Tamil Nadu

South Chennai

56/2012

N.C.Ponnuswamy - Complainant(s)

Versus

ABT Maruthi Ltd & Others - Opp.Party(s)

M/s.Vivekanandan

01 Jun 2016

ORDER

                                                                        Date of Filing :  24.02.2012

                                                                        Date of Order :  01.06.2016.

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

           DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.56/2012

WEDNESDAY THIS  1^ST  DAY OF JUNE  2016

 

N.C. Poonuswamy,

No.10/27, Coats Road,

T.Nagar,

Chennai 600 017.                                             ..Complainant 

                                                   ..Vs..

1.  The Managing Director,

Maruthi Suzuki India Ltd.,

Gurgaon – 122 015.

Haryana.

 

2. The Chief General Manager,

Maruti Suzuki India Ltd.,

Gurgaon – 122 015.

Haryana.

 

 

3. The Manager,

ABT Maruti Ltd.,

102, Mount Road,

Guindy,

Chennai 600 032.                                                ..Opposite parties  

 

 

For the Complainant                  :   M/s. M. Vivekanandan.

For the opposite parties 1 & 2     :   M/s. Ramasubramaniam & Associates.

For the opposite party-3            :   Exparte.     

 

        Complaint under section 12  of the Consumer Protection Act 1986.  The complaint is filed seeking direction against  the opposite parties to refund amount of Rs.26,000/- with interest and also to pay a sum of Rs.5,00,000/- as compensation  and to replace the engine and fuel gauge of the vehicle  and also to pay Rs.20,000/- as cost of the complaint.

ORDER

THIRU.   T.PAUL RAJASEKARAN ::    MEMBER-II      

1.The case of the complainant is briefly as follows:

        The complainant submit that he purchased a Maruthi Estilo car from the opposite party-3 on 19.3.2010 and the car was delivered by the opposite party on 23.3.2010 along with three years warranty.    At the time of purchasing the car it gone to mileage of 19 k.m. per liter.  Based on the assurance given by the opposite party about the mileage the complainant purchased the said Maruti car it gone to and the substantial difference in the mileage was unacceptable and amounted to deficiency in service and unfair trade practice.   There is no indication mark in the fuel gauge like 1/4^th 1/2th and 3/4^th level mark in the fuel gauge.    The complainant further states that to know the exact mileage per litre, the complainant had given the car for kilometer function test to third opposite party and after testing by their engineer, the third opposite party has certified that it is giving a mileage of 12 km per liter only.  The complainant had brought to the notice of opposite party on 4.8.2011 complaining about the defects in the fuel gauge for which the opposite party had replied in order to seek his grievances redress he had sent legal notice to the opposite party seeking replacement of fuel gauge and engine, failing which he will initiate appropriate legal action.   Due to defect in the fuel gauge, it is not indicating the amount of fuel immediately after filing the fuel tank.  This is a default of manufacturer’s defect.   After purchase the car, the complainant used the car till the date, about 13,000 kilometers in about 19 months.  Again the complainant issued a lawyer’s notice to the opposite party  on 24.10.2011 calling upon them to replace the deficient fuel gauge and engine of the car and rectify the complaint within 15 days from the date of receipt of the notice.  The 3^rd opposite party relied through their advocate on 15.11.2011 with regard to the above notice stating that the complainant allegations are denied and the vehicle fuel gauge and engine is prefect and did not accept the deficiency of the quality of the car.    The act of the opposite parties amount to deficiency in service which caused mental agony and hardship to the complainant.      As such the complainant sought for claim of to refund amount of Rs.26,000/- with interest and also to pay a sum of Rs.5,00,000/- as compensation  and to replace the engine and fuel gauge of the vehicle  and also to pay Rs.20,000/- as cost of the complaint.  Hence the complaint.

Written version of opposite parties 1 & 2 are briefly as follows:-

2.     The opposite parties denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.  The opposite parties submit that the complainant has filed a frivolous and vexatious complaint and the allegations were false and the complaint has to be dismissed under Sec.26 of COPRA 1986.  The opposite party had not disputed about the consideration and delivery of the car to the complainant and expressed the primary warranty of the vehicle in question had concluded on 18.3.2012.   The opposite party stated that the complainant failed to disclose the specific cause of action and the demands raised by the complainant is beyond this scope of warranty and which is an ulterior motive the complainant desires to get undue gain it is requested by the opposite party  to dismiss the complaint in limine.   It is further contended by the opposite party that under Sec. 2 (1) (c ) of the COPRA the purported complaint is outside the scope  the compensation under Sec. 14 (1) (d) of COPRA 1986 the complainant failed to prove the loss or injury suffered by him due to the negligent of the opposite party.    The opposite party had stressed it is a flagrant abuse of the process of law and the complainant estopped in filing the present complaint is own act and contract.  Hence there is no locus standi u/s 26 of the COPRA.  The opposite party has a brought to the notice of the forum after homologation test is made on the aspect of quality safety and limitation norms. Opposite party-3 had carried out pre delivery inspection including road test and delivered the vehicle to the opposite party in a road worthy condition.   The opposite party further explains  the opposite party provides compulsory free inspection services at 1000 km. are one month 2^nd free inspection service are 6 month and 3^rd free inspect service at 12 month whichever comes first.  According the complainant  availed for 3 service from the opposite party and disputed or brought to the notice of the opposite party about the defects which pleads to loss and agony to the opposite party after completing 3 free service he also availed paid services as prescribed in the contract   the complainant had brought to the notice of the opposite party about the defects that he found in the vehicle after the lapse of 19 months from the date of purchase.    The mileage of the vehicle is satisfied by ARAI certification required u/s 115 of Central  Motor Vehicle Rules / Act.   The opposite party-3 had elicited the mileage of vehicle depends on several  facts driving habits hear change pattern usage of Air conditioner, Air pressure in the tyres wind speed, traffic conditions fuel quality, non adulterated standard fuel, maintenance of the vehicle,  road conditions  etc.  It is contended that the complainant has not brought any of his problem to the opposite party before the completion of services and the allegations about non functioning of indicator in the fuel gauge and the fuel gauge which is fixed in the said vehicle is digital indicator as soon as  the blinking begins fuel has to be immediately filed.   The averments made by the complainant and the complaint are speculative in nature and no ground in the eyes of law.     The complainant misconceived the facts elicited in the version of the opposite party and the complaint is mere exaggeration which proves a malafide intention to make good of this forum.      Hence there is no deficiency in service on the part of the  opposite parties.     Therefore this compliant deserve to be dismissed with costs. 

3.     Even after receipt of the notice from this forum in this proceeding, the 3^rd opposite party did not appear before this Forum and did not file any written version.  Hence the 3^rd opposite party was set exparte on  6.6.2012.

4.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A17 were marked on the side of the complainant.   Proof affidavit of 1^st and 2^nd Opposite parties  filed  and Ex.B1 to Ex.B9 were marked on the side of the 1^st and 2^nd  opposite parties.    

5.      The points that arise for consideration are as follows:-

1)   Whether there is any deficiency in service on the part of the opposite parties?

 

2. Whether the complainant is entitled to the  reliefs sought for?.

6.     POINTS 1 & 2 :

           Perused the complaint filed by the complainant and his proof affidavit and documents Ex.A1 to Ex.A17  were marked on the side of the complainant.  Written version and proof affidavit filed by the 1^st and 2^nd opposite parties  and  the documents Ex.B1 to Ex.B9 were marked on the side of the 1^st and 2^nd opposite parties and also considered the both side arguments.

7.     The complainant purchased a Maruthi Estilo car from the opposite party-3 on the basis of invoice No.VSL09003406 dated 19.3.2010 and the car was delivered by the opposite party on 23.3.2010.    The complainant allegation was that  in the advertisement given by the opposite party under Ex.A1 the said car will give a consumption of 19 km per liter.  The complainant had paid a consideration of Rs.3,99,409/- on 11.3.2010 under Ex.A2 and acknowledged the test drive offer on 7.3.2010 from the opposite party and acknowledged the commitment check list under Ex.A3 order booked on 11.3.2010 and acknowledged the x-warranty dated 21.5.2010 from the opposite party  and the warranty said to be valid up to 22.3.2013 under Ex.A6 from the opposite party-3.     The said vehicle was registered on 22.3.2010 with registration No.TN09B 9309.   The complainant an acknowledged the PID copy and other relevant items from the opposite party under Ex.A11 and mileage testing report under Ex.A12.  The complainant had brought to the notice of opposite party on 4.8.2011 complaining about the defects in the fuel gauge on 4.8.2011 under Ex.A13 for which the opposite party had replied under Ex.A14 in order to seek his grievances redress he had sent legal notice to the opposite party seeking replacement of fuel gauge and engine failing which he will initiate appropriate legal action.  The opposite parties’ counsel had denied the all the allegations  raised by the complainant Ex.A16 since there is no remedy complainant has got.  He approached and filed this complaint to this forum on 24.2.2012 under S.R.914/12.    The complainant had submitted an Indian Express news dated 24.8.2012 about the unfair trade practice where he has shown the Delhi DCDRF, had ordered to pay compensation on the misleading advertisement the Maruthi Ltd., adopted in the mileage to its advantage without corresponding to the consumer Boucher safe by Maruthi himself under additional documents filed by the complainant.  This citation over writes the National Commission order decided on September 7^th 2015 hence the recent order will be taken into consideration for the present case.  

8.    The opposite parties 1 & 2 stated that the complainant has filed a frivolous and vexatious complaint and the allegations were false and the complaint has to be dismissed under Sec.26 of COPRA 1986.  The opposite party had not disputed about the consideration and delivery of the car to the complainant and expressed the primary warranty of the vehicle in question had concluded on 18.3.2012.   The opposite parties stated that the complainant failed to disclose the specific cause of action and the demands raised by the complainant is beyond this scope of warranty and which is an ulterior motive the complainant desires to get undue gain it is requested by the opposite party  to dismiss the complaint in limine.   It is further contended by the opposite parties that under Sec. 2 (1) (c ) of the COPRA the purported complaint is outside the scope  the compensation under Sec. 14 (1) (d) of COPRA 1986 the complainant failed to prove the loss or injury suffered by him due to the negligent of the opposite party.    The opposite party had stressed it is a flagrant abuse of the process of law and the complainant estopped in filing the present complaint is own act and contract.  Hence there is no locus standi u/s 26 of the COPRA.  The opposite party has a brought to the notice of the forum after homologation test is made on the aspect of quality safety and imitation norms. Opposite party-3 had carried out pre delivery inspection including road test and delivered the vehicle to the opposite party in a road worthy condition.   The opposite party further explains  the opposite party provides compulsory free inspection services at 1000 km. are one month 2^nd free inspection service are 6 month and 3^rd free inspect service at 12 month whichever comes first.  According the complainant  availed for 3 service from the opposite party and disputed or brought to the notice of the opposite party about the defects which pleads to loss and agony to the opposite party after completing 3 free service he also availed paid services as prescribed in the contract   the complainant had brought to the notice of the opposite party about the defects that he found in the vehicle after the lapse of 19 months from the date of purchase.    The mileage of the vehicle is satisfied by ARAI certification required u/s 115 of Central  Motor Vehicle Rules / Act.   The opposite party-3 had elicited the mileage of vehicle depends on several  facts driving habits hear change pattern usage of Air conditioner, Air pressure in the tyres wind speed, traffic conditions fuel quality, non adulterated standard fuel, maintenance of the vehicle,  road conditions  etc.  It is contended that the complainant has not brought any of his problem to the opposite party before the completion of services and the allegations about non functioning of indicator in the fuel gauge and the fuel gauge which is fixed in the said vehicle is digital indicator as soon as the blinking beings fuel has to be immediately filed.   The averments made by the complainant and the complaint are speculative in nature and hold no ground in the eyes of law.     The complainant misconceived the facts elicited in the version of the opposite party and the complaint is mere exaggeration which proves a malafide intention to make good of this forum.    The complainant had not proved the deficiency of service of the opposite party-3 and not established documentary evidence proving there is defect in the manufacturing aspect and prays this forum to dismiss the complaint with cost.

9.    Pursuant on the various aspect brought out by the complainant and the opposite parties it is judiciously and strictly verified and each and every point the complainant after the expiry of 19 months from the date of purchase he took three free maintenance services from the opposite parties and not raised any allegations or defects that the complainant had faced with regard to fuel consumption and the mileage the complainant took delivery of the vehicle from the opposite party-3 after pre delivery inspection and given a consent that everything is in order and after free service he had made paid services also, even at that time he has not raised the issue of mileage problem, it is dereliction on the part of the complainant which should have been brought to the notice of opposite party in time bound manner.    The complainant had asked to replace the engine and fuel gauge where he had not submitted the expert opinion from the experts to substantiate the manufacturing defect leads to replacement of engine which is not necessitated.  Hence we are not inclined to give direction to replace the engine but direct the opposite parties to replace the fuel gauge without charging any cost or labour charges for this replacement.  

10.    To refer to this type of allegation there was a National Consumer Disputes Redressal Commission, New Delhi Judgment on 2015 SCC OnLine NCDRC 3276 in the case of Dr.Sadanand Bhojraj Adyanthaya ..Vs.. Chairman, Maruti Susuki India Lt., & 4 Ors in the R.P.NO.1451 of 2015 and  Appeal No.105/2013 of the State Commission, Maharastra decided on September 7, 2015 it is held that  “ he depends on the factors including the driving habits and driving conditions and the placement of pamphlet / newspaper advertisement cannot be held responsible for the statement made in the pamphlet.   On this score the paper advertisement submitted to this forum stating the fuel consumption of 19 km per litter will not be sustainable.

11.    In a similar issue in the case of  National Consumer Disputes Redressal Commission, Em Pee Motors Ltd. vs Ramesh Kumar Bamal & Anr.  in petition No.3666-3667 of 2014 decided on on 16 January, 2015  the following view was taken. “ In our opinion if a manufacturer of a vehicle claims a particular mileage based upon the result of a test conducted by the 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 a fuel economy of the vehicle.”

  The mileage given by a vehicle is a result of a number of factors including No.1 the road on which the vehicle is driven 2) the traffic on the road at the time it is driven  3) the quality of the fuel used in the vehicle 4) the speed at which the vehicle is driven 5) the number of times brake is applied to stop the vehicle 6)  load carried in the vehicle 7) air pressure in the tyres/tubes  8) condition of the tyres and 9) the overall condition of the vehicle, etc.   Therefore a vehicle which gives a particular mileage under standard test condition will  never be able to deliver the same mileage which it is driven on a city road and that too, under conditions different from the conditions under which it was tested given.   

12.     The driving habits and driving conditions varies from the person to person at the outset we are of the considered view that the dispute raised by the complainant to the opposite party after the lapse of 19 months which could have been rectified at the initial stage itself i.e the complainant when he had made the three free services.   In order to substantiate the defects in the product purchased he should have approached the opposite party well in time which he had not done so.    After the usage of the vehicle after 19 months it is not fair on the part of the complainant to raise the issue when he had not substantiate the complaint with documentary evidence to prove the defects.  The complaint itself the frivolous and vexatious complaint are argued by the learned counsel before this forum we have no reservation to dispute the reasons furnished in the National Commission Cases already highlighted and the present case also arise out of the driving habits and usage of vehicle  the nine reasons furnish in the forgoing para reveals it is not acceptable the fuel consumption deficiency has not been established.   Considering the facts and circumstances we are of the opinion that the opposite parties are

directed to replace the fuel gauge (not to collect cost of the fuel gauge and labour charges of fixing the same)  and also we feel he had suffered mental agony for which the amount claimed by the complainant for mental agony seems to be on the higher side we direct the opposite parties to pay  a sum of Rs.10,000/- being a compensation and also to pay Rs.5,000/- as litigation charges to the complainant  and accordingly the points 1 & 2 are answered.

In the result the complaint is partly allowed.  The opposite party-3 is directed to  replace the fuel gauge (not to collect cost of the fuel gauge and labour charges of fixing the same) within one month from the date of this order  and also to pay  a sum of Rs.10,000/- (Rupees ten thousand only)  being a compensation and also to pay a sum of Rs.5,000/- (Rupees five thousand only)  as litigation charges to the complainant  within six weeks from the date of this order failing which the compensation amount Rs.10000/- will carry interest at the rate of 9% p.a. from the date of this order  to till the date of payment.  This compliant against the 1^st and 2^nd opposite parties are dismissed.  

               Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  1^st  day  of  June  2016.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1-         -       - Copy of Advertisement Brochure.

Ex.A2- 11.3.2010  - Copy of order booking form No.5836.

 

Ex.A3- 11.3.2010  - Copy of Commitment Checklist.

 

Ex.A4- 21.5.2010  - Copy of Ex-warranty receipt.

 

Ex.A5- 22.5.2010  - Copy of Bank Receipt.

 

Ex.A6- 23.3.2010  - Copy of extended warranty conversion form.

 

Ex.A7- 19.3.2010  - Copy of tax/vehicle & Charges invoice.

 

Ex.A8- 5.9.2011    - Copy of Perform invoice.

 

Ex.A9- 23.2.2010  - Copy of Certificate Insurance.

 

Ex.A10- 22.3.2010         - Copy of Certificate of Registration.

 

Ex.A11- 23.3.2010 – Copy of Delivery Challan.

 

Ex.A12- 4.8.2011  - Copy of Mileage Testing job card.

 

Ex.A13- 4.8.2011  - Copy of Complaint by the complainant

                             with acknowledgment.

 

Ex.A14- 20.8.2011         - Copy of reply by 3^rd opposite party.

 

Ex.A15- 24.10.2011- Copy of notice by the complainant counsel.

 

Ex.A16- 15.11.2011- Copy of Reply by the 3^rd opposite party counsel.

 

Ex.A17-       -       - Copy of owner’s Manual service booklet of fuel gauge page

                              No.5.2.

 

Opposite parties’ Exhibits:- 

 

Ex.B1-     -           -  Copy of warranty policy.

Ex.B2-     -           -  Copy of Certificate of extended warranty registration.

Ex.B3-     -           -  Copy of Dealership agreement.

Ex.B4- 20.4.2010    -  Copy of job card.

Ex.B5- 13.9.2010    -  Copy of job card.

Ex.B6- 15.3.2011    -  Copy of job card.

Ex.B7-    -             -  Copy of owner’s manual & service booklet.

Ex.B8- 20.8.2011     -  Copy of letter sent by opposite party to the complainant.

Ex.B9- 14k.6.2012   -  Copy of job slip & job card.

                                                             

 

MEMBER-I                        MEMBER-II                             PRESIDENT.