COMPLAINT FILED ON: 13.05.2010

DISPOSED ON:14.07.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

DATED THIS THE 14^th JULY – 2011

       PRESENT:- SRI. B.S.REDDY                 PRESIDENT                        

                         SMT. M. YASHODHAMMA         MEMBER    

                         SRI. A. MUNIYAPPA                 MEMBER

O R D E R S

SRI. B.S.REDDY, PRESIDENT

The complainant filed this complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite Parties (herein after called as O.Ps) to pay an amount of Rs.75,000/- with interest at 18% p.a. on the allegation of unfair trade practice on the part of the OPs.

2.      The case of the complainant to be stated in brief is that:

          The complainant has purchased two wheeler, motorcycle namely “Bajaj Discover DTS-Si” bearing registration No.KA-04-HA-9276 on 19.08.2008 by paying a sum of Rs.45,673/- from OP2. The complainant prior to purchase of the vehicle approached OP2 to have a look at the products in his show room, OP2 recommended the complainant to purchase the motorcycle by promising high fuel efficiency of 87 Kilo meter per liter mileage and low maintenance cost of the vehicle. Besides the said promise, the sales coordinator of the OPs, newspaper advertisements and other media communications indicate high fuel efficiency of 87 kilo meter per liter, excellent condition and low maintenance cost of the vehicle. The complainant believed the promise of the OPs and purchased the vehicle. From the date of purchase, there is starting problem and the vehicle takes more than 10 minutes to start on every morning and due to the same the complainant approached the service center of the 2^nd OP to rectify the same and the same has not been met with till date and the vehicle continues to give lot of problem with regard to starting on each morning hours. The complainant left the vehicle for first service explaining the problems with regard to starting problem and also low mileage of 45 to 47 Km per liter. The reason assigned by the Service Manager for the said problems was due to “Tap-It’ and the Service Manager has told that the same was fixed to the vehicle and the vehicle will not give any starting problem in future and assured the mileage of 87 km per liter as promised, at the time of selling the vehicle to the complainant. Even after the first service the vehicle had the starting problem and low mileage in spite of so called repairs attended by OP2, who is the authorized dealer of OP1. The complainant once again made complaint to the OP2 with regard to the low mileage and given the vehicle to rectify the said problem, the vehicle was returned by OP2 saying that the complaint has been attended by stating the problem was relating to the corroborator and made the necessary changes and asked the complainant to check the mileage once again. The complainant checked the mileage and the same was raised from 47 to 50 km per liter remained almost constant without giving the promised mileage of 87 km per liter and the starting problem of the vehicle still persists without any improvement. The complainant approached OP2 on 27.11.2009 and requested to rectify the said problems of the vehicle, OPs have not bothered to attend the same and instead they made the complainant to wait for more than one hour in the service station to reply him and stated that he complainant had not employed right measure and advised to check up the mileage through empty tank or from reserve to reserve either of these ways, which the complainant had find it to be in contradiction with their own advertisements and the complainant found by and large the mileage remained almost constant from 47 to 50 km per liter. The complainant approached the General Manager of OP2 and he also canvassed the same points (Tank empty or reserve to reserve), which was in turn supported by the General Manager asking the complainant to exhaust these remedy as well adhering to the same exhausted the aforesaid recommendation and the complainant recorded the mileage varying from 54 to 56 km per liter. OPs sold the said vehicle by practicing unfair trade practice of high mileage, by making false promise with regard to the high fuel efficiency of 87 km per liter, excellent efficiency and low maintenance cost but on the contrary the vehicle is found defective on all counts of mileage, efficiency and maintenance. OPs have not rectified the defects. OP2 alleged in the reply notice that the complainant has not left the vehicle for the 3^rd service, the same is false and baseless. In fact the complainant has left his vehicle for 3^rd service and obtained bill. The legal notice was issued on 29.01.2010 to the OPs calling upon them to pay sum of Rs.75,000/- which includes the cost of the vehicle and the damages for mental agony sustained by the complainant. OP1 has not replied for the same, OP2 has replied by giving untenable reasons. Hence the complaint.

3.   The OPs have filed Joint version contending that the vehicle in question was admittedly purchased on 19.08.2009 and after being extensively and continuously using it for more than 9 months, this complaint is filed on 13.05.2010. The OPs have given free warranty services for two years from the date of purchase. The complainant without exhausting the remedies available under the warranty, has rushed and filed this complaint. The warranty period of two years expired on 18.08.2010. It is denied that the OP2 recommended the complainant to purchase the vehicle in question by promising high fuel efficiency of 87 kilometers per liter mileage and low maintenance costs. OP2 has supplied the necessary information about the vehicle specification, along with the literature concerning the vehicle. The 87 kilometers was achieved as per the tested conditions by ARAI authorities and the same is also depicted in the sales promos of the vehicle in question as universally done by all the automobile manufacturers. OP2 has specified that on road mileage depends on various factors i.e., a quality of the fuel, quantity of the fuel, riding conditions, riding habits, traffic congestion conditions, road conditions, and finally air pollution affecting the supply of oxygen for efficient burning of the fuel within the engine. The newspaper advertisements and other media communications indicate the fuel efficiency as per the ARAI derivative values. The engine conditions and low maintenance costs are concerned, the vehicle is good and backed by the trusted service offered by the OPs, provided the fuel used in the engine would be as per recommended values. OP2 has also given appropriate manual for the know how of the ideal usage and maintenance of the vehicle along with the delivery of the vehicle. The manual no where states that the vehicle in question runs for 87 kilometers per liter. OP1 has given warranty against the manufacturing defects of the vehicle only and not on the fuel consumption levels or mileage. The averments of the complainant that the vehicle in question started to give starting problem and it took more than 10 minutes to start in the morning clearly goes to show that the complainant has not adhered to the user manual recommendations before the cold starting of the vehicle in question. Further all together the complainant had visited five times to OP2 for attending his vehicle to some complaint. The first time was on 26.09.2009, there was no complaint regarding the mileage or the starting problem. ON14.11.2009, the vehicle was again brought for attending the complaints about (a) starting problem, (b) for oil leakage, (c) fuel gauge not working and (d) low mileage. On verification, it was found that the vehicle was negligently handled due to which the water had entered into the tank, petrol tap and the carburetor. Further there was only 75 ml of petrol mixed with water found in the fuel tank. The customer was advised that the water and petrol mixture might have happened either due to the negligent washing, or due to the adulterated petrol. However, appropriate repairs and adjustments were made, as a kind gesture from the OPs and the vehicle was delivered after final verification on 16.11.2009. On 30.11.2009 the 2^nd free service was done to the vehicle in question and the same was delivered to the customer. Though it was requested to take a test ride to affirm the mileage, as per the company methods, the complainant stated that he would check the mileage as per his own method. There was no complaint for any starting trouble during this service. ON 04.12.2009, the vehicle was brought for general check up and replacing broken meter glass without any complaint as to mileage or starting problem. General checkup was done, meter glass replaced and the vehicle was delivered to the complainant without any charges. ON 13.03.2010, the vehicle was brought for check up which was also done. During the observation, it found that the clutch was burning abnormally, indicating excessive clutch usage while driving which could have affected the engine power, in turn reducing the mileage of the vehicle. In this way the OPs have taken appropriate steps to promptly attend any of the manufacturing defects, which was satisfactory done to the complainant as per the job cards particulars. The averments of the complainant that even after 1^st service, the vehicle continued to give low mileage and starting problem are false. The allegation that on 27.11.2009 the complainant approached OP2 requesting to rectify the said problems of the vehicle and OPs have not bothered to attend the same are all denied as false. As evident from the job card dt.27.11.2009 the rectification of the vehicle in question’s engine was done promptly to the satisfaction of the complainant. The mileage of the vehicle subject to be checked only through empty tanks or with reserve to reserve method which is the universally accepted way of checking the mileage. The complainant insisted to check the vehicle by his own indigenous methods, which are not scientifically or logically proves to be correct. It is denied that the vehicle in question is giving a mileage of 47 to 50 kilometers per liter. In fact in 30.11.2009 routine test of the vehicle in question’s mileage was done by the service engineers of the OPs at the service facility on MULTI UTILITY ROLLER TEST BENCH machine to identify the problem if any with 100 ml of ideal petrol. The vehicle in question is run for 10.94 kms denoting that on one liter of petrol, the vehicle would yield 109.4 kms on the above mentioned MULTI UTILITY ROLLER TEST BENCH. OPs are ready for a joint survey regarding the mileage test to establish their bonofides both on road conditions and on the above mentioned MULTI UTILITY ROLLER TEST BENCH machine. The vehicle in question will not give any starting problem if right petrol fuel is used along with appropriate cold engine starting procedures. It is denied that the starting problem of the vehicle still persists. The complainant has not submitted any expert report or opinion about the allegations made in the complaint. It is denied that OPs have sold the vehicle in question by practicing unfair trade practice. As per the job card dt.13.03.2010 though the vehicle in question was found to be used against the terms of the owner’s manual, the vehicle was satisfactorily serviced. About the third service averment in their reply notice by OPs due to the reason that the complainant had not provided the 3^rd service coupon, which he had promised to handover the same, as mentioned in the job card dt.13.03.2010. The complainant without any substantial or bonofide reasons, with an ill motive of making unlawful gain on non existent grounds, caused to issue a legal notice to which the OPs duly answered denying any liability. The complainant has not stated in complaint that he has experienced poor mileage even on long drives at uniform speeds, but only states vaguely that the vehicle in question is giving lesser mileage. The complainant is totally silent as to what mileage the vehicle in question is giving when driven within the Bangalore’s busy traffic and what mileage he was getting when the vehicle in question was driven on long drives. The complainant is silent as to how he has undergone a loss of Rs.75,000/- as losses, to make good of which is demanding as damages from the OPs that too with 18% interest. OPs are not responsible for the poor contaminated environment available in the Bangalore City, poor quality and quantity of petrol vended by the various petrol bunks, Bangalore’s traffic congestion, or the driving habits of the complainant. OP2 before launching the vehicle in question’s brand of vehicles in the open market, has got the same tested by an independent testing institute know as ARAI (Automotive Research Association of India, Pune) a Government of India Institute established under the Ministry of Industry. The ARAI, has under its standard test conditions recorded the mileage yield of the vehicle in question and the same is mentioned in its test report. Based on this report and certification the figures of mileage are quoted in the sales promotions.  OPs are not at fault, they have not committed any act of deficiency of service. Hence it is prayed to dismiss the complaint with exemplary costs.    

4.   In order to substantiate the complaint averments the complainant filed affidavit evidence and produced documents. The Manager of OP2 filed affidavit evidence on behalf of OP1 & 2 in support of the defense version and produced documents.

5.   OPs filed written arguments. Argument heard on both sides.

6. Points that arise for our consideration are:

       Point No.1:- Whether the complainant has proved           

                          Unfair trade practice on the part of the

                            OPs in selling the two wheelers?

Point No.2:- If so, whether the complainant is

                   entitled for the reliefs now claimed?

       Point No.3:- To what Order?

7.  We record our findings on the above points:

Point No.1:- In Negative.

Point No.2:-In Negative.

Point No.3:- As per final Order.

R E A S O N S

8.    At the out set, it is not at dispute that the complainant purchased two wheeler motor cycle “Bajaj Discover DTS-Si” bearing registration No.KA-04-HA-9276 on 19.08.2008 by paying a sum of Rs.45,673/-from OP2 the dealer. OP1 is the Manufacturer. The grievances of the complainant is before purchasing the said vehicle he approached OP2 to have a look at products of two wheelers in his Show Room at that time OP2 is stated to have recommended the complainant to purchase the said motorcycle by promising high fuel efficiency of 87 kilo meter per liter mileage and low maintenance cost of the vehicle. The complainant after going through the news advertisements and other media communications indicating high fuel efficiency of 87 kilo meter per liter, no maintenance cost of the vehicle purchased the same. After the purchase, the vehicle starting problem taking more than 10 minutes to start on every morning, the complainant approached OP2 to rectify the same but the same has not been met with till date and the vehicle still give lot of problem with regard to starting on each morning hours. The other grievances of the complainant are no mileage of 45 to 47 km per liter.  AT the first service of the vehicle, the Manager told the complainant that the vehicle will not give any starting problem and assured the mileage of 87 km per liter. Even after the first service, the vehicle continued the same mileage 45 to 47 km per liter. The vehicle was again taken to the OP2 with regard to the low mileage and OP2 returned the vehicle stating that he has attended the complaint stating that the problem was relating to the carborator and made the necessary changes and asked the complainant to check the mileage once again. The complainant checked the mileage and the same was raised from 47 to 50 kmpl. On 27.11.2009 again the complainant approached the OP2 to rectify the said problem of his vehicle but OPs not bother to attend the same and the stated that the complainant had not employed right measure and advised to check up the mileage of eh vehicle through empty tank or from reserve to reserve either of these ways, but the complainant claims that the same is in contradiction with their own advertisements and he found by and large the mileage remained almost constant from 47 to 50 kmpl. The General Manager of OP2 also canvassed the same points (Tank empty or reserve to reserve) and the complainant exhaust the said recommendation and recorded the mileage from 54 to 56 kmpl and not improved at all by not giving promised mileage of 87 km per liter. Thus the complainant claims that OPs sold the said vehicle by practicing unfair trade practice of high mileage, fuel efficiency of 80 km per liter by making a false promise besides the newspaper advertisements and other media communications with regard to high fuel efficiency of 87 km per liter, whereas the vehicle is found defective on all counts of mileage, efficiency and maintenance.

9.   believing the advertisement and propaganda and broacher issued by OPs with regard to the proposed construction of multistoried residential complex at Judicial Layout, Bangalore named as ‘Skyline Paradise’ booked flat bearing No.503 by paying a sum of Rs.4,32,254/- on 14.12.2005 and OPs issued allotment letter. Further, the complainant paid sum of Rs.30,000/- towards car parking area. Thus, the total amount paid by the complainant is Rs.4,62,254/-. The grievance of the complainant is that at the time of booking the flat, OPs assured to commence project in January-2006 and scheduled to complete within a period of 18 to 20 months from the date of commencement, but till now the project is not at commenced and there is no hope of OPs completing the project. Thus, the complainant is claiming refund of the amount with interest at 18% p.a. In the communication sent by OPs vide E-mails dt.24.04.2008, it is stated that OPs were putting their best efforts in obtaining speedy approval and sanctions for the project and assured that in due course the approval and sanctioned would be received and they had committed to their undertaking and completing the project. It is also mentioned that the interested purchasers can retain the booking or seek refund of the principle amount with interest at 12% p.a. It may be noted that at that point of time, the complainant has not opted for seeking refund with a fond hope of OPs obtaining the necessary sanctions at the earliest and commencing the work of the project but when the complainant sought for the details regarding the approval and sanctions, the OPs failed to provide the same, then the complainant got issued notice dt.03.07.2008, for the same OPs replied stating that the building plan had been rejected by the BDA for want of access road. Later the complainant got issued another notice dt.16.02.2009 demanding to the refund the amount with interest at 10% p,a, The OPs failed to comply with the said demand, as such the complainant was compelled to approach this Forum seeking the relief’s stated above.

10. There is no merit in the contention of the OPs that the dispute is not a consumer dispute and complainant has to approach the Civil Court. The OPs have received the amount towards construction of the apartments and the said amount includes service charges also as such the complainant is a consumer as defined under the act and OPs are service providers. Further, the contention of the OPs that no assurance was given to the complainant at the time of booking with regard to commencement of the project, it was only a pre launch period during which the complainant knowing fully well that it takes time for commencement of the project and completing the same has booked the flat. In our view, though there is no document with regard to the time stipulated for commencement and completion of the project but normally when a person like complainant intends to own an apartment by paying substantial amount as an advance, in the ordinary course there would be time stipulation, without that the complainant would not have come forward to pay so much amount. Thus, we are unable to accept the contention that no time was stipulated for commencement and completion of the project. OPs without obtaining any plans for construction of the apartments made the complainant and others to part with huge amounts as advance. Even now OPs have not obtained the sanction plan for construction of the apartments. The other documents produced by OPs relates to no objection certificates from some other statutory authorities. The complainant cannot be made to wait indefinitely for commencement and completion of the project. When OPs were unable to get the plans sanctioned, it would have been fair enough on their part in refunding the amount with interest to the complainant. Even after issuing the notice, OPs have not complied the demand in refunding the amount. Though in the notice, interest at 10% p.a. was claimed but now complainant cannot be made to receive only 10% of interest. OPs could have refunded the amount soon after receipt of the notice with interest at 10% p.a. as claimed by the complainant. Now OPs cannot be permitted to say that the complainant is only entitled for 10% interest on the amount paid. Further, the defence of the OPs that as the booking is cancelled 25% of the amount is to be deducted as per the booking form condition No.11 cannot be accepted for the reason that the complainant is cancelling the booking on account of the default committed by the OPs in commencement of the work. Under these circumstances, we are of the view that the act of OPs neither in commencing the project and completing the same nor refunding the amount, amounts to deficiency in service. As the Hon’ble National Commission in similar matter against the same, OPs awarding of interest at 18% p.a. has been confirmed and the Hon’ble State Commission has confirmed the Orders of the District Forum with regard to the refund of the amount with interest at 18% p.a. and awarding compensation of Rs.2,00,000/-. The copies of the judgments referred above are already produced by the complainant. The complainant has not claimed any compensation in this complaint. Interest claimed at 18%.p.a. is just and reasonable as complainant has been deprived of the apartment and returns from the amount paid to the OPs. Total principle amount claimed Rs.4,62,254/- and interest at 18% p.a. on the said amounts is claimed from the respective date of payments till the date of complaint. Total amount claimed is Rs.7,99,310/-.Accordingly, we proceed to pass the following:               

                                      O R D E R

The complainant filed by the complaint is allowed.

The OPs are directed to pay an amount of Rs.7,99,310/- with costs of Rs.10,000/- and current and future interest at 18% p.a. on the amount of Rs.4,62,254/- from the date of complaint till the date of realization to the complainant.