KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.498/2018

JUDGEMENT DATED: 23.05.2022

(Against the Order in C.C.No.11/2014 of CDRF, Pathanamthitta)

PRESENT:

PETITIONER/APPELLANT:

(by Advs. S. Reghukumar & Threya J. Pillai)

Vs

RESPONDENTS:

JUDGEMENT

SRI. T.S.P. MOOSATH : JUDICIAL MEMBER

          The 1^st opposite party in C.C.No.11/2014 of the Consumer Disputes Redressal Forum, Pathanamthitta (in short the District Forum) has filed this appeal against the order passed by the District Forum dated 26.06.2018 by which they along with the 2^nd opposite party are directed to refund an amount of Rs.4,94,977/-, the price of the car, Rs.20,000/- as compensation and Rs.5,000/- as costs.

          2.       The averments contained in the complaint are as follows:  The complainant purchased a Chevrolet Beat car on 04.04.2012 for an amount of Rs.4,94,977/- from the 2^nd opposite party, the authorized dealer and the service centre of the 1^st opposite party, the manufacturer of the car.  The complainant had promptly done the periodical services through the 2^nd opposite party as per the owner’s manual.  At the time of the purchase of the car the opposite parties offered a mileage of 25kms/litre of diesel.  Initially, the complainant got the mileage of 22kms/litre.  But after the second service the mileage decreased to 12kms/litre.  The matter was informed to the 2^nd opposite party.  But they have not done anything for increasing the mileage and persuaded the complainant for the 3^rd service in the manual of March 2013.  But after the third service the complainant got only mileage of 16.7kms/litre.  The complainant again informed the 2^nd opposite party about the matter but they have not done anything to increase the mileage of the vehicle.  The complaint of low mileage is due to the inherent manufacturing defect of the car.  The act of the opposite parties is an unfair trade practice and there is deficiency in service on their part which caused financial loss and mental agony to the complainant.  The opposite parties are liable to compensate the complainant for the same.  The prayer of the complainant is to direct the opposite parties to depute an expert mechanic to check the vehicle and rectify the complaints of his car regarding the mileage free of costs with compensation of Rs.35,000/- and costs to her.

          3.       The 1^st opposite party filed version raising the following contentions.  The allegations of the complainant that there was manufacturing defect to the vehicle is false.  On the basis of the complaint of the complainant regarding low mileage a joint test drive was conducted by the 2^nd opposite party on 12.02.2013 in the presence of the complainant and during that time the vehicle had a mileage of 23kms/litre.  The mileage of the vehicle depends on various factors.  The mileage offered is based on the test drive under standard conditions as prescribed under Rule 115 of the Central Motor Vehicles Rules, 1989.  Since the date of purchase of the vehicle the complainant had been pyling the vehicle without any complaint including mileage.  The car purchased by the complainant is having no manufacturing defect.  There is no deficiency in service or unfair trade practice on the part of the opposite parties.  The complainant is not entitled to get any compensation from the opposite parties.

          4.       The 2^nd opposite party filed version raising the following contentions.  It is true that the complainant purchased the car from the 2^nd opposite party.  Fuel efficiency depends on the various factors.  The 2^nd opposite party did not offer any mileage to the complainant’s vehicle.  24kms/litre is offered on the basis of the certificate issued by SIAM, a Government approved agency.  The 2^nd opposite party has not noticed any specific defect and the complainant has not raised any specific defect to the vehicle, to the 2^nd opposite party.  There is no manufacturing defect to the car.  There is no unfair trade practice or deficiency in service on the part of the 2^nd opposite party.  The complainant is not entitled to get any relief against the 2^nd opposite party. 

          5.       On the side of the complainant PW1 (husband of the complainant) was examined and exhibits A1 to A4 were marked on her side.  On the side of the opposite parties DW1 and DW2 were examined and exhibits B1 to B4 were marked on their side.

          6.       After considering the evidence adduced by the parties and hearing both sides, the District Forum disposed of the complaint by the order dated 17.01.2014 directing the 2^nd opposite party to do the next service properly particularly for ensuring high mileage of not less than 20.5kms/litre.  Against that order the complainant had preferred appeal before this Commission as A 537/2015 alleging that even after the service the car was not having the mileage promised by the opposite parties.  By the order dated 29.03.2017, this Commission set aside the order of the District Forum and the matter was remanded to the District Forum to conduct a mileage test by the Regional Transport Officer, Pathanamthitta and it was held that if it was found that the vehicle was not getting mileage as promised by the opposite parties of 25.44kms/litre, the opposite parties were bound to refund the price of the vehicle to the complainant.  After the remand the Regional Transport Officer, Pathanamthitta conducted mileage test of the vehicle and filed report which was marked as Exhibit X1.  The 1^st opposite party filed objection to the Exhibit X1 report.  After considering Exhibit X1 report, the objections of the 1^st opposite party and the other evidence the District Forum passed the impugned order.

          7.       Aggrieved by the order passed by the District Forum the 1^st opposite party has filed the present appeal.  Even though notice was served on the 2^nd respondent they did not appear.  The 1^st respondent was represented by her husband, her authorised representative.

          8.       Heard the counsel for the appellant and the representative of the 1^st respondent.  Perused the records.

          9.       By the order dated 29.03.2017 in A 537/2015 this Commission set aside the order of the District Forum and the matter was remanded to the District Forum for the conduct of a mileage test of the vehicle by the Regional Transport Officer, Pathanamthitta.  It was held that if it was found that the vehicle was not getting mileage as promised by the opposite parties, of 25.44kms/litre of diesel the opposite parties (appellant and R2) were bound to refund the price of the vehicle to the complainant/1^st respondent.  There is no dispute to the fact that after the remand of the case the Regional Transport Officer, Pathanamthitta conducted mileage test and filed report which was marked as Exhibit X1.  In that report it is stated by the Regional Transport Commissioner, Pathanamthitta that he had conducted the inspection of the vehicle at the premises of the workshop of the 2^nd opposite party at Pathanamthitta in the presence of both the parties.  It is mentioned by the Commissioner that he has conducted all the necessary tests. The auxiliary mileage testing unit was provided by the 2^nd opposite party.  It was reported by the Commissioner that he had conducted Highway Fuel Mileage Test and City Fuel Mileage Test.  In Highway Fuel Mileage Test a mileage of 19.6kms/litre and City Fuel Mileage Test a mileage of 15.5 was obtained for the vehicle.  The Commissioner concluded the report as follows: “From conducting the different mileage tests and by calculating the average fuel consumption in Indian road condition the fuel consumption of the tested vehicle is 17.55kms/litre.  No abrupt braking and stunt accelerations were done which further decreases the fuel consumption”.   The Commissioner categorically stated that the vehicle had only a mileage of 17.55kms/litre. In the order of this Commission dated 29.03.2017 in A 537/2015 it was held that if it was found that the vehicle was not getting mileage as promised by the opposite parties, 25.44kms/litre after conducting the mileage test by Regional Transport Officer, Pathanamthitta, the opposite parties were bound to refund the price of the vehicle.  The opposite parties (appellant and R2) had not challenged the said order of this Commission before the National Commission or any Higher Authorities.  So the contentions raised by the appellant that the vehicle test was conducted after more than five years from the date of purchase of the vehicle and due to the passage of time there is every possibility that the vehicle cannot give the mileage as it was achieving during the past and the mileage assured is under standard test condition and the same cannot be taken as an index for the vehicles that are driven in traffic congestion are not to be considered, in the light of the order passed by this Commission on 29.03.2017.  The scope of enquiry/consideration is limited to the extent of considering whether Exhibit X1 report can be accepted or not.  The 1^st opposite party (appellant) has filed objection to Exhibit X1 report.  The counsel for the appellant submitted that the mileage test was not conducted properly.  We have gone through Exhibit X1 report.  A detailed report was given by the Regional Trasport Officer, Pathanamthitta and in the order of the District Forum the report is elaborately discussed.  As observed by the District Forum, on a perusal of exhibit X1 report it can be seen that the Commissioner (Regional Transport Officer) has applied his reasonable mind and prudence to arrive at the finding on getting average mileage of the vehicle.  He had stated the difference of the road condition in the city and the highway.  On a perusal of Exhibit X1 report it can be seen that the Commissioner (Regional Transport Officer) has used all available modern equipments for conducting the mileage tests.  As observed by the District Forum there is no ambiguity in Exhibit X1 report and it has to be accepted.  Appellant failed to substantiate any specific reason or ground to reject the report filed by the Commissioner (Regional Transport Officer).  As rightly held by the District Forum Exhibit X1 report is to be accepted.  As per the exhibit X1 report the vehicle has only mileage of 17.55km/litre of diesel.  So, as per the finding of this Commission in the Order dated 29.03.2017 in A 537/2015, which was not challenged by the appellant or R2 before the National Commission or before any Higher Forum the opposite parties (appellant and R2) are jointly and severally liable to refund the price of the vehicle, Rs.4,94,977/- to the complainant/R1.  The counsel for the appellant submitted that the vehicle is still with the complainant/R1 and she had been using the vehicle for the last several years and the District Forum failed to take note of that fact.  He submitted that the District Forum directed the appellant and R2 to refund the price of the vehicle to R1/Complainant.  At the same time the vehicle is with the 1^st respondent/Complainant.  So, the 1^st respondent/complainant will get double benefit.  In the argument note filed by the 1^st respondent/complainant it is stated that the vehicle is with her and she has been using the vehicle.  It goes without saying that once the refund of the purchase price of the vehicle is ordered to be paid to the complainant/1^st respondent,  she is bound to return the vehicle to the opposite parties (appellant and R2) on getting that amount.  It can be seen that the compensation and costs ordered are just and reasonable.  Hence there is no reason to interfere with the compensation and costs ordered by the District Forum.  In the light of the above discussion we find that there is no reason/ground to interfere with the order passed by the District Forum and the appeal is liable to be dismissed.  However, it is made clear that the complainant/1^st respondent is bound to return the vehicle to the opposite parties (appellant and R2), on getting the price of the vehicle from them. 

          In the result, the appeal is dismissed.  The parties are directed to suffer their respective costs.

          The 1^st respondent/complainant is permitted to obtain release of the amount of Rs.25,000/-(Rupees Twenty Five Thousand), the statutory deposit made by the appellant before this Commission, on proper application, to be adjusted/credited towards the amount due to her from the appellant. 

          The 1^st respondent/complainant is permitted to obtain release of the amount of Rs.1,00,000/-, deposited by the appellant before the District Forum, Pathanamthitta,  as per the direction of this Commission,  while granting stay, on filing proper application,  before the District Forum to be adjusted/credited towards the amount due to her from the appellant.

SL