the complainant that average of the vehicle will be 85 KPL. OP No.1 advertised regarding 85.4 K.M. mileage of the vehicle through pamphlets circulated through newspaper etc. After purchase of the above said vehicle, he noticed that average of the vehicle was only 57 KPL instead of 85 KPL as assured to him by Ops. He approached Op No.1 for six times to remove this defect, but OP No.1 assured him again & again to remove the defect and Op No.1 had not removed it. In this regard, record i.e. job card was available with OP No.1. He made complaint to Mohindra Care on Mobile No.18002338883 many times on his mobile, but no action has been taken thereon. The vehicle covered 14000 KPL from the date of purchase upto 15.08.2016. According to average, 85 KPL has been assured by OP No.1 165 Ltr of petrol was to be consumed by the First Appeal No.272 of 2017 4 motorcycle of complainant, whereas 246 Ltr petrol has been consumed by it. As such, 81 Ltr of petrol has been consumed in excess by the vehicle in question. As such, a loss of Rs.5500/- has been caused to him. He sent a legal notice to OP No.1 through registered post and also sent a copy of same notice through e-mail to OP No.2. OP No.1 sent reply to the above legal notice founded on wrong and baseless facts and allegations. He never threatened the employees of Ops, as mentioned in the reply to legal notice. Ops made false allegations upon him with ulterior motive only. Ops refused to rectify the defects of the vehicle. He alleged unfair trade practice and deficiency in service on the part of Ops. He filed complaint against OPs and prayed that Ops be directed to refund the price of Rs.51,850/- of the vehicle and Rs.3859/- as processing fee and VAT charges alongwith interest at the rate 8% p.a. from the date of purchase of motorcycle till its realization and Rs.11,000/- as compensation for mental harassment and litigation expenses.
4. Upon notice, OP No.1 filed its written reply and contested the complaint of the complainant vehemently. It was averred in it that Op No.1 is dealer of OP No.2, which is the manufacturer of the motorcycle and fact of purchase of motorcycle by complainant from OP No.1 has not been denied. OP No.1 denied this fact that it assured average of 85 KPL of the motorcycle to the complainant. The alleged average by the complainant was at the instance of manufacturer OP No.2 and it was specifically told to the complainant about the same. The alleged average has been mentioned by OP No.2 after getting the vehicle tested and verified from an approved and authorized agency ARAI. It denied this fact that complainant purchased the motorcycle on the alleged assurance. It disclosed the complainant the circumstances and conditions under which First Appeal No.272 of 2017 5 the manufacturer claimed the alleged average of 85 KPL of the vehicle and further alleged that average of 85 KPL would change at the time of driving of the said vehicle on road, as per driving style of the driver, road condition and driving motorcycle in market with heavy traffic, traffic jam condition etc. The average of 57 KPL is dependent upon on the way of driving of motorcycle, road condition and traffic condition. OP No.1 attended the complainant on each and every occasion. The complainant wanted to sell the motorcycle, but he could not get the price as per his wishes in the market, so he alleged the ground of low mileage to pressurize OP No.1 just to get the cost of motorcycle back. His intention of selling the motorcycle became clear on the remarks given by him on job card dated 14.09.2015. He visited the workshop of OP No.1 on 21.08.2016 and OP No.1 returned it after examining it thoroughly that there were no problem in the motorcycle, as mechanic checked it thoroughly. The motorcycle, which was given to the complainant i.e. Complainant visited the workshop of OP No.1 on 21.08.2016 and OP No.1 returned it after examining it thoroughly finding that there was no problem in the motorcycle, as mechanic had checked it thoroughly. Op no.1 prayed for dismissal of the complaint.
5. OP No.2 filed its separate written reply and contested the complaint of the complainant vehemently. It was further averred that the relation of Op No.1 and Op No.2 is principal to principal basis and OP No.2 has no privity of contract with complainant. Op No.2 is not liable for any acts, omissions or commissions of OP No.1. Any manufacturing defect in the vehicle has been denied by Op no.2. He purchased the motorcycle from Op no.1 the authorized dealer independently. Fuel efficiency was declared as per the government certification tests which First Appeal No.272 of 2017 6 are mandatory for selling any vehicle in India. Certification tests are conducted inside the Govt. laboratory under controlled environment. This fuel efficiency is not always achieved on regular customer usage, due to traffic conditions, unwanted stops and vehicle being kept inoperative and idle for a long time. There is no replacement of vehicle, as per vehicle warranty conditions issued by OP No.2. OP No.2 denied any manufacturing defect in the vehicle as it was got tested by Op No.2 from competent authorities. OP No.2 prayed for dismissal of the complaint.
6. The complainant tendered in evidence his affidavit Ex.C-5, and documents Ex.C-2 to Ex.C-4, Ex.C-6 and closed the evidence. As against it, Op No.1 tendered in evidence affidavits Ex.OP1/1 & Ex.OP1/2 along with documents Ex.OP1/3 & Ex.OP1/4 and closed it. Op No.2 tendered in evidence affidavit Ex.OP2/1 along with documents Ex.R2/1 to Ex.R2/4 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant, as referred to above. Dissatisfied with the above order of District Forum Sangrur, Op No.1&2 now appellants in the above appeals directed these separate appeals against the same.
7. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. Annexure R-2/1 is the Photostat copy of job card No.2070 dated 14.09.2015 of the motorcycle. The average problem of its mileage has been recorded in this job card. Meter reading has been recorded as 5219 , 62 Km. The grievance of the complainant in this job card is that when the motorcycle was driven at 60 KM, it gave average of 40-45 KM only. Ex.R2/2 is another job card No.2362 dated 14.11.2013 and it recorded check average 100 ML 79 KM, Ex.R/3 to Ex.R2/4 are also job cards on the First Appeal No.272 of 2017 7 record, whereby it was certified to change oil, engine clean and spark plug washing in Job card Ex.R2/4. Ex.C-1 is the bill dated 06.04.2015 of Rs.51,850/-. Ex.C-2 is legal notice dated 22.08.2016 coupled with postal receipt Ex.C-3. Ex.C-4 is reply to legal notice. Ex.C-5 is affidavit of the complainant to the effect that motorcycle on account of its inherent defective condition gave lower side of output of the oil. Ex.C-6 is the pamphlet for sale of the motorcycle. OPs tendered in evidence affidavit of Vijayendra Singh, authorized representative of OPs vide Ex.OP2/1 admitting the fact of sale of motorcycle to the complainant. He stated that as per warranty, there is no provision for replacement of vehicle or for refund of the price. He further stated that vehicle was got duly tested before selling it in the market and its average depends on the driving habits of the driver. We have already referred to job cards, which have also been placed on record by OPs. Ex.OP1/1 is affidavit of Sale Manager. Ex.OP1/2 is affidavit of Baljeet Singh, Partner placed on the record.
8. Counsel for OP No.2 referred to law laid down by Hon'ble National Commission in "Sophy Thomas & Anr. Vs. Indus Motors Co. Pvt. Ltd.
& Ors." , wherein it has been held that complainant in his complaint has not mentioned about the promise by OP regarding mileage to be given by the vehicle- commissioner had test driven the repaired vehicle after long period of sale of the vehicle and mileage depends on number of factors- no manufacturing defect was found. Undoubtedly, if the manufacturer of the 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 representative with respect to the fuel First Appeal No.272 of 2017 8 economy of the vehicle. From evidence on the record particularly job cards complainant has been complaining about low average of OPs repeatedly. Complainant visited OPs number of times for getting the vehicle set right in not giving appropriate average. Complainant being not a well educated person suffered in this case by repeatedly taking vehicle to Op No.1 on account of its low average due to stated manufacturing defect of the vehicle. The average of fuel sometimes could be less due to road conditions and so on. The vehicles are manufactured in India keeping in view the road conditions by the manufacturer companies. The manufacturing companies and authorized dealers generally allure the customers by giving false publicity of assurances about the particular mileage of the vehicle. The Consumer purchases the vehicle by taking the assurances of OPs as represented. Consequently, we find that repeatedly visiting OP's workshop, the complainant has shown some manufacturing defects in the vehicle. Sequentially, District Forum correctly ordered the returning the price of the vehicle to complainant by OPs. We find that there is manufacturing defect in it otherwise there was not need to take it repeatedly to the service station of OP No.1. We thus, modify the order of District Forum by ordering that Op No.1 shall refund the amount of Rs.51,850/- to the complainant so far as the amount of compensation of Rs.10,000/- for mental harassment and Rs.5,000/- litigation expenses is concerned , both OPs No.1 &2 shall be equally liable to pay it to complainant jointly and severally. The order of District Forum is thus, modified in both the appeals as referred to above.
9. As a result of our above discussion, we dismiss appeal No.272 of 2017. Resultantly appeal No.289 of 2017 is partly accepted and partly dismissed as filed by OP No.2, as referred to above. First Appeal No.272 of 2017 9
10. The appellant of first appeal no.272 of 2015 had deposited the amount of Rs.25,000/- and thereafter another sum of Rs.15,000/- was deposited as per the directions of this Commission. The registry is hereby directed to remit Rs.25,000/- + Rs.15,000/- along with interest, which accrued thereon, if any, to respondent No.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days from this order provided there is no stay order by the Higher Forum.
11. The appellant of first appeal no.289 of 2017 had deposited the amount of Rs.25,000/- at the time of filing of the appeal. The registry is hereby directed to remit Rs.15,000/- along with interest, which accrued thereon, if any, to the respondent No.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days from this order provided there is no stay order by the Higher Forum. Remaining amount shall be remitted to appellant of this appeal.
12. Arguments in above referred appeals were heard on 18.09.2017 and the order was reserved. Certified copies of order be communicated to the parties under rules.
13. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER September 20, 2017.
Rupinder-2