IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri.K.Gopalan : President Smt.K.P.Preethakumari : Member Smt.M.D.Jessy : Member Dated this, the 26th day of December 2009 C.C.No.201/04 Imthias.C.M., S/o N.Hamza Choyimadathil House : Complainant P.O.Melur, Theyatheru, Kannur-2. Vs. - The Manager,
Yamaha Motor India (P) Ltd., 19/6, Madura Road, Fareedabad, India – 121 006. : Opposite Parties - The Manager,
Pioneer Motors (Kannur) Pvt. Ltd., 20 A.B.Kannothumchal, Kannur-6. O R D E R Smt. Preethakumari, Member This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay Rs.43,800/- as the value of motor cycle with Rs.20,000/- as compensation. The case of the Complainant is that he had purchased a Yamaha motor cycle manufactured by 1st Opposite Party from 2nd Opposite Party on 07.10.03 for Rs.43,800/- attracted by the advertisement of Opposite Party that it would have got 85 KM/Ltr. But on the next day the Complainant felt that it will get only 30 to 45 KM/Ltr. So he contacted the 2nd Opposite Party and he represented that the mileage will be increased after servicing the vehicle. But even after getting service, there was no improvement and hence wanted to replace the vehicle. But they kept only mum and hence the Complainant had issued a registered notice. But no action was taken by the Opposite Party. The Complainant had purchased the vehicle for supplying interior decoration items and canvassing new job work. Due to the shortage of mileage he has to spend much money for filling petrol to the said vehicle and it adversely affected the business. So the Complainant had issued a lawyer notice on 21.07.04 and Opposite Parry has not even replied for it. So there is deficiency on the part of the Opposite Party and unfair trade practice. Hence this complaint. On receiving notice from the Forum the 1st Opposite Party appeared through Adv.B.P.Saseendran and 2nd Opposite Party through Adv.E.P.Hamzakutty and filed their version. The 1st Opposite Party filed version admitting the delivery of motor cycle and was delivered after completing the process of pre-delivery inspection to the satisfaction of the Complainant regarding the perfect working of the motor cycle and no manufacturing defect persisted in the motor cycle. The Complainant has not produced any expert evidence to prove his averment. The liability of the 1st Opposite Party lies strictly in accordance with the terms and conditions of the warranty. The terms of the warranty extended only to certain parts that may be found to have a manufacturing defect and not the complete vehicle. The mileage of the vehicle depends upon various criteria and are simultaneously essential for the assured efficiency it depends upon the quality of fuel, road conditions, and conditions of the tyre pressure and conditions of the tyre and the 1st Opposite party has not provided any warranty on the mileage. The optimum mileage of the vehicle is obtained only after a certain period of running and no new vehicle is able to give optimum mileage immediately after purchase. On an occasion, whenever the said motor cycle was serviced by the 2nd Opposite Party the mileage of the said motor cycle came to 75-80 KM/Ltr. On the request of the Complainant the test drive of the said motor cycle was taken with one litre of fuel along with the pillion rider and it has 78 KM/Ltr. After receiving the legal notice, 1st Opposite Party tried to contact the Complainant. So there is no deficiency on the part of 1st Opposite Party and hence the petition is liable to be dismissed. 2nd Opposite Party also filed version admitting the purchase. The 2nd Opposite Party came to know the allegations only when received letter dtd. 19.03.04 and on the next day itself the Opposite Party contacted the Complainant and asked him to bring the vehicle for service and repairs; but the Complainant is not ready to do so. A letter was sent on 03.08.04 to the counsel for the Complainant, but there was no response. The 2nd Opposite Party cannot be held liable for the acts and omissions of 1st Opposite Party. The mileage of any vehicle depends upon the quality of fuel, road conditions, optimum speed, driving habit, regular servicing, usage of levers, erratic conditions, engine pressure and condition of tyre and the 1st Opposite Party does not provide any warranty for mileage. 2nd Opposite Party conducted the mileage test and found that the mileage to be 75-80 KM/Ltr. So there is no deficiency on the part of 2nd Opposite Party and hence the complaint is liable to be dismissed. Upon the above pleadings the following issues have been raised for consideration. - Whether there is any deficiency or unfair trade practice on the part of 1st Opposite Party?
- Whether the Complainant is entitled to any relief.
- Relief and cost.
The evidence in the above case consists of the oral testimony of PW1, DW1, CW1 and Exts. A1 to A9, C1 and Exts. B1 and B2. The Complainant’s case is that at the time of purchase of the motor bike the Opposite Parties assured that it would have got 85 KM/Ltr. As stated in the advertisement, but actually it has got only 30 to 45 KM/Ltr. And hence there is unfair trade practice and deficiency of service on the part of Opposite Parties. The Ext.A1 is the owners manual, A2 the credit memo A3 (1) and (2) – Copy of notice issued by Complainant, A4 is the lawyer notice , A5(a) and (b) are Postal receipts and A6(a) and (b) are postal acknowledgement. A7 is the reply of 2nd Opposite Party, A8 is the paper advertisement and A9 is the membership certificate in Vyapari Vyavasayi Ekopana Samithi and Ext. C1 is the commission report. In order to prove the case, Complainant has produced Ext.A8, the advertisement dtd. 16.02.04 and 12. 03.04. In that it was written as So this advertisement itself shows that the mileage of 85 KM/Ltr. will be got only in special test circumstances. The Complainant has taken out a commission and he has filed his report. In the report he opined that no major defects were noticed by him except front right shock absorber and inner tube rusted and these defects can be rectified by servicing the motor cycle and the present mileage is 71 KM/Mtr. In order to check up the mileage he had conducted two types of test and enclosed the mileage test report along with his report. The commission reported that the overall condition was good, the engine working condition and the related parameters are satisfactory and according to the commission, the most scientific method to evaluate mileage is “by taking a particular quantity of petrol in a calibrated external bank connected to the carburetor inlet by separate external tube. The working of the engine was started from this measured quantity of fuel and taken trial run at rated spread of 40 KM/Mtr. till the tank becomes empty and engine stopped. The test showed accurate result and can be taken for valuation of the mileage test. Even though the Complainant had disputed this he has not produced any documents or evidence to show that the test done by the commissioner is not a scientific one. Moreover the commission further deposed that mileage, ability, tyre pressure, road conditions, different running condition The DW1 also deposed that customers shop performance, quality, using method condition, mileage He further deposed that parts replace The complainant’s contention is that the mileage of the vehicle is only 35 to 45 KM/Ltr. But he has not produced any evidence to prove this contention. Above all considering the road conditions and traffic problems in our country it is very difficult to get a mileage of 85 KM/Mtr. Above all there is no warranty for mileage also. So from the available evidence on record we are of the opinion that there is no deficiency of service or unfair trade practice on the part of the Opposite Party and hence this complaint is liable to be dismissed. In the result, the complaint stands dismissed. No cost. Dated this the 26th day of December, 2009. Sd/- Sd/- Sd/- President Member Member A P P E N D I X Exhibits for the complainant: Ext.A1: owner’s manual Ext.A1(a): Relevant page of owner’s manual Ext.A2: credit memo Ext.A3 Series: Copy of notices sent to OP Ext.A4: Lawyer notice dtd.21.07.04 sent to OP Ext.A5(a) & (b): Postal receipts Ext.A6(a) &(b): Postal acknowledgements Ext.A7: Reply of 2nd Opposite Party Ext.A8: Paper advertisement Ext.A9: Membership certificate in Vyapari Vyavasayi Ekopana Samithi Ext.C1: Commission report Exhibits for the Opposite Parties: Ext.B1: Master Circular with respect to Savings Bank Account of SBI issued by Corporate Centre of SBI Mumbai. Ext.B2 : True copy of the delivery run sheet of the professional courier. Witness examined for the complainant: PW1: Inthias C.M. Witness examined for the Opposite Party DW1:Dhanesh.C.M. Witness examined for the Court: CW1: Sumesh.P.V. //Forwarded by Order// Senior Superintendent. | 
