National Consumer Disputes Redressal
M.R. Ramesh vs M/S.Prakash Moped House & Ors. on 2 May, 2003
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 831 OF 2001 (From the order dated 21.7.2000 in Appeal No.200/99 of the State Commission Karnataka) M.R. Ramesh .. Petitioner Vs. M/s. Prakash Moped House & Ors. .. Respondents BEFORE: HON'BLE MR. JUSTICE D.P. WADHWA, PRESIDENT. MRS. RAJYALAKSHMI RAO, MEMBER. MR. B.K. TAIMNI, MEMBER. Unfair trade practice - Hero Honda Motor Cycle - claim of 80 kms. per liter of petrol - misleading advertisement - standard conditions - not intelligible to a layman - restraint put on the manufacturer. For the petitioner : Mr. Dayan Krishnan, Advocate/Amicus Curiae For the respondents : Mr. P.A.S. Rao, Advocate DATED THE 2nd May, 2003: O R D E R
D.P. WADHWA, J.( PRESIDENT):
It is the complainant who is the petitioner before us. His complaint was that he had purchased Hero Honda motor cycle CD-100 Bike on 26.2.93. Though he was assured that the vehicle would give mileage of 80 kms. per litre but it was not so. It was deficiency in service. District Forum did not hold in his favour nor did the State Commission on appeal filed by him.
Feeling aggrieved, he has come before us.
In support of his plea the complainant also filed an advertisement put in by the respondents in the daily Deccan Herald dated 21.10.93 where in respondents claimed that vehicle will give mileage of 80 Kms. per litre. This advertisement has not been denied by the respondents which also gives the name of various authorized dealers and one of them being the first respondent.. In the present case, first respondent is the authorized dealer of Hero Honda motor cycle manufactured by the respondent Nos. 2 and 3. The case of the respondents as far as this revision petition is concerned is that it was not on the basis of the advertisement filed by the complainant that he purchased Hero Honda motor cycle. They have, however, also not filed any advertisement of the period approximate to the date of purchase of the motor cycle by the complainant. We directed the respondents to file advertisements issued by them near about the period of purchase of the motor cycle by the complainant. In pursuance to that they filed 7 advertisements; 3 newspaper advertisements of date -
26.3.1990 (English, Telugu and Malyalam), one magazine of May 1992 (English), three paper advertisement, December 1992 (language not mentioned), April 93 (kanarase), April 93 (English).
But these advertisements do not show as to in which newspaper or magazine these are published. They are best pamphlets or handbills. Dates have been put in hand by the respondents. In the advertisement of December, 1992 it is claimed that Hero Honda motor cycle gives mileage of 80 kms. per litre of petrol.
On the numerical figure 80 there is a asterisk mark and if we see the endorsement in small print at the foot of this pamphlet it says that "at 40 kmph/130 kg." In Kannada pamphlet same endorsement in small print is given. There is nothing to show that as to when these pamphlets have been issued to the public and how it is claimed that complainant was made aware of these pamphlets. We would have certainly expected from the respondents to bring on record any newspaper cutting relating to the advertisement of the motor cycle in question and pertaining to the period when purchase was made by the complainant. On the other hand they have offered no explanation whatsoever as to how advertisements filed by the complainant came to be issued and why there is no indication of any kind that under what conditions mileage could be less than 80 Kms. Per litre than as promised.
We do not find that endorsement at the foot of the pamphlet saying that 40kmph/130 kg. could be intelligible to a consumer purchasing the motor cycle. It is also stated that motor cycle can run 80 kms. per litre of petrol on standard conditions. These so-called standards could certainly not be intelligible to a common man. Respondents have also filed on the letter head of Prakash Moped House , the authorized dealer of the motor cycle, indicating tips to get fuel economy. This is dated 30.9.95 and these tips are typed and are in English. It is stated that these tips were given to the complainant in the brochure at the time of purchase of the motor cycle.
Nevertheless complainant has stated he had driven the vehicle with all reasonable care in accordance with the tips.
Such an advertisement as put in by the respondents is misleading. It amounts to unfair trade practice. When the respondents claimed that motor cycle can give mileage of 80 kms. per litre they cannot just be absolved of their responsibility not to clearly indicate that this would be so when the motor cycle is driven at a speed of 40 kms per hour and the load would be 130 kg. Simply by putting an asterisk and then indicating such condition in the small print at the bottom of the advertisement is certainly deceptive. Moreover, when it is stated that this mileage can be obtained at a particular speed and load under "standard conditions" then those standard conditions must be indicated so that the consumer is duly informed of the bargain he is in. Rather in our view any such advertisement should take into account the conditions of the roads in the cities.
There is no answer to the advertisement brought on record by the complainant which does not contain even asterisk mark or any warning that the mileage can be obtained at a particular speed and on particular load and under standard conditions. For not having produced any advertisement of the relevant period we must raise a presumption against the respondents that advertisement which complainant filed and which though pertained to subsequent period was one which was being put in by the respondents in the regional news papers. It is in this context that the word 'assured' had been used by the complainant. It is too much hair splitting by the counsel for the respondents when he says that in the complaint no allegation was made by the complainant that he was misled by any advertisement. Now if we refer to the complaint it is in Kannada language and it has five paras where the complainant in effect says that he purchased Hero Honda motor cycle and was getting a speed of 50-56 kms. per litre He said he was getting 22 Kms. less mileage than promised. Other defects which he pointed out are not relevant as his only ground is of low mileage. Relief he claimed was that his motor cycle should give mileage of 80 kms. per litre of petrol in city traffic conditions and in case this could not be done he should be refunded his money. After complainant got copy of the written version of respondents, he gave more details.
Mr. Rao, learned counsel for the respondents was at pains to tell us the law of pleadings as contained in the Code of Civil Procedure. Complainant as a simpleton consumer does not know English and of his own he sent his complaint in Kannada language to the District Forum. We find he himself had been appearing both in the District Forum and State Commission without the help of any lawyer. His complaint to our mind is enough to tell us as to what is his grievance and what he wants. A petty consumer is pitted against a large corporation which can engage best legal brains to find holes in the case of the complainant. A Consumer Forum is not bound by the strict rules of pleadings as contained in the Code of Civil Procedure. It is better if the technical rules of civil jurisprudence do not affect Consumer Forums.
Then Mr. Rao points out with reference to few judgments of the Hon'ble Supreme Court as to our jurisdiction in revision petition. But then when both the District Forum and the State Commission have misconstrued the whole case it had led to miscarriage of justice it is the duty of the National Consumer Commission to step in and help the poor consumer pitted against an industrial house. It was on this account we requested Mr. Dayan Krishnan, Amicus to assist us in the matter and we record our appreciation of his assistance rendered to us. It was also the submission of Mr. Rao that in the job cards, complainant never made a complaint of low mileage but then the facts remained that twice he paid a fee of Rs.15/- for checking the mileage and unless he had a complaint about that there was no reason for him to have the mileage checked twice after paying the requisite fee to the respondents.
Since complainant did not appear before us it is difficult for us to consider the request for refund of the price of the motor cycle and further when the matter is almost 10 years old, how to direct the respondents to see that the motor cycle gives mileage of 80 kms. per litre of petrol on the condition of 40 kmph/130 kg.
In the circumstances of the case, relief will have to be modified. But one thing which is striking is that the respondents had indulged in unfair trade practice within the meaning of clause ( r ) of Section 2(1) of the Consumer Protection Act whereby it has to be held that respondents falsely represented that the motor cycle sold by them would give mileage of 80 kms. per litre of petrol when it was not so and there was no clear and intelligible warning in what circumstances such a claim had been made.
We would, therefore, restrain the respondents henceforth from making such a claim that the motor cycle manufactured and marketed by them would give mileage of 80 kms. per litre of petrol unless any such advertisement clearly state in the same type of letters as to how such a claim had been made and what are the standard conditions. Advertisement should not mislead and should give clear picture of the quality of the goods sold. As noted above, since it is difficult for us to grant relief claimed by the complainant due to passage of time, we further direct that he should be paid a sum of Rs.25,000/- by way of compensation.
............................J (D.P. WADHWA) PRESIDENT ...............................
(RAJYALAKSHMI RAO) MEMBER .............................................
(B.K. TAIMNI) MEMBER