For Ford India Pvt. Ltd.           :         Ms.Meenakshi Devgan, Advocate

                                                          Mr. Parvez Rahman, Advocate

For Balasubramani                   :         Mr. P. Harold, Advocate

For Kairali Ford                       :         Ms. Swati Setia, Advocate

  ORDER

RP No. 35 of 2017

1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondents, as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 31.08.2016 of the State Consumer Disputes Redressal Commission Kerela (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 451 of 2015 in which order dated 30.05.2015 of  Kottayam District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum ) in Consumer Complaint (CC) no. 97  of 2013 was challenged, inter alia praying for setting aside the order dated 31.08.2016 of the State Commission.

2.       Heard the learned counsels for the Petitioner and Respondent No.1  and 3 ( Mr.Balasubramani and M/s Kairali Ford).  As per the complaint of the complainant, that he was promised a mileage of 32 km / litre but actually mileage was much less i.e. 17.46 km / litre, which is also the main allegation of the complainant.  It is the case of the complainant that a joint mileage test was conducted twice by respondent no.3 i.e. the dealer and the mileage on two occasions as per this test came to 21.6 km / litre and 17.4 km / litre.  In this regard, extract of relevant para of the order of the District Forum is reproduced below :

“The case of the complainant is that, he purchased a Ford Fiesta Classic Titanium Car bearing Reg. No. KL 5 D 8789 from the 2^nd opposite party believing the statements and advertisement of the 3^rd opposite party and verbal assurance of the 1^st opposite party. The complainant has not getting mileage of 32 km/liter as stated and assured by the opposite parties. The complainant alleged that the complaint was told by the 2^nd opposite party that the mileage would increase after the first service. But even after the first service, the mileage did not improve. So he approached the 2nd opposite party and conducted mileage tests on 22/12/2012 and 08/01/2013. The mileage was only 21.6 km/liter and 17.46 km/liter.

In support of his plea, the complainant filed a brochure put in by the opposite parties, which was marked as Ext.A2. We perused the documents on record, where the opposite parties claimed that the vehicle would give mileage of 32.38 km/liter of diesel. Exts.A9, and A 9(a) were the mileage tests conducted on 22/12/2012 and 08/01/2013. The test conducted by Kairali Ford on 22/12/2012 showed a mileage of 21.6 km/liter and the test conducted on 08/01/2013 showed a mileage of 17.45 km/liter. The mileage considerably reduced in the 2nd time.

On perusal of Ext.A2 brochure, we are of the opinion that, such an advertisement published by the opposite party is quite misleading. The complainant was tempted and attracted to purchase the car only because of the fairly low fuel consumption and more mileage. It amounts to unfair trade practice.

When the opposite parties claimed that the car can give mileage of 32.38 km/liter of diesel, they cannot just be absolved of their responsibility simply by putting an ‘asterisk' and then indicating such statements that "As tested by auto Car Cross Country Drive" in a microscopic small print at the bottom of the box is certainly deceptive. Rather in our view, any such advertisement should take account the conditions of the roads in the cities. Of course, the mileage depends upon various factors. The mileage is fixed according to the results obtained in the test chamber conditions. But it cannot be so low as reduced to 50% efficiency. There is no clear answer to the matters published in the brochure dished out by the opposite parties. It does not contain any warning that the mileage can be obtained at a particular speed and a particular road and under standard conditions. The complainant alleged that he was misled by the fake advertisement of the opposite parties. From Ext. A9(a), we can see that the mileage is only 17.45 km/liter in the test conducted on 08/01/2013, which is very low than the opposite parties promised. The relief he claimed is that low efficiency is to be enhanced and is to be rectified to obtain mileage at least near to what is advertised by the opposite parties or replace the vehicle in question with a new vehicle having mileage as assured by the opposite parties. If this could not be done, he should be refunded his money.

We are of the strong opinion that, the opposite parties had indulged in unfair trade practice, which is within the meaning of Clause (r) of Section 2 (1) of the Consumer Protection Act, whereby it has to be held that the opposite parties falsely represented that the car would give mileage of 32.38 km/liter of diesel. But there was no even half of the mileage as promised by the opposite parties in their brochure. There was no clear and intelligible warning as to and what circumstances the car would obtain such fuel efficiency in mileage. Since, the materials given in the brochure are false, misleading and cheating the public, it is highly necessary to restrain the opposite parties from making such a false and misleading claim that the Ford Fiesta car manufactured and marketed by the opposite party 2, would give mileage of 32.38 km/liter of diesel and attract and tempt the public to buy their product. Unless any such brochure or advertisement clearly stated in bold letters that the mileage is varied to a greater extent. The brochure should not be misleading and tempting the public. It should give the clear picture of the quality of the goods sold. Where the description of service is of one kind and their quality is of another, it will be unfair to the consumers. The consumer must get what he is told he is getting. Point No.1 is found in favour of the complainant.”

3.       Accordingly, the District Forum concluded that OPs have committed unfair trade practice .  However, District Forum did not allow the relief of refund of price of the car or replacement of the car with new one but awarded compensation of Rs.1.00 lakh and OP No.2 and 3 (Respondent No.3 and Petitioner herein respectively) were held jointly and severally liable.  This order of the District Forum was not challenged by the Petitioner herein & Respondent no.3 herein and hence has become final against them.  It is the complainant / respondent no.1 who went in appeal to the State Commission and State Commission as per its impugned order, directed OP No.2 and 3 ( Respondent no.3 and Petitioner  herein) to replace the said car with new one or to refund the price of car i.e. Rs.8,77,794/- with interest @ 12% p.a. from the date of the order of the Forum  i.e. 13.05.2015.

4.       As regards the deficiency in service / unfair trade practice, there are concurrent findings of both the Fora below against OP no.2 and 3. 

5.       It was admitted during the hearing that since the filing of the complaint during April 2013, vehicle in question is continuously being used by the complainant for more than 11 years now (having bought in 2012).  In view of this, keeping in view the facts and circumstances of the case, we are in agreement with the findings of both the Fora below with respect to deficiency in service / unfair trade practice on the part of OP No.2 and 3 as they misled the complainant by stating that the average mileage would be 32 km / litre, while it was only 21.6 km / litre and 17.45 km / litre as per the two joint mileage test conducted by OP No.3.  Even if we give a margin of some variation due to advertised mileage to be achieved in ideal running condition and vehicle being run in normal condition, we find that variation level is very wide, for which OP No.2 and 3 are responsible for misleading the complainant. However, in view of the fact that vehicle  has been used and is continuing to be used by the complainant for last more than 11 years by now, it is not fair to order replacement of the said car with new one or to refund the price of the car, as has been ordered by the State Commission.  Hence, order of the State Commission is hereby set aside.  We uphold the order of the District Forum as a reasonable compensation of Rs.1.00 lakh has been awarded by the District Forum.  This compensation of Rs.1.00 lakh will be paid to the complainant / respondent no.1 herein by OP No.2  and 3 jointly and severally ( Respondent no.3 and Petitioner herein).

6.       During the hearing, it was stated by the Petitioner that entire decretal amount awarded by the District Forum was deposited by them with the District Forum on 30.07.2015.  Accordingly, we hereby order that District Forum may release the entire decretal amount deposited with them, alongwith whatever interest has accrued on this amount, to the Complainant / Respondent no.1  herein ( Mr. Balasubramani).

7.       Revision Petition No. 35 of 2017 is disposed off accordingly.

RP No.  555 of 2020

1.       The present Revision Petition has been filed by the Petitioner against the order dated 31.08.2016 of the State Commission  Kerala in FA No. 451 of 2015. (same order of the State Commission as in RP No. 35  of 2017 above).  The Revision Petition has been filed with a   delay   of  1206 days.  An IA No. 4094 of 2020 dated 19.03.2020 has been filed seeking condonation of delay.       In the said IA, following reasons for delay / grounds for condonation have been mentioned :

1. Petitioner was under wrong impression that since the matter relate to the dispute on the mileage of the subject car, therefore, respondent no.3, manufacturer of the vehicle is required and has infact proceeded against the impugned order before this Commission as the Petitioner was under bonafide belief that Petitioner cannot be held liable for the brochure which belonged to Respondent no.3 and vehicle is also manufactured by respondent no.3 who has preferred a Revision Petition against the impugned order.

2. It is only after the stay of the operation of the impugned order on 19.04.2017, it came to the knowledge of the Petitioner that respondent no.1 is proceeding against the Petitioner.
3. Due to extensive background and records, it took some time to retrieve all information which consumed lot of time and effort.
4. The Petitioner is based in Kerala and therefore, it took some time to consult its counsel at Kerala and further time was taken in engaging and briefing a counsel in Delhi. It took time in collating information and in examining the documents by the Counsel in Delhi.

2.       This application is strongly objected by respondent no.1 herein / complainant.  We have carefully gone through the reasons for delay / grounds for condonation mentioned in IA No. 4094 of 2020 as well as those adduced during the  hearing and do not find the same convincing. 

3.       Although we are not convinced with the reasons for delay stated above, even if delay is condoned and case is taken up on merits, considering our findings in RP No. 35 of 2017 above, the Petitioner herein / OP No.2 before the District Forum was found guilty of unfair trade practice and has been held jointly and severally responsible.  During the hearing, it is contended by the Petitioner that he is only a dealer and hence responsibility of falsely advertising the mileage should rests with the manufacturer only.  However, it is admitted that dealer and manufacturer in the present case are working on principal to  principal basis and the dealer is  not acting as agent of the manufacturer.  Keeping in view the facts and circumstances of the case, we do not find merit in the contention of the Petitioner herein.  Accordingly, in the present case also, we uphold the order of the District Forum under which both OP No.2and 3 have been held jointly and severally responsible and set aside the order of the State Commission and dispose off this Revision Petition also on the level of RP No. 35 of 2017.