KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NOS.62/09 & 143/09
COMMON JUDGMENT DATED 21.10.2010
PRESENT
JUSTICE SHRI.K.R.UDAYABHANU -- PRESIDENT
SHRI.S.CHANDRAMOHAN NAIR -- MEMBER
APPEAL No.62/09
1. Hyundai Motor India Ltd.,
Through its authorized signatory
A-30. Mohan Co-operative
Industrial Area, Mathura Road,
New Delhi – 110044.
2. The Managing Director, -- APPELLANTS
Plot-1, Sipcot Industrial Park,
Irrungattakottai, NHO,
Sriperembudur Taluk,
Kanchipuram Dist.
Tamil Nadu 602 105.
(By Adv.Sukumar)
Vs.
1. Smt.Lathi.S
W/0 C.H.Chandrabhanu,
Chettichuparambil, CMC-22
Cherthala P.O, Alappuzha Dist.
2. MGF Motors Pvt.Ltd -- RESPONDENTS
Matsyapuri P.O, Willington Island,
Kochi-29.
3. MGF Motors Pvt.Ltd,
Door No.VIII/481
Punnapra, Alappuzha.
(R1 by Adv.P.S.Jyothishkummar ,
R2 & 3 by Adv..S.Manish)
APPEAL No.143/09
1. MGF Motors Pvt.Ltd -- APPELLANTS
Matsyapuri P.O, Willington Island,
Kochi-29.
2. MGF Motors Pvt.Ltd,
Door No.VIII/481
Punnapra, Alappuzha.
(By Adv.Mangalathara)
vs.
1. Smt.Lathi.S
W/0 C.H.Chandrabhanu,
Chettichuparambil, CMC-22
Cherthala P.O, Alappuzha Dist. -- RESPONDENTS
2. Hyundai Motor India Ltd.,
New Delhi – 44
Reptd. by its Managing Director.
(R1 by Adv.P.S.Jyothishkumar)
COMMON JUDGMENT
SRI.S.CHANDRAMOHAN NAIR,MEMBER
The first opposite party in CC.120/05 of CDRF, Alappuzha is the appellant in Appeal 62/09 and the second and third opposite parties are the appellants in Appeal 143/09 . Both appeals are preferred against the order dated 30.6.08 directing the opposite parties to take back the vehicle KL-4/N-1048 and to replace a new vehicle of same model with compensation of Rs.10,000/- and cost of Rs.1,000/- within one month from the date of receipt of copy of the order.
2. For a fair disposal of both appeals, it is desirable to have a re-capitulation of the facts of the case in brief as here under:
3. The complainant had purchased a Santro Xing vehicle from the third opposite party with the financial assistance of HDFC Bank and got it delivered through the second opposite party on 2.7.03. It is the case of the complainant that the opposite parties, by advertisement in the newspapers, had offered a mileage of 20 k.m. per litre and that after the purchase of the vehicle, it was found that the vehicle was giving only a mileage of 10 – 12 k.m. per litre. The complainant has alleged that the vehicle had manufacturing defect and that was the reason why the vehicle was not getting the assured mileage. Alleging manufacturing defect and deficiency in service, the complaint was filed praying for directions to the opposite parties either to rectify the defect of mileage of the purchased vehicle or to replace the same with a new motor car with the offered mileage of 20 k.m per litre or to return the price of the vehicle with compensation of Rs.15,000/- and cost of the proceedings.
4. The first opposite party filed version stating that the complaint was filed for getting publicity to the complainant and that they had never offered the mileage as alleged by the complainant. It was also submitted that fuel efficiency of the vehicles depend upon various factors and that the vehicle was delivered after pre delivery inspection and that subsequent to the purchase of the vehicle it had met with an accident. Further contention of the first opposite party was that the petition was barred by limitation.
5. The second and third opposite parties in their joint version submitted that the advertisement by the first opposite party was based on detailed study conducted by independent surveyors and that the advertisement was made for Santro Zip Plus and not for Santro Xing. They also prayed for the dismissal of the complaint on the ground that there was no manufacturing defect to the vehicle.
6. The evidence consisted of the oral testimony of the complainant’s husband as PW1 and Exts.A1 to A13. On the side of the opposite parties Senior Manager of the second opposite party was examined as RW1 and Exts.B1 and B2 series were marked.
7. The learned counsels for the appellants in both the appeals argued on the same point that the Forum below had failed in appreciating the real facts and circumstances of the case in its perspective. It is their very case that the forum had gone wrong in directing the opposite parties to replace the vehicle with a new one and pay compensation of Rs.10,000/- and costs in the circumstance that the complainant had failed to prove his case by adducing sufficient evidence to show that the vehicle had manufacturing defect and that it did not get the alleged mileage. It is also argued by them that it is the duty of the complainant to prove his case, when it is alleged that the opposite parties assured him that the vehicle would get 20 k.m. per litre and that it was attracted by the said assurance that he purchased the vehicle. The learned counsels invited our attention to the fact that the vehicle met with a major accident and that though the photo copies of the repair details were furnished, the Forum below was not amenable to accept those documents on the mere ground that they were only photocopies. It is also argued by them that the appeals are to be allowed and the complaint dismissed with costs to the opposite parties.
8. On the other hand, the learned counsel for the respondent/complainant supported the findings and conclusions of the forum below and submitted that the forum below had passed the order after appreciating the entire evidence, especially, the advertisement in the News Paper, the repair orders and also the ‘outlook’ Magazine June 2003 produced by the complainant. He has submitted before us that though the opposite party had ordered for a mileage test, the opposite party was negligent and recalcitrant in not conducting the same and producing the result either to the complainant or before the forum. It is also argued by him that the burden of proof was shifted to the opposite parties in the circumstances of Exts.A10, A11 and A12, where the opposite parties had offered mileage of 24.3 k.ms per litre on high ways and 16.1 k.m in city areas for the Santro Xing vehicle itself, and when they have offered such mileage, it was the duty of the opposite parties to prove the said mileage. Inviting our attention to Ext.A5 the learned counsel submitted before us that in Ext.A5, the second opposite party had ordered for a mileage test to one of its employees named Peter and though such a direction was there no test was conducted and from the very fact that the opposite party withdraw from conducting such a test, it was evident that the vehicle had no such mileage as assured by the opposite parties. In short, the learned counsel prayed for dismissing the appeals with compensatory costs.
9. On hearing the learned counsels for the appellants and the respondent and also on perusing the records, we find that it is the admitted case of all the parties the complainant had purchased a Santro Xing vehicle from the third opposite party through the second opposite party on 2.7.03 and the vehicle was manufactured by the first opposite party. The complainant’s case is that she is not getting the offered mileage of 20 k.m per litre and we note that it is the main allegation against the opposite parties. The complainant would say that the said mileage was not obtained because of the defect of the vehicle and the complaint is for replacement of the vehicle or for refund of the value with compensation and costs. But, the opposite parties contend that they did not give such assurance to the complainant and that the vehicle had no defect and in such a situation the forum was not just and correct in ordering replacement of the vehicle and payment of compensation. On an appreciation of the entire facts and circumstances, we also find that the main question to be considered by us is whether there was any unfair trade practice committed by the opposite parties and whether the forum’s order to replace the vehicle with compensation can be justified. On a perusal of Exts.A10, 11 and 12, we find that the opposite parties had given advertisement for their vehicle assuring that the vehicle would get mileage of 24.3 km on high ways and 16.1 km. per liter in Cities. In the version, the opposite parties had submitted that it was not for Santro Xing Car that they offered the said mileage and it was for the Santro Zip Plus Car. We are not able to understand how the opposite parties could submit such a proposition before the forum when we also find that in Ext.10 and 11, it is for Santro Xing Car that they have given the said assurances. It is also found that the second opposite party had ordered for a mileage test as per Ext.A5. But, it is noted that no such test was seen conducted and the opposite parties had kept silent about the instruction given by them to their employee for conducting mileage test of the car. However, the Forum below had come to the conclusion that the vehicle had manufacturing defect. The complainant has not taken out a commission to prove that the vehicle had manufacturing defect. It is the settled position that refund of price of the vehicle can be ordered only in proven cases of manufacturing defects. In the instant case, we do not find any material to show that there was any manufacturing defect to the vehicle as alleged by the complainant. But, it is true that the opposite parties had given certain advertisement regarding the mileage and if such assured mileage was there for the vehicle they could have conducted a mileage test and convince the complainant regarding the mileage they offered. However, the complainant could also take steps to prove the low mileage and it is seen that the complainant has not taken any such steps. In the facts and circumstances of this case we find that though the complainant could not prove manufacturing defect, the opposite parties had made advertisement regarding the mileage and they had also ordered for a mileage test which was not conducted. We are of the strong opinion that the opposite parties had committed deficiency in service and unfair trade practice for which the complainant has to be compensated. We are also of the opinion that the direction of the forum below to replace the vehicle cannot be sustained. However the forum has awarded compensation of Rs.10,000/-. We feel that in the absence of a direction to replace the vehicle the compensation has to be enhanced. We enhance the same to Rs.25,000/- to be paid by the opposite parties to the complainant within one month from the date of receipt of this order, failing which the same shall carry interest at 12% per annum from the date of complaint till the date of payment. The cost of Rs.1,000/- ordered by the forum below is sustained.
In the result, both appeals are allowed in part. Thereby, the appellants in both appeals are jointly and severely liable to pay Rs.25,000/- with cost of Rs.1,000/- to the complainant within one month from the date of receipt of this order, failing which they are liable to pay interest at the rate of 12% per annum from the date of complaint till the date of payment. As far as the present appeals are concerned, the parties are directed to bear their own costs.
S.CHANDRAMOHAN NAIR -- MEMBER
JUSTICE K.R.UDAYABHANU -- PRESIDENT
s/L
