Order-23.
Date-30/06/2016.
The instant case relates to an application for unfair trade practice and misleading advertisement and is filed u/s.12 of the C.P. Act, 1986.
The case of the complainant, in short, is that the complainant for his personal need and requirement of the members of his family purchased one Fiat Linea Car with AC in Petrol Car from OP1 being one of the authorized dealer of the OP2. OP1 is the seller of the motor car and oP2 is the manufacture of the car and OP3 is the service centre of OP1. It is also stated that although the car was purchased in the name of the company but it was completely for the personal use of the complainant and member of his family and to which the company directors have already clearly given their acknowledgement. The complainant on 16-05-2015 paid an amount of Rs.7,57,227/- as price of the car. On 16-03-2015 OP1 delivered the car to the complainant and issued necessary papers documents such as registration of the car, tax receipts, insurance certificate etc. etc.
The car of the complainant specifically moved within Kolkata and the complainant observed that the mileage of the car per litre fuel is not satisfactory. The complainant informed the matter to OP1 and OP1 directed the complainant to garage the car to the workshop of OP2. The mileage was found to be 9.2 per litre but OP3 did not issue any job sheet to such testing. The complainant has alleged that in the advertisement it was stated that the Car will provide 15 kmpl as mileage but in frequently aspect the mileage per litre is less than 9 kmpl and the same has duly been established by testing on road. The OPs have published misleading advertisement. The OPs sold such a car having inefficient to give mileage at the rate of15 kmpl as promised and the same may be due to internal problem, having inherent defect was in the car. It is alleged that OP sold defective car to the complainant and have committed unfair trade practice and adopted deficiency of service. Hence, this case.
OPs 1 and 3 have contested the case in filing written statement contending, inter alia, that the case is not maintainable in law. It is denied that the OPs committed unfair trade practice or adopted deficiency of service or OPs already intentionally failed and neglected to do the needful. It is also denied that the OPs are entitled to refund the amount of Rs.7,57,227/- along with interest at the rate of12 percent p.a. from the date of purchasing till the date of actual payment. It is denied that there is inherent problem or defect in the said car. It is denied that in Rajarhat Road Test was made and mileage was taken average of 9.2 kmpl. It is stated that the said car for the first time came to the workshop of the OPs on 4th May, 2015 with complaint of some other problems and no complaint of mileage. Again the said car came to the workshop of OPs on 07-05-2015 with a complaint of Central Lock not working and with no complaint of mileage. By a letter dated 26-05-2015 it was for the first time the complainant made complaint for mileage. It is stated that the said car was not brought in the workshop of OP3 for the purpose of mileage. This OP prayed for dismissal of the case.
OP2 also has contested the case by filing written version. OP2 submitted in filing written statement that the present complaint is not maintainable either as per law or on merit. It is submitted that the complainant is not a consumer of OP2 and vehicle is registered in the name of a company called East Wind Holiday Tour Pvt. Ltd. the OP2 also suspects that the same is plying as a taxi. It has covered about 4413 km. as per the service history available with the oP2 as on 25-08-2015. It is stated that the subject car is in absolute roadworthy condition and only manner and running jobs have been carried out which are required to be carried out due to regular continuous usage of the said car. The prayer of the complainant for replacement of the car or refund of the price is untenable and unsustainable. It is also stated that manufacturer cannot be ordered for replace the car because defects can be rectified or defective parts can be replaced under warranty. It is also submitted that the OP2 had provided the vehicle in perfect condition and, as such, is not liable to compensate the complainant for any amount. It is alleged that the oP2 cannot be held responsible for so called deficiency of service. It is submitted that there was no let down in the services provided by OP2 to the complainant. The complainant seems to be in the habit of gear change, sudden acceleration, sudden braking and unnecessary revering by the Engine. The complainant expects his vehicles to run like a FORMULA-I Racing Car. It is also submitted that there is any manufacturing defect of OP. OP has prayed for dismissal of the complaint.
Points for Decision
- Whether the OPs are guilty of misleading advertisement?
- Whether the OPs have committed deficiency of service or practised unfair trade upon the complainant?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
It is argued from the side of the OPs that the car is being used for commercial purpose and, as such, the case is hit or barred under C.P. Act. In our view there is no substance in the aforesaid contention because company is a legal entity and is entitled to file complaint. We also find that the car was purchased for the personal use of Rajib Banerjee being the complainant in this case and his family members. We have also seen the resolution of Board of Directors of East Wind Holiday Tours Pvt. Ltd. We find that the car is purchased for the use of the complainant being an official of the East Wind Holiday Tours Pvt. Ltd. Company and is not connected with commercial purpose of earning profit or any activity directly connected with earning profit. The car in question, as we find, is not used for hire but for the personal use of the officials. Hence, it cannot be said that the complainant’s company has not purchased the car for commercial purpose. We think that the case is very well maintainable under C.P. Act. We are also fortified with the decision of the Hon’ble National Consumer Disputes Redressal Commission in M/s. Controls & Switchgear vs. M/s. Dalmlerchrysler India Pvt. dated 17-11-2007.
The next question is whether the car in question is unable to render mileage at the rate of15 kmpl? It is alleged by the complainant that OP3 took the vehicle to Rajarhat where an open traffic free stretch of road test was done after the complainant filled the tank on auto basis there and the mileage was found as an average of 9.2 kmpl. and it is also alleged by the complainant that OP 3 did not issue any job sheet to such testing. The complainant also observed while moved within Kolkata Jurisdiction that the mileage of the car per litre of fuel is not satisfactory. It appears that publication of advertisement stated that the car would provide mileage at the rate of15 kmpl. but in factual aspect the mileage per litre is less than 9 kmpl or around 9 kmpl.
The solitary defect which is pointed out with regard to the vehicle in question is less mileage. We find that the complainant has alleged that OP3 did not issue any job sheet to testing of mileage. We think that the onus shifts on the shoulders of the OP to prove that the vehicle in question is giving the required mileage. We are afraid to find that no document or endeavour is made from the end of the OPs to discard the allegation regarding the less mileage. No document is forthcoming before the court from the side of OPs to controvert the allegation of the complainant regarding misleading advertisement. It is alleged from the side of the complainant that the sales representative/sales manager of the company induced the complainant to believe that new Fiat Linea will give an average of 15 kmpl in Kolkata city with AC and such sales manager also showed the company’s official website claiming the same. The fact, as it is alleged, can also be verified from the website of the company itself. OPs have not challenged such version of the complainant that they have assured on exhibiting company’s official website claiming an average of 15kmpl in Kolkata city with AC. We find that since the time of purchase the aforesaid vehicle has not been able to give the required mileage. It appears that the complainant purchased Fiat Linea (Petrol) solely on the representation of the company’s representative and advertisement on official website that the said vehicle would give mileage 15kmpl in city with AC. We also find that the vehicle was sent to the workshop of the OPs and the technical persons took the vehicle to Rajarhat being an open traffic free stretch road and the tank on auto basis was filled in. The vehicle was also driven for quite some time and the average mileage was 9.2 kmpl. We find that car is practically giving 40 percent less road average than that was declared by the company. We find that the OP failed to ensure the mileage of the vehicle was achieving the required mileage of 15kmpl in Kolkata city with AC.
We think that the OPs have published misleading advertisement and thereby, committed unfair trade practice. 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 misleading advertisement. It, however, appears that the complainant has been using the vehicle in question till today, it is not lying in the garage. So, considering the facts and circumstances of the case, particularly the fact that the complainant has been using the car till today, we are not inclined to award any compensation but the fact remains, that the complainant has been suffering a lot for less mileage. We think that he is inclined to get a favourable order.
Hence,
Ordered
That instant complaint be and the same is allowed in part on contest against the OPs 1 & 2 with a cost of Rs.10,000/- each.
OPs 1 and 2 are jointly and severally hereby directed to remove the defect of the vehicle in question, bearing registration no.WB 02 AG 6990 (Fiat Linea to achieve the required mileage as stated in the body of judgment) or in the alternative they shall refund the purchase price of the same i.e. Rs.6,61,334/- with deduction at the rate of5 percent on non-standard basis from the purchase price within a period of 30 days from the date of this order. In case of refund of the purchase price as stated earlier the complainant has to return back the car in question unto OP1 being the seller of the motor car.
Failure to comply with this order the complainant or either of the OPs will be entitled to file execution as mandated under C.P. Act and in that event the respective faulty party shall have to pay penal damage at the rate of500/- per diem to be deposited to this Forum till satisfaction of the order of this Forum.
We make no order against OP3.
