Tamil Nadu

South Chennai

404/2008

M/S.Avant Grade Engineers and Consultants,Senior Manager - Complainant(s)

Versus

General Motors India Pvt,Ltd. Managing Director & another - Opp.Party(s)

R.Shankaran,Uma Shankaran

12 Jul 2017

ORDER

                                                                        Date of Filing :   30.05.2008

                                                                        Date of Order :   12.07.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

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

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. 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.404/2008

WEDNESDAY THIS  12^TH DAY OF JULY 2017

 

M/s. Avant Grade Engineers & Consultants,

Rep. by its Senior Manager,

Mr.S.Sivakumar,

68-A Porur – Kundrathur High Road,

Porur, Chennai 600 116.                                     .. Complainant

 

                                       ..Vs..

 

1.  General Motors India Private Limited,

Rep. by its Managing Director,

Chandrapura Industrial Estate,

Hatol, Dist. Panchmahals,

Gujarat, India.

 

2. M/s. MPL Automobiles Agency Pvt. Ltd.,

Rep. by its Managing Director,

48/7, Arcot Road,

Saligramam,

Chennai 600 093.

 

3. M/s. Sundaram Motors,

Rep. by its General Manager,

180, Anna Salai,

Chennai 600 006.                                         .. opposite parties.

 

Counsel for Complainant           :    M/s. R.Sankaran & Uma Sankaran

Counsel for opposite party-1     :    M/s. V.Shnkar & B.L.Lavanya

Counsel for opposite party-2    :     Exparte.   

Counsel for opposite party-3     :    M/s. M.R.Raghavan  

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to replace the car which has not give the assured mileage and also to pay a sum of Rs.3,46,520 towards damages with cost of the complaint to the complainant.  

 1. The averment of the complaint in brief are as follows:

         The complainant submit that he had purchased one car namely Tavera B3 Silver 7 Seater from the 2^nd opposite party on 31.5.2006 for a sum of Rs.7,61,405/-.  The said car was purchased by paying the agreed consideration in full under the Finance Scheme availed by the complainant from his employer namely M/s. Avanti Grade and the same is used exclusively by the complainant.    The complainant further contended that he was turned by the grand advertisements given by the 1^st  and 2^nd  opposite party about the features of the car, as “Mileage King” and its mileage of 18-20 kilometers per liter of diesel in various leading Newspapers including Dhina Thandhi, The Hindu etc.    The opposite party had assured that the car would give 14 kms in City and 20.4 kms in Highway per liter.    This was not true for the reason that the car gave only 10 km in City and 12 km in Highway per liter.     Further the complainant state that the car never gave such mileage at any point of time, right from the date of purchase.    Hence the complainant had repeated demands and requests through phone and in person the opposite parties to rectify the mileage problem which is of no avail.   As such the act of the opposite parties clearly amounts gross deficiency in service & unfair trade practice and thereby caused harassment, mental agony  and hardship to the complainant.  Hence the complaint is filed.

2. The brief averments in the Written Version of  the 1^st opposite party  are as follows:

        The 1^st opposite party state that the opposite party denies all the allegations contained in the complaint except those which are specifically admitted herein and this opposite party puts the complainant to strict proof of each and every allegation.    The 1^st opposite party submit that the complainant also apparently failed to establish through averments and documents filed along with the complaint as to what compelled him to conclude that the opposite party has committed deficiency of service to invoke any legal remedy before this forum, for the reason the complainant has not attributed any commission, or omissions on the part of the opposite party to be called up before this forum, as their services by no figment of imagination gets attracted as per Clause 2 (1) (g) of the act and the 1^st opposite party with due respect state that the complainant is miles away from definition of the term consumer as set out under section 2 (1) (d) of the Consumer Protection Act.  

3.     Further the 1^st opposite party state that the impugned vehicle is well acclaimed widely accepted and a popular vehicle among its category fuel consumption in a vehicle depends upon various factors like driving style, traffic, idling, usage of AC, road conditions, maintenance, tire pressure, load, speed adopted, acceleration pattern, gears used, fuel quality, fuel quantity etc., which was meticulously explained to the complainant vide email dated September 10, 2007.    As regards the advertisements published in the English daily “The Hind” and Tamil Daily Dhina Thanthi the opposite party would like to state that no mutual agreement exist regarding any given figure of fuel consumption, parameters and standard, what exist is their statement of satisfactory fuel consumption.    The 1^st opposite party further submit that the entire prototype of the vehicle including its steering mechanism has statutory approval under Rule 126 of the Central Motor Vehicles Rules, 1989 as regards its quality and standard.  Under the said rule statutorily designated agencies such as Automotive Research Association of the India (ARAI) are required to undertake testing of the prototype of the vehicle before the said vehicle can be offered for sale in the market.   In fact under Rule 126 A of the Central Motor Vehicles Rules 1989 regular checks and tests are undertaking by the designated statutory agencies on the engine and components, engine, machinery etc. continue to confirm to the quality standards desired, expected and / or laid down.   As such, the mechanism present in the impugned vehicle has consistent statutory approval as regards its quality of standard and functioning.    Hence there is no deficiency in service on the part of the 1^st opposite party  and therefore this complaint is liable to be dismissed.

4.     Inspite of service of notice the 2^nd opposite party is called absent and set exparte.

5. The brief averments in the Written Version of  the 3^rd  opposite party  are as follows:

                The 3^rd opposite party denies various allegations and averments made by the complainant in its complaint excepting those that are expressly admitted herein.    The complainant is put to strict proof of the truth and relevancy of the disputed allegation and averments.    The 3^rd opposite party state that the complainant purchased a vehicle Chevrolet Tavera bearing No.TN 10 P 3348 from the 1^st opposite party through the 2^nd opposite party who was the dealer at that point of time on 1.6.2006.  The 2^nd opposite party closed its operations by March 2007.  Subsequently the complainant sent its vehicle to 3^rd opposite party by March 2007.   Subsequently the complainant sent its vehicle to 3^rd opposite party on 4.5.2007 for 15,000 kms service and brake down service on 6.6.2007.   The 3^rd opposite party also did service on 30.7.2007 (20,000 kms.) 3.10.2007 (25,000 kms.) and 1.1.2008 (30,000 kms.) and 21.5.2008 (35000 kms).  The mileage check was made on 7.3.2008 at 31,481 kms and 40,000 kms service was carried out on 3.10.2008.   On 8.9.2007 the complainant had sent  email complaining about the low mileage in the vehicle.   The complaint was regarding the fact that the vehicle did not give the mileage as advertised.  On 10.9.2007 the General Motors sent a reply in which various factors that effect fuel consumption of the vehicle was explained.    It is respectfully submitted that the complaint is not maintainable in law since the vehicle has been used only for commercial purpose.  Hence on that basis, the complaint may be dismissed at the threshold.    Further the 3^rd opposite party submit that in the advertisement it has been clearly mentioned that the optimum mileage and highway mileage separately and also mentioned that the conditions would apply.  As already explained, condition like driving style, traffic, total idling, use of A/c, road conditions, maintenance, tyre pressure, load, speed adopted, acceleration pattern, gears used, fuel quality would have direct impact on fuel consumption.   Even during the subsequent service at 40,000 kms, the issue of mileage was not raised.  Hence it is respectfully submitted that at no point of time, the complainant was mislead and the vehicle has been giving mileage as advertised.    The complainant also has not made out a case for replacement of car as demanded in para 15(1).  Other reliefs sought for in para15 are also not sustainable.   Hence there is no deficiency in service on the part of the 3^rd opposite party. 

6.     In order to prove the averments of the complaint, the complainant had filed proof affidavit as his evidence and documents Ex.A1 to Ex.A25 marked.  Proof affidavit of opposite parties  filed and Ex.B1 & Ex.B2 marked on the side of the 1^st & 3^rd opposite parties and also oral arguments let in.

 7.   The point for the consideration is:  

1. Whether this forum have jurisdiction to try the case ?

 

2. Whether the complainant is entitled to get a car which gives the assured mileage after replacement of the car as prayed for ?

 

3. Whether the complainant is entitled to a sum of Rs.3,46,520/-with cost of the complaint as prayed for ?

 

8. POINT No:-1

        The complainant and 3^rd opposite party has not turned up to advance any oral arguments after fling their respective written arguments.   Heard the opposite party-1 counsel also.   Perused the records.   The contention of the complainant is that he has purchased one Tavera B3 Silver 7 Seater car on 31.5. 2006 from the 2^nd opposite party for a cost of Rs.7,61,405/-.   The due finance also supplied by the employer M/s. Avanti Grade the car is exclusively used by the complainant which is the employee of the company.   But on a careful perusal of Ex.A1 it is seen that  the invoice issued to M/s. MPL Automobiles Agency Pvt. Ltd., which is a company.   As per Ex.A2 the Customer’s Name & Address M/s. Avant-Garde Engineers and Consultants (P) Ltd, 68-A, Porur, Kundrtur High Road, Porur, Chennai 116, which is a limited Company.   The contention of the opposite parties 1 & 3 is that this forum having no jurisdiction to entertain the case as per Sec. 2 (1) (m) is as follows:

        (m) “person” includes ,

          (i) a firm whether registered or not;

          (ii) a Hindu undivided Family;

          (iii) a Co-operative Society;

(iv) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not;

In this case admittedly the vehicle was purchased by a company namely (i.e.)  M/s. Avant Grade Engineers & Consultants (P) Ltd, Porur, Chennai 116 and it used by the company.   The allegation that the car purchased and given to its Senior Manager S. Sivakumar for his own purpose is not acceptable;  since the complainant miserably   failed to prove the said allegation by way of proper document.   The learned counsel for 1^st opposite party cited a decision reported in 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

 NEW DLEHI

First Appeal No.723 of 2006

General Motors India Pvt. Ltd.

..Vs..

G.S., Fertilizers (P) Ltd.,  & another

Held that

         

          We have heard learned counsel for both parties and have gone through the evidence on record.  We note that in his complaint before the State Commission the Respondent- Complainant had clearly stated that the vehicle was purchased for the use of its Managing Director.   We agree with Appellants contention that this clearly amounts to its purchase for a commercial purpose since the Managing Director of a Private limited company would obviously not use this vehicle for self-employment to earn his livelihood but for commercial purpose as a perk of his office.   Counsel for the Respondent-Complainant has sought to challenge this contention by pointing out that since the present case pertains to 1999 and the amendment referred to was made only in 2002, it was not applicable in the instant case.  We are unable to agree with this contention as well because the 2002 Amendment to the Act pertains to Section 2(1)(d)(ii) of the Act relating to hiring or availing of services for a consideration and not to Section 2(1)(d)(i) of the Act which relates to purchase of goods. 

         

          In fact, the interpretation of Section 2(1)(d)(i) of the Act relating inter alia to purchase of goods has been well settled by the Honble Supreme Court as far back as in 1995 in its judgment in Laxmi Engineering Works ..Vs.. P.S.G. Industrial Institute (1995 (3) SCC 583), wherein the Honble Apex Court has ruled as follows:

 

On this interpretation of the definition clause, persons buying goods either for resale or for use in large scale profit-making activity will not be consumers entitled to protection under the Act.

 

It is seems to us clear that the intention of Parliament as can be gathered from the definition section is to deny the benefits of the Act to persons purchasing goods either for purpose of resale or for the purpose of being used in profit-making activity engaged on a large scale.   It would thus follow that cases of purchase of goods for consumption or use in the manufacture of goods or commodities on a large scale with a view to make profit will all fall outside the scope of the definition.   It is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large-scale manufacturing or processing activity carried on for profit.   In order that exclusion clause should apply it is however necessary that there should be a close nexus between the transaction of purchase of goods and the large-scale activity carried on for earning profit.

 

10. Since the instant case pertains to the purchase of goods admittedly for commercial purposes since the vehicle was purchased by a private limited company for its Managing Director, this case is squarely covered by the above judgment of the Hon’ble Apex Court.  The State Commission erred in not taking note of this important fact while deciding the complaint.   Even otherwise, we note that the Respondent-Complainant has not been able to produce any evidence, including that of an expert to indicate that there was any manufacturing defect in the vehicle.  We also note that whenever there was any problem with the vehicle either because of normal wear and tear or following accidents, these were promptly attended to by the Appellants and there was no deficiency in service in this respect.

 

Considering  the facts and circumstances of the case, this Forum is of the considered view that this forum having no jurisdiction to try this case and point is answered accordingly.

9. POINTS:-  2  & 3

       Further the complainant pleaded and contended that the opposite parties gave grand advertisement about the features of the car as “Mileage King” and its mileage of 18 to 20 kilo meters per liter of diesel in various leading Newspapers including Dhina Thandhi, The Hindu etc.   Ex.A3 is such a copy of an advertisement is absolutely silent regarding the newspapers in which it was advertised.   Further the complainant pleaded and contended in the written arguments that the 1^st opposite party assured that the car would give 14 kms in city and 20.4 kms in Highway per liter.   But practically the said car gave only 10 km in city and 12 km in Highway per liter establish the false advertisement of the opposite parties which amounts to unfair trade practice.  The complainant further pleaded and contended  in the written arguments that the car never gave such assured mileage at any point of time from the date of purchase.   The complainant repeatedly contacted the 2^nd and 3^rd opposite party through phone and emails requesting to rectify the mileage problem.   The 1^st opposite party replied that the mileage would depend on various factors like driving style, road conditions, tyre pressure etc. in general manner which are totally irrelevant and inconsistent, which caused shock and disappointment to the complainant which amounts to deficiency in service.  Thereafter the complainant issued legal notice for which there is no proper reply given by the opposite parties.   Hence the complainant is constrained to file this case claiming a sum of Rs.3,46,520/- towards damages by way of average fuel consumption charges against the assured advertisement alternatively the complainant prayed for replacement of the car with cost.

10.   The learned counsel for the 1^st opposite party contended that the allegation of mileage alone is the question raised by the complainant no other defects in the vehicle never raised by the complainant establishes that the opposite parties sold a  very good conditioned defect-less vehicle to the complainant.    Further the complainant failed to establish the deficiency of service as per Sec. 2 (1) (g) of the Consumer Protection Act is as follows:

“deficiency” means any fault, imperfection, shortcoming or in-adequacy  in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

Establishes there is no cause of action for the case.   Further the learned counsel for the 1^st opposite party contended that the impugned vehicle is well acclaimed widely accepted and a popular vehicle among its category fuel consumption in a vehicle depends upon various factors like driving style, traffic, idling, usage of A/c, road conditions,  maintenance, tire pressure, load, speed adopted, acceleration pattern, gears used, fuel quality, fuel quantity etc.   The complainant has not taken any steps to prove such requirement and filed this case in a luxury manner and no expert opinion in this regard also taken by the complainant claiming imaginary compensation.   Further the learned counsel for the 1^st opposite party contended that the advertisement given in the English daily “The Hindu” and Tamil Daily Dina Thanthi have no mutual agreement existed either with regard to the complainant or with regard to the opposite parties.  The facts given in an advertisement are perfectly confirmed if the said conditions were duly complied the purchaser of the vehicle.   The learned counsel for the opposite parties cited a decision reported in

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

REVISION PETITION NO.3666-3667 OF 2014

Em Pee Motors Ltd.,

..Vs..Ramesh Kumar Bamal & another

 

Held that

6. A perusal of the information which the manufacturer of the vehicle Toyota Kirloskar Pvt. Ltd has published in public domain, declaring the fuel economy to be 17.75 kms per litre would show that the aforesaid mileage was stated to have been achieved under standard test conditions.   The disclaimer in the aforesaid published information reads as under:

 

1. The values declared above are the extract of the results that have been obtained in a mandatory emission test specified in Rule 115 of Central Motor Vehicle Rule 1989 under controlled conditions using a reference fuel at an agency authorized by Rule 126 of the said Rules.  The values obtained by users will differ from these values due to infinite variables such as driving habits, road and traffic conditions, fuel quality, maintenance practices, loading pattern, ambient conditions and usual engineering tolerances on components and so on.

 

7. In our opinion, if the manufacturer of a vehicle claims a particular mileage based upon the result of a test conducted by a 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 the fuel economy of the vehicle.  The very use of the work falsely in clause I of Section 2( r) (1) of the act clearly indicates that the representation which is impugned before a consumer forum should be false to the knowledge of the person by whom it is made.

 

If a person bonafidely  believes upon the report submitted by a third party such as ARAI and represents accordingly to the members of the public, it cannot be accused of having made a false representation.  As far as clause VII of the aforesaid provision is concerned that in our view may not be strictly applicable since the said clause applies only to a warranty or a guarantee given by the manufacturer/seller of the vehicle.  In any case, even if the mileage of a vehicle under ideal conditions is taken as a warranty or guarantee of the performance of the vehicle, it cannot be said that it was not based on adequate or proper test when the manufactures bases the said warranty or guarantee on the report taken from a third party such as ARAI which before submitting its report subjects the vehicle to test in terms of Rule 115 of the Central Motor Vehicle Rules.

8.  As regards the report given by the Punjab Engineering College, Chandigarh, a perusal of the report clearly shows that the vehicle was driven in the city, before the said report came to be given.   There is nothing in the report to even suggest that the vehicle was driven under the same controlled conditions under which it was tested by ARAI.  There is no information available to us as regards the comparative condition of the road on which the vehicle was driven by ARAI vis—vis the condition on which the vehicle was driven by PEC.  We have no information (i) as regards comparative qualification, experience and driving habits of the persons who drove the vehicle, (ii) as regards the traffic conditions which were available at the time the vehicle was driven at Chandigarh vis—vis the traffic conditions under which the vehicle was driven by ARAI, (iii) as regards the quality of the fuel which was used by PEC Chandigarh vis-vis the quality of the fuel used by ARAI and (iv) as regards the load which the vehicle carried when it was driven by the experts of the Punjab Engineering College, Chandigarh.  More importantly, the vehicle came to be driven by the experts of Punjab Engineering College sometime in July 2013 whereas it was purchased by the complainant in March 2011.  Thus, the vehicle had already been used for about two and half years before it was tested by the experts of Punjab Engineering College, Chandigarh.   It can hardly be dispute that with the passage of time, and due to use of the vehicle, the vehicle may not given the same mileage as is given when it is absolutely new.  The mileage given by a vehicle is the result of a number of factors including (a) the road on which the vehicle is driven (b) the traffic on the road at the time it is driven.

 

(c ) the quality of the fuel used in the vehicle, (d) the speed at which the vehicle is driven (e) the number of times brake is applied to stop the vehicle, (f) load carried in the vehicle, (g) air pressure in the tyres/tubes, (h) condition of the tyres and (i) the overall condition of the vehicle etc.   Therefore a vehicle which gives a particular mileage under standard test conditions will never be able to deliver the same mileage when it is driven on a city road and that too, under conditions different from the conditions under which it was test driven.

 

9) It is contended  by the learned counsel for the complainant that the representation made by the manufacturer of the vehicle as regards mileage delivered by the vehicle amounts to unfair trade practice within the meaning of Section 2 (r ) of the Consumer Protection Act.  The aforesaid provision to the extent it is relevant reads as under:

 

(r )    “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 any of the following practices, namely;

 

1. the practice of making any statement, whether orally or in writing or by visible representation which,

1. falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;  

Considering the facts and circumstances of the case this Forum is of the considered view that the complainant is not entitled for any relief as prayed for in the complaint and the points 2 & 3 are answered accordingly. 

             In the result this complaint is dismissed.  No cost.

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  12^th  day  of  July 2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

Ex.A1-  31.5.2006 - Copy of Invoice of 2^nd opposite party.

Ex.A2- 31.5.2006  - Copy of receipt for initial payment.

Ex.A3-         -       - Copy of Advertisement in leading Newspaper.

Ex.A4- 8.9.2007    - Copy of email sent by complainant to 1^st opposite party.

Ex.A5- 10.9.2007  - Copy of reply email by 1^st opposite party.

Ex.A6- 11.9.2007  - Copy of email sent by 3^rd opposite party to complainant.

Ex.A7- 15.9.2007  - Copy of email sent by complainant to 1^st opposite party.

Ex.A8- 9.6.2006    - Copy of letter by 2^nd opposite party to complainant.

Ex.A9- 7.9.2006    - Copy of invoice by 2^nd opposite party.

Ex.A10- 7.9.2006  - Copy of repair order by 2^nd opposite party to complainant.

Ex.A11- 24.6.2006         - Copy of invoice by 2^nd opposite party.

Ex.A12- 27.12.2006- Copy of repair order by 2^nd opposite party to complainant.

Ex.A13- 28.12.2006- Copy of invoice by 2^nd opposite party.

Ex.A14- 29.12.2006- Copy of receipt by 2^nd opposite party to complainant.

Ex.A15- 7.5.2007  - Copy of invoice & receipt by 3^rd opposite party.

Ex.A16- 6.6.2007  - Copy of receipt by 3^rd opposite party.

Ex.A17- 31.7.2007         - Copy of invoice by 3^rd opposite party to complainant.

Ex.A18- 2.10.2007         - Copy of job card by 3^rd opposite party to complainant.

Ex.A19- 5.10.2007         - Copy of Invoice by 3^rd opposite party.

Ex.A20- 17.10.2007- Copy of letter by 1^st opposite party to complainant.

Ex.A21- 7.3.2008  - Copy of Proforma invoice & receipt by 2^nd opposite party.

Ex.A22- 7.3.2008  - Copy of Proforma Job card by 3^rd opposite party.

Ex.A23- 22.3.2008         - Copy of email sent by complainant to 3^rd opposite party.

Ex.A24- 6.2.2008  - Copy of legal notice by complainant’s counsel.

Ex.A25- 17.6.2008         - Copy of Authorization letter.

Opposite parties’ side document: -   

Ex.B1-  4.5.2007 &

            3.10.2008 -  Copy of comprehensive job sheet of the impugned vehicle.

 

Ex.B2- 7.3.2008    - Copy of fuel mileage test.

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.