By Sri. MOHANDASAN.K, PRESIDENT
The complaint in short is as follows: -
1. The complainant being attracted by the advertisement issued by the first and second opposite parties, decided to purchase Bajaj Platina Motor cycle from the opposite parties. The advertisement was that the Bajaj Platina 100 CC petrol engine vehicle provides 81-kilometer mileage and it has got warranty for 2 years or 30,000/- kilometer. The complainant was not able to mobilize entire price of the vehicle and so the first and second opposite parties assured the complainant that the third opposite party will provide financial assistance at the low rate of interest and in case of any issues with respect to vehicle the third opposite party will provide breathing time to remit installments.
2. Based on assurance from the first and second opposite parties, purchased vehicle on 27/09/2018 with chassis No. MD2A 76AY3JWF36380, engine No. PFY WJ F 07872 for the price of Rs.51,875/-. The complainant paid an amount of Rs.17,500/- by cash and the balance amount was provided by the third opposite party. At the time of issuing finance assistance to the complainant the third opposite party received signed agreement from the complainant along with Aadhar card and two blank cheque leaves and signed stamp paper. The vehicle was registered before RTO, Perinthalmanna with registration No. KL- 53- N- 8927.
3. The vehicle availed only 35–40-kilometer mileage. The complainant informed the opposite party within one week of delivery of the vehicle and that time he was assured that after first service the vehicle will be availed 80 kilometers mileage. The complainant submitted that he used the vehicle strictly obeying the user’s manual and availing the due services. But the vehicle was not performed assured mileage. The complainant submitted that the vehicle never performed more than 35-40 kilometers from the date of purchase. The complainant was compelled to provide more fuel for the use of the vehicle. He was not able to remit the hire purchase installments due to the high expense for the use of vehicle. The complainant directly approached the executive and manager of the opposite parties and they assured that they will stop the collection of instalments and assured that the vehicle will be rectified to provide assured mileage. The opposite party also had assured that the vehicle will be replaced and advised to continue the use of the motor cycle. The complainant used to report the mileage shortage during the service occasion but the opposite party did not give face value for his grievance and advised to use the vehicle after filing full tank fuel. Ultimately the complainant took the vehicle to a mileage test centre of hero which is situated near by municipal office Malappuram and it was revealed 41-kilometer mileage.
4. The complainant availed financial assistance from the third opposite party and he is remitting installments before the HDFC bank Malappuram up to June 2019. There after the complainant being financial difficulty the complainant prays to restrain the third opposite party from collecting the instalments from the complainant and also direct the opposite parties one and two from seizing the vehicle from the complainant. The complainant alleges unfair trade practice and deficiency in service on the part of the opposite parities. The complainant submit that he is suffering from mental agony, in convince, hardship and financial difficulties due to the act of the opposite parties. The prayer of the complainant is to direct the opposite parties to replace the vehicle with a new one which can provide 81 kilometers mileage as assured. The complainant also prays for compensation of Rs.50,000/-. The complainant submitted that if the opposite parties one and two is not able to replace the vehicle as prayed then it may be directed to refund the value of Rs.51,875/- of the vehicle along with compensation of Rs. 2,00,000/- and cost of Rs.50,000/-.
5. On admission of the complaint notice was issued to the opposite parties and on receipt of notice, the opposite parties entered appearance and filed detailed version.
6. The first and second opposite party specifically denied the entire averments and allegations in the complaint.
7. The opposite parties denied the averment in the complaint that the complainant noticed the advertisement of the opposite party regarding Bajaj platina 100 cc motor cycle , the claim of mileage about 81 kilometer per litter, warranty of 3 kilometers or two years, all the vehicles sold by the opposite parties as got 81 kilometer mileage per litter, the complainant was not able to raise the entire amount for the vehicle, the first opposite party stated about the third opposite party which is their own company for availing loan, the third opposite party providing loan at lesser rate of interest, in case of any issues the third opposite party will stop the payment of instalment, the instalments will be re-started only after rectifying the defect of the vehicle etc and the opposite party has not assured or promised as stated by the complainant.
8. The opposite party admitted that there was advertisement of 81-kilometer mileage per litter for the vehicle but there was no such offer from the side of opposite party to the complainant. The opposite party stated that due to road conditions in the area of Nilambur and Malappuram, it cannot assure performance of 81 kilometer per litter as stated. The rough use and improper maintenance will affect the performance of the vehicle. Hence, the opposite party has not assured that the vehicle will provide any standard of kilometer as claimed by the complainant. The assurance regarding the warranty about 2 years or 30,000 kilometer is a fact issued in the booklet issued by the manufacturer. The opposite party is ready and liable to provide the same. The opposite party has not made any lapse in providing service to the complainant. This opposite parties have no any sort of relation with the third opposite party and the complainant is under wrong impression that the vehicle bajaj is related to Bajaj finance.
9. The opposite party submitted that there is no relation between first opposite party and third opposite party. The allegation that the complainant was introduced to the third opposite party for the finance purpose is baseless. The allegation that in case of defect to the vehicle it was assured to postpone the collection of instalments till rectifying the defect of the vehicle and there is no chance to give assurance to the complainant and also there is no power to give assurance to the complainant from the side of opposite parties. The finance agencies including third opposite party are usual to approach the first and second opposite parties for providing financial assistant to the customers but there is no direct nexus between the first and second opposite parties with the fanciers.
10. The opposite parties admitted that the complainant purchased the vehicle on 27/09/2018 on payment of Rs.51,875/- which can be seen from the invoice of the day. The delivery of the vehicle is after receipt of the price of vehicle. It is remitted by the complainant and financier. The opposite parties are not aware about the averment in the complaint that the Aadhar card of the complainant along with two singed blank cheque and stamp paper was given to the third opposite party which is only known to third opposite party.
11. The opposite parties submitted that in case there is no proper maintenance and that too from authorized service center, there is no chance to get warranty or guaranty from the manufacturer. The complainant here in undergone three free services before the opposite parties and thereafter the vehicle was not produced before the opposite parties, and in the matter of lack proper maintenance there is no chance for assured performance of the vehicle. The complainant while produced for the first service had informed shortage of mileage and on verification of the vehicle it was found 75-kilometer mileage per litter. So, the allegation that the vehicle is getting only 35-40 kilometer is wrong. The verification of the same was done on 16/10/2018 which is within 20 days of delivery of the vehicle and after covering 709 kilometers. The complainant was satisfied with the performance of 75 kilometer mileage per litter considering the road condition of the locality and thereafter he did not opted any service on the issue.
12. The opposite parties submitted the vehicles sold is getting mileage of 70-75 kilometer per litter in the area of Malappuram, Manjeri , Nilambur , Perinthalmanna. The same is due to road condition of the area and it can be expected more performance only in the highway while running in moderate speed and ARAI. The opposite party submitted that the vehicle had obtained mileage while tested at Angadipuram and the complainant being a technician of Samsung company is aware of the fact very well.
13. The averment in the complaint is that the first opposite party had assured after first service the vehicle will perform mileage more than 80 kilometer per litter, on assurance of the same complainant continued the use of the vehicle after one week of purchase, the complainant availed and used the vehicle in accordance with the instructions laid down in user’s manual and the vehicle did not perform as assured is in correct. The areas like Malapapuram, Manjeri, Edavanna, Chungathara , Nilambur , Edakkara , Perinthalmanna ,Angadipuram etc are the places where the road conditions and traffic reasons are not suitable for the performance of the vehicle, cannot expect the level of offer by the opposite parties. The complainant had approached the opposite parties on completion of 4758 kilometer for the second service on 09/02/2019 and that time no complaint was reported including shortage of mileage or any other defects to the vehicle. The second service was only a regular service and only brake adjustment was made at the time of second service. The same was due to excess use of the vehicle and application of sudden brake and due to traffic issues. The front brake was not using by the complainant which means the rear brake was used more occasions and the complainant was duly advised for proper use of vehicle. The Opposite parties further specifically denied the averment the vehicle never performed more than 35-40 kilometer per liter, the complainant incurred more expenses for the fuel, he was in difficulty to remit instalments of hire purchase agreements approved, the executive of the opposite party directly and also the manager assured to stop the installment collection , assured that on rectifying mileage issue, the manufacturer agreed to take back the vehicle with complaint of mileage issue, it is advised to continue the use of vehicle till replacing with new vehicle etc are baseless and not sustainable. The averment that the complainant complained about the mileage issue during the service occasion but the opposite parties did not care the complaint of the complainant, the opposite party dealt in a light way and advised to run the vehicle filling the tank etc are incorrect. The averment that due to shortage of mileage vehicle was taken to mileage test, found 41 kilometers, the complainant obtained financial assistance which was making repayment through HDFC bank Malappuram, there was regular payment of instalment till June 2019. the averments that vehicle is defective one, mileage short, fuel is in excess use, suffering financial difficulties and so not able to repay the loan, to stay the payment of monthly instalment till rectifying the defect of the vehicle, not seize the vehicle are not aware to the opposite party.
14. The opposite parties alleged that the complainant approached hero, an establishment to conduct mileage test which is a rival company of the opposite parties. The opposite party was ready to conduct mileage test if it was demanded by the complainant. There is no explanation that where the vehicle was under gone mileage test, which was the road opted for running the vehicle, who was the rider, the weight on the vehicle etc required to consider. So, the statement that 41-kilometer millage was only available cannot be accepted. The act of the complainant is violation of the terms and conditions and the manufacturer is not allowed to conduct this sort of mileage test. The allegation that several customers raised complaint against this series was told by the executive of the opposite parties are incorrect. The opposite parties submitted that the vehicle is designed to riders who ride the vehicle in slow speed and not meant for performance purpose. There is honest pulling and mileage for the vehicle. The services were also not done after three services. In case the vehicle was serviced from other centers who are not authorized service centers, the opposite parties are not liable for the same. There is no cause of action as alleged in the complaint.
15. The vehicle had crossed 9759 kilometer while the vehicle was producing before the service center on 17/04/2019. At that time, it was revealed the vehicle has got 75 kilometer performance. The statement that the vehicle performance is around 35-45 kilometer is incorrect. The third service was done on 17/04/2019 and thereafter the vehicle was not brought for service. The opposite party submitted that the Commission had instructed the complainant to permit to examine the vehicle by the opposite party and accordingly the opposite parties along with the counsel and manager contacted the complainant but it was told that complainant is laid up and on his recovery it can be done. But there after though contacted several times, at last it was inspected on 04/11/2019 and revealed that vehicle covered 17,000 kilometers during that period. The opposite party manager and two others approached the residence of the complainant to take the vehicle but the complainant refused to do so and claimed replacement with a pulsar 150 vehicle and totally restrained the opposite parties from rectifying the defect and for taking the vehicle for examination The fact was informed to the counsel of the complainant but she expressed helplessness. At the time of visit to the residence of the complainant the vehicle was noticed lying without any maintenance. It appeared the vehicle was involved in the flood also. The opposite party is not able to describe the condition of the vehicle at present. The opposite party is ready to rectify the defect of the vehicle on either producing the vehicle to the opposite party or in case of permitting to take away the vehicle for the service. In case of the vehicle lay in water the opposite party is not responsible for mileage shortage. It is all the responsibility of the complainant. If there was any sort of such defects to the vehicle it should have reported to the insurance company. There was no report of complaint to the vehicle except the allegation of the complainant. All the defects reported were rectified duly. Regarding shortage of mileage, it was found 75 kilometer per litter at the time of first and third service which is in accordance with the road condition of the area, Malappuram where the vehicle was plied. Hence the allegation of the complainant is baseless and attempt of the complainant is to cause damage to vehicle without properly maintaining and providing service. There is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.
16. The third opposite party denied the allegations in the complaint. The third opposite party submitted that they are only financier in this transaction and only extended financial assistance to the complainant on request for purchase of a motor cycle which is selected by the complainant himself and they are not at all liable and responsible for the technical / manufacturing defect of the vehicle as the opposite party is only a financier. The loan agreement terms and conditions are not in dispute at any point of time by this complainant and there is no any allegation of the same in the present complaint. The allegation are related to the second opposite party and the second opposite party is only in position to resolve all the concerns, complaints of the complainant since the third opposite party is not at all responsible for manufacturing defect and service of the vehicle. Considering the said fact, the third opposite party is not a necessary party to the complaint and the present complaint deserve dismissal on this ground itself against the third opposite party.
17 The complainant himself approached the third opposite party and requested for financial assistance for purchase of a two-wheeler. Considering the request from the complainant the opposite party agreed to extend financial assistance to the tune of Rs.64,908/- including financial charges of 9,408/- rupees for 18 months and agreement was also executed between complainant and third opposite party. As per loan agreement complainant was liable to remit Rs.3606 per month. The payment started from 03/11/2018 and the last payment of installment was to 03/04/2020. The complainant opted auto debit mode for repayment of loan instalments. Prompt payment of loan amount without delay and default is the core of the contract and after understanding all terms and conditions the complainant signed and executed the loan agreement. As per record on 19/11/2019 the complainant is liable to pay Rs.14,424/- toward instalment overdue, Rs.33,03/- towards other dues along with Rs.14,424/- towards future instalment. Hence complainant is duty bound to remit the loan amount as stated above. The averment that signed blank stamp paper received by the opposite party is incorrect. The opposite party further submitted that all other averments in the complaint is directed against the first and second opposite parties. Hence the prayer is to dismiss the complaint against third opposite party with appropriate cost and also prayed direction to the complainant to regularize the loan account and pay EMI as per Annexure B.
18. The complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A5. The documents on the side of first and second opposite party marked as Ext. B1 to B3. Ext. A1 is copy of registration certificate. Ext. A2 is copy of invoice dated 27/09/2018. Ext. A3 is copy of estimate regarding mileage testing dated 22/04/2019. Ext. A4 series tax invoice dated 16/10/2018, 17/04/2019. Ext. A5 is copy of account statement from HDFC bank. Ext. B1 is copy of tax invoice dated 16/10/2018 (3 pages) Ext. B2 is copy of job card dated 09/02/2019(2 pages). Ext. B3 is copy of tax invoice (3pages) dated 18/04/2019.
19. Heard complainant and opposite parties, perused affidavit, and documents. Both side filed argument notes. The following points arise for consideration:-
1) Whether there is mileage shortage to the vehicle as alleged in the complaint?
2. Relief and cost?
20. Point No.1 &2
The complainant herein purchased a motor cycle from the first opposite party on 27/09/2018 and the first opposite party arranged loan facility from the third opposite party through a hire purchase agreement. The complainant submits that at the time of delivery of the vehicle the first opposite party had assured that the vehicle would receive 81-kilometer mileage per litter and the vehicle has 30,000/- or two years engine warranty.
21. The complainant alleges that the vehicle is getting only 35 to 40 kilometer per litter mileage. The complainant contacted the first opposite party and reported the fact. The first opposite party again assured that the vehicle would get more than 81 kilometers mileage after the first service. The complainant submitted that he complied all the instructions as per user’s manual but there was no improvement. At last complainant approached hero work shop at Malappuram to check the mileage and the result was 41 kilometer per litter mileage to the vehicle. The complainant produced Exhibits A1 to A5 to substantiate his allegations. Documents produced by the complainant includes tax invoice issued by the opposite party as part of service. Ext. A3 is an estimate issued from moto torque, two wheelers carriage of hero, Malappuram dated 22/04/2019. The documents reveals that 4. 1 kilometer on 100ml fuel. The vehicle number shown as KL 53 N 8927, the vehicle involved in this complaint.
22 The opposite parties raised various objections including absence of technical expert evidence and reasons for mileage variation to the vehicles. The contention of the opposite party is that the allegation is being one of manufacturing defect the same has to be proved with an expert report or opinion. But in this complaint the allegation of the complainant is that the vehicle is not providing the mileage as claimed by the opposite parties. The complainant specifically submitted that the offer regarding the mileage for the vehicle was 81 kilometers per litter. Non- availability of offered mileage need not be a manufacturing defect of the vehicle. There is no other allegation except the shortage of mileage to the vehicle. The complainant contended that due to shortage of mileage, he incurred additional financial burden on the aspect of purchasing fuel to the vehicle. The Commission holds that where there is apparent factual evidence, an expert evidence is not required.
23. The contention of the opposite party is that fuel average achievable in any vehicle depends on various external factors on which there are not under control of manufacturer i.e the number of start and stop to the vehicle, the load carried on the vehicle, the road conditions, the tyre pressures, the purity of the fuel, the maintenance of the vehicle, the driving habit of the driver etc. It is also relevant that servicing of vehicle, lubricating number false, road condition, gradient of road, driving, traffic etc. The submission of the opposite party is that the mileage is not offered by the company but is certified by the statutory body under government of India. The test specifications are fixed and done by ARAI (Automatic research association of India). But the fact remains that the opposite party has not denied the claim that the vehicle is providing mileage of 81 kilometer per litter. We cannot accept the contention that the mileage is not offered by the company but is certified by the statutory body under the government of India.
24. In this complaint the specific allegation of the complainant is shortage of mileage i.e., 35 to 40 against 81 kilometer per litter. The difference between 81 kilometer per litter and 40 kilometer per litter is remarkable one. The complainant produced Ext. A3 document to establish his grievance. But the opposite party dispute the genuines of the document. But the opposite party has not taken steps to establish that the vehicle is providing mileage to reasonable extend i.e even up to 75 kilometers per litter as claimed in the version. The opposite party submitted that while producing the vehicle before the opposite party for periodical service the vehicle had performance of 75 kilometer per hour. The opposite party further averred that the complainant was in use of the vehicle without any inconvenience and trouble. The total kilometer covered by the vehicle, according to the opposite party reveal the performance of the vehicle. But the opposite party has not taken steps to establish the contention that the vehicle has got performance of mileage as claimed. The Commission endorse the view of the opposite party that various external factors are relevant to avail mileage to a vehicle. But it is to be noted that the vehicle manufactured by the opposite party to use within the road conditions of the country where it is delivered. So, any sort of offer regarding mileage is relevant with the road conditions prevailing where the vehicle is delivered. So, it is not proper to offer mileage to the vehicle to particular road conditions alone. In this complaint the vehicle was taken to the opposite party for the service three occasions duly so it cannot be contended there was no due service to the vehicle. The complainant raised his grievance within the short period of delivery of the vehicle. The allegation of the opposite party that the technicians approached the opposite party for verification of the vehicle and it was not permitted by the complainant. But no proper steps were taken by the opposite party to conduct due expert examination of the vehicle to prove the claim of opposite party. The defect and the short coming of the vehicle alleged in the complaint is being apparent one, it was up to the opposite party to take necessary steps to establish the contention of the opposite party. Hence, we do not find merit in the contention of the opposite party and we find that the vehicle was with shortage of mileage as against offer made by the opposite parties.
25. The third opposite party is the financier in the matter. There is no specific allegation against third opposite party. Only thing is that the third opposite party is also working within the premises of other opposite parties. The name of parties also being similar there is every chance to think that all are part of each other. But want of specific allegations and evidence against third opposite party, we find that the third opposite party is an unnecessary party in the complaint. A financier has nothing to do with the issue of mileage of vehicle.
26. The complainant submitted that due to shortage of mileage he was compel to spent more money towards fuel purpose. He was also fail to remit instalments towards hire purchase transaction. He remitted instalment amount regularly up to 2019 June. Hence the prayer of the complainant is to stop the collection of installment amount till restoring the mileage offer of the vehicle. The complainant further paid replace the vehicle with new one having offered kilometer mileage of 81. The complainant prayed compensation of Rs.50,000/- towards the expense incurred on account of fuel. The complainant also prayed to refund the cost of the vehicle Rs.51,875/- in case the opposite parties fail to replace the vehicle. Complainant prayed cost of Rs.50,000/- also.
27. The documents shows that the complainant purchased the vehicle on 27/09/2018. But the present complaint was filed on 05/07/2019. So, within one year of purchase itself the complainant was aggrieved due to the defect of the vehicle. It is also relevant that the complainant availed first three services from the opposite parties duly. The complainant was in use of the vehicle for the last 4 years. So, it will not be proper to direct the first and second opposite parties to replace the vehicle with a new one and having mileage of 81 kilometer per litter. So, the Commission direct the opposite parties one and two to refund the cost of the vehicle Rs.51,875/- to the complainant. The complainant claimed compensation of Rs.2,00,000/- from the opposite parties. We find the claim of complainant is an exorbitant one and the complainant is not entitled for the same. The Commission finds Rs.50,000/- as reasonable amount as compensation. It is also proper to direct the complainant to surrender the vehicle to the first and second opposite parties on refund of the cost of the vehicle. The complainant is also entitled cost of 10,000/- rupees from the first and second opposite parties.
In the light above facts and circumstances, the Commission pass orders as follows: -
- The first and second opposite parties are directed to refund Rs.51,875/- (Rupees fifty one thousand eight hundred seventy five only) as the cost of the vehicle to the complainant.
- The opposite parties are directed to pay Rs.50,000/- (Rupees fifty thousand only) to the complainant as compensation on account of unfair trade practice and deficiency in service and thereby caused inconvenience, hardship and financial loss sustained to the complainant
- The opposite parties are directed to pay Rs.10,000/- (Rupees Ten thousand only ) to the complainant as cost of the proceedings
- The complainant is directed to surrender the vehicle to the first and second opposite parties on receipt of the cost of the vehicle from the first and second opposite parties.
The opposite parties are liable to comply this order within one month from the date of receipt of copy of this order, failing which the opposite parties one and two are liable to pay interest on the above said entire amount at the rate of 9% per annum from the date of this order till date of payment .
Dated this 30th day of May, 2023.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A5
Ext.A1: Copy of registration certificate.
Ext.A2: Copy of invoice dated 27/09/2018.
Ext A3: Copy of estimate regarding mileage testing dated 22/04/2019.
Ext A4: series tax invoice dated 16/10/2018,
Ext A5: Copy of account statement HDFC bank.
Witness examined on the side of the opposite party:
Documents marked on the side of the opposite party: Ext. B1 to B3
Ext.B1: Copy of tax invoice dated 16/10/2018 (3 pages)
Ext.B2: Copy of job card dated 09/02/2019(2 pages).
Ext.B3: Copy of tax invoice (3pages) dated 18/04/2019.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
VPH
