​

O R D E R

Sri. P. Satheesh Chandran Nair (President):

                The complainants filed this petition u/s.12 of the C.P. Act for getting reliefs against the opposite parties.

                2. The case of the complainant is as follows:  The complainant purchased a vehicle CHEVEROLET SAIL 1.3 LT ABS TCDI BSIV from the opposite parties and took delivery of the vehicle on 02.12.2013 from opposite party Nos.4 and 5.  The Registration Number of the vehicle is KL-03-X-3000.  Opposite party No.1 and 2 are the manufacturers of the vehicle.  The opposite parties assured the complainant a mileage of 21.1 km. per litre for the vehicle.  The complainant contended that he could not get the assured fuel efficiency.  As a result of a complaint the opposite party No.3 conducted a test drive on 03.02.2014 and a mileage of 16.5 km.was only found on that test..  According to the complainant, he spent Rs.9,17,000/- as the cost of the vehicle including the registration fee and insurance.  As far as the complainant is concerned he incurred a loss of Rs.10,000/- till the date of petition by using the vehicle.  The deficiency in mileage of the vehicle is a grave deficiency of service.  It is an unfair trade practice of the opposite parties.  The complainant sent a notice to the opposite parties through his counsel on 21.02.2014.  Even after the receipt of this notice the opposite parties did not settle the matter.  Hence the complainant filed this petition before the Forum for the following reliefs.

1. To direct the respondents to pay cash of Rs.9,17,000/- (Nine Lakh Seventeen Thousand only) and take back the vehicle.
2. To direct the respondents to pay Rs.10,000/- to compensate the loss incurred.
3. To direct the respondents to pay Rs.10,00,000/- (Ten Lakh only) as compensation for the inconvenience and mental agony caused to the complainant.
4. To recover all the expenses of the complainant from the opposite parties.
5. Any other relief the Forum deems fit in the proceedings of the complaint.

         3. The complainant filed the above petition before this Forum along with 5 documents which was described in the petition itself.  The Forum entertained this petition and issue notice to the opposite parties.  All the opposite parties are accepted the notice issued from the Forum and opposite parties are appeared before the Forum and filed their version except opposite party 1.  The opposite party No.1 called absent and on 24.07.2014 an exparte order is passed against opposite party No.1.

        4. The opposite party No.2 filed a separate version while opposite party No.3 to 5 jointly filed another version before the Forum.  The contention of 2^nd opposite party is as follows:  According to the 2^nd opposite party this complaint is neither maintainable in law nor on fact and it has to be dismissed in limini.  According to the 2^nd opposite party in his personal capacity he has not undertaken to render any service in pursuance of a contract or otherwise under such backdrop the complainant does not ipso facto make out a complaint in respect of them for agitating before this Forum.  According to the opposite party No.2 an extensive substantiation is required in order to prove the complainant’s claim in view of the allegation in the complaint.  The opposite party No.2 further contended that the 4^th opposite party conducted a mileage test on 03.02.2014 in mixed traffic condition by using mileage tester during which the point of time the vehicle achieved a mileage of 16.5 km. per litre and it would be useful to note that the same also mentioned in the job card.  The 2^nd opposite party specifically denies that he is the manufacturer of the impugned vehicle and further state that he does not comes under the purview of C.P. Act.  According to opposite party No.2 the mileage of the vehicle is a relative concept to dependent upon and related to myriad factors such as driving condition, driving style, technical nuances etc.  According to the opposite party No.2 regarding fuel conception the owner’s manual issued from the company is self explanatory and fuel economy is dependent largely on an individual style of driving.  Opposite party No.2 in his version described 11 points for fuel economy.  According to the opposite party No.2 u/s.115 of the Central Motor Vehicle Rules 1989 the variation of the mileage is described clearly.  According to him, the geographical features of the road condition is also affected the mileage factor.  He again contended that there is no mutual agreement existed between the parties with regard to the consumption of the vehicle.  Opposite party No.2 again states that the reference to the mileage has been misinterpreted by the complainant and manufacturer at no point of time have deceived the complainant in any manner much less than in respect to mileage aspect.  According to him, he did not committed any deficiency in service or committed any unfair trade practice.  He is ready and willing to have a joint test drive with the complainant at any time.  According to the 2^nd opposite party the complaint is not only misconceived, frivolous, vexatious in nature but also an abuse of process of law therefore liable to be dismissed with compensatory cost.

        5. Opposite party No. 3 to 5 filed a joined version as follows:  According to the opposite party No. 3 to 5 the complaint is not maintainable either in law or on fact.  They contended that the Four wheelers manufactured by M/s. General Motors India Pvt. Ltd. properly known under the brand name ‘Chevrolet’ is of high standard and is having wide market acceptance.  These vehicles are manufactured under standard condition and the same is fully inconformity with the Motor Vehicles Rules and has been accepted as marketable commodity under the Motor Vehicles Rules.    

        6. The Motor Vehicles manufactured will be provided for testing under Rule 115 of the Central Motor Vehicles Rules.  Motor Vehicle authorities will conduct all source of test including fuel efficiency test.  According to this opposite parties, on the basis of the tests and certificates, they issued advertisement for their vehicles.  On the basis of the certificate issued from the authority the vehicle under the name ‘CHEVEROLET SAIL’ the fuel efficiency under standard test condition is 22 km. per litre.  The certificate to that effect has been issued by the company on that basis.  This opposite parties contended that under the test riding condition the said model vehicle are providing a fuel economy at 22 kms. per litre.  This fuel efficiency will depend upon such as road condition, traffic, quality of fuel, driving habits, vehicle maintenance and various other aspects.  According to the opposite parties 3 to 5 they have not offered any standard of mileage to the vehicle of the complainant and further added that the said model of vehicle was given a mileage of 22 km. per litre on test ride condition as certified by the SIAM Fuel Economy Consumer Information.  They denied the allegation of the complainant that the vehicle is getting only a mileage of 16.5 km. per litre was not correct.  The opposite parties further submitted that they tested the mileage of the car in the presence of the representative of the complainant and found that the vehicle was giving a mileage of 16.5 km. per litre.  They specifically stated that there is no unfair trade practice or deficiency in service on their part or any breach of contract as alleged.  The complainant have no right to get any relief claimed.  Hence the complaint has to be dismissed with compensatory cost.

                7. We peruse the pleadings of both sides and documents produced on either side and raised the following issues for consideration:

1. Whether the complainant’s case is maintainable before this Forum?
2. If the complaint is maintainable what relief can be granted in this case?

        8. Point Nos.1 & 2:-  In order to prove the case of the complainant, he filed a proof affidavit in lieu of chief examination and examined him as PW1 and marked Exts.A1 to A6.  Ext.A1 is the attested copies of the registration certificate of the vehicle bearing No.KL-03-X-3000 of the complainant.  Ext.A2 is the details showing the specification of the vehicle CHEVEROLET SAIL.  Ext.A3 is the result of the joint mileage test conducted on 03.02.2014 by Deedi Motors Pvt. Ltd.  Ext.A4 is the advocate notice dated 21.02.2014 issued to the opposite parties through the complainant’s counsel George Thazhathethil.  Ext.A5 series are the postal acknowledgment card (5 in number) of Ext.A4.  Ext.A6 is the owner’s manual issued by 1^st opposite party in favour of the complainant.

                9. On other side, the 2^nd opposite party filed proof affidavit in lieu of his chief examination and the counsel filed a petition for exemption from personal appearance.  The other side not raise any serious contention since the prayer for personal exemption is allowed he is examined as DW1and marked Ext.B1 and B2.  Ext.B1 is the Page No.1 to 4 of the owner’s manual (true copy) and Ext.B2 consist of Page No.5 to 9 are the copy of the comprehensive job sheet of the impugned opposite party.  After closing evidence of both sides heard and it is suggested that the complainant is ready and wiling to surrender the vehicle for a joint mileage test of the contesting opposite parties are also accepted this suggestion and the Forum give a direction to conduct a test drive and as a result the test drive conducted and a job sheet was prepared by 2^nd opposite party and both sides give an opportunity to file objection if any in this job sheet and heard the matter in detail.  The complainant in his complaint as well as in the chief affidavit almost deposed in terms of his pleadings in this case.  The complainant vehemently argued that he purchased this CHEVEROLET SAIL 1.3 LT ABS TCDI BSIV vehicle from 4^th opposite party’s institution believing that it will provide a mileage of 22.1 km.  The opposite parties not only give this assurance through their oral submission but through Ext.A2 brochure also.  When the complainant started to use the vehicle he did not get the assured mileage at any stage as 22.1 km.  As a result, he complained the matter to the concerned and on 03.02.2014 a test drive of the vehicle was conducted and the result was only 16.5 km. per litre.  In order to prove this case, the complainant produced the details of the joint mileage test dated 03.02.2014 of Deedi Motors Pvt. Ltd., Pathanamthitta.  The said test result is also produced and marked as Ext.A3 in this case.  Ext.A4 is the advocate notice issued by the complainant through his counsel to the opposite parties concerned and Ext.A5 series are the acknowledgment card of Ext.A4.  It is also clear that Ext.A6 the owner’s manual clearly stated the whole description of the vehicle and its fuel efficiency etc.  But on the other hand, 2^nd opposite party examined as DW1 and marked Ext.B1 and B2 through him.  When we peruse the version and deposition of 2^nd opposite party, Vice President-VSSM M/S.CHEVEROLET SAIL’S INDIA PVT. LTD., it is clear that according to this opposite party this case against him is not maintainable either in law or on fact and the complainant has no right to get any kind of remedy from this opposite party. According to this opposite party, the mileage test conducted on 03.02.2014 is in a mixed traffic conditions by using mileage tester during which point of time the vehicle achieved a mileage of 16.5 km. per litre and same mileage is mentioned in the job card also.  The fuel economy is depended largely on individual style of driving and geographical features and climatical conditions also affect the fuel efficiency.

                10. It is pertinent to see that the impugned vehicle go for a joint mileage test on 27.03.2015 in the presence of the complainant and 2^nd opposite party.  Regarding that test both side filed objection also.  The complainant submitted that the test conducted on 27.03.2015 is manipulated and hence the result is not correct.  But on the other hand in Para 3 of the objection of 2^nd opposite party, “The 2^nd opposite party states that, upon the complainant’s insistence the mileage test was conducted with the same procedure carried out on earlier occasions, while the complainant drove the vehicle during the onward journey, the 3^rd opposite party’s technician drove the vehicle during the return journey and it would be useful to note that the norms of mileage test procedure were explained to Complainant in detail”. 

                11. When we rely the test drive on 27.03.2015 the mileage of the car comes up to 18.5 km. per litre.  If an expert driver who used the vehicle with utmost care and conscious considering all the fuel efficiency which has to be needed as per the stand of 2^nd opposite party no doubt the mileage of 18.5 km. per litre is attained from the existing mileage of 16.5 km.  Hence we can come to a conclusion that a technically qualified person who is applied all the necessary ingredients to save final energy can get 18.5 km. per litre for this car.

                12. The 2^nd opposite party has a specific case that they are complying all the formalities laid down in Sec.115 of Central Motor Vehicles Rules at the time of marketing a vehicle.  Hence, the fuel deficiency cannot be considered a liability on the side of the 2^nd opposite party.  The Sec.115 of Central Motor Vehicle Rules reads as,

“1. Every motor vehicle shall be manufactured and  

      maintained in such condition and shall be so driven  

      that smoke, visible vapour, grit sparks, ashes

      cinders or oily substance do not emit there from.

 2.  On and from the date of commencement of this sub-

     rule, every motor vehicle shall comply with the  

     following standards:

       (a) Idling CO (Carbon monoxide) emission limit for  all four wheeled petrol driven vehicles shall not exceed 3 per cent by volume;

                Method of Test                     Maximum smoke Density

                                                        Light        Bosch       Hartridge

   Absorption     Units         Units

                                  Coefficient

1. Full load at a speed of

60% to 70% of maximum

Engine rated speed declared

By the manufacturer               3.1               5.2               75

3. On and from the date of commencement of this sub-        

                rule all petrol-driven vehicles shall be so manufactured  

                that they comply with the mass emission standards as  

                specified at Annexure ‘I’.  The breakdown of the  

                operating cycle used for the test shall as specified at  

                Annexure ‘II’, and the reference fuel for all such less 

                shall be specified in Annexure ‘III’ to these rules.

4. On and from the date of commencement of this sub-rule, all diesel-driven vehicles shall be so manufactured that they comply with the following based on exhaust gas capacity as specified at Annexure ‘IV’ to these rules.

Mass of Carbon                Mass of Hydro  Mass of Nitrogen

Monoxide (CO)                 carbons (HC)    Oxides (NO) Maxm.

Maxm., Grams                 Grams per        Grams per KWH

Per KWH                             KWH

6. Each motor vehicle manufactured on and after the dates specified in sub-rules (2), (3), (4) or (5), shall be certified by the manufacturers to be conforming to the standards specified in the said sub-sections, and further certify that the components liable to effect the emission of gaseous pollutants are so designed, constructed and assembled as to enable the vehicle, in normal use, despite the vibration to which it may be subjected, to comply with the provisions of the said sub-rule”.

The contention raised by the 2^nd opposite party with regard to Sec.115 of Central Motor Vehicles Rules shall not sustain here.  In an open competitive market a customer is selecting more profitable and convenient good’s in his nature. For this purpose the brochures, paper publication, offers and assurance on the part of dealers are also taken granted and influenced for a final selection.  Hence as per Ext.A2 the mileage capacity of the impugned vehicle is 20.4 km. per litre.  No where in the test or experience there is no case for either side to say that the vehicle has a mileage capacity of 20.4 km. per litre.  The opposite parties has no knowledge or experience to show that the impugned vehicle has got a mileage of 20.4 km. per litre.  The declaration, assurance and presentation of mileage of 20.4 km. is against the actual mileage – i.e. 16.5 km. or 18.5 km.  A consumer is here cheated by an illegal and unbelievable propaganda.  This act is an unfair trade practice on the part of opposite parties in this case.  When we consider the complaint and its relief in the light of adduced evidence it is seen that the 5^th opposite party is not at all a necessary party to the proceeding and he is hereby exonerated from all allegations.  The 1^st and 2^nd opposite parties are the General Motors India and they are the makers of the vehicle and 3^rd and 4^th opposite parties are the authorized dealers of 1^st and 2^nd opposite parties.  After a clear study of this mileage issue at last we can come to a conclusion that nearly 2 km. per litre is the difference of mileage after the joint test drive dated 27.03.2015.  The complainant would like to get a total change of the vehicle and return back the cash paid.  We consider the evidence of this case and sincere attempt on the side of 2^nd opposite party to rectify the mistake after the installation of the petition.  But at the same time we have to borne in mind the helplessness of innocent bonafide purchaser like this complaint in this regard.  In order to attract the customers it is evident that baseless declarations and print out are published and distributed among the customers.  It should be controlled or checked by the process of law.  As already discussed above we find that this case is maintainable before the Forum.  Hence, Point No.1 found in favour of the complainant.

                13. When we appreciate the whole evidence in this case as explained above it is clear that the opposite parties 1 to 4 make it believe that the impugned car has a mileage of 20.4 km. per litre.  Though the opposite parties did joint drive test and other mechanical work in the vehicle the mileage of the vehicle not reached to a level of 20.4 km. per litre as per the assurance.  Hence, we are arrived a conclusion that the opposite parties 1 to 4 committed unfair trade practice in dealing this type of vehicle.  Hence Point No.2 found against the opposite parties in this case.

                14. In the result, we pass the following orders:

1. The opposite parties 1 to 4 are directed to pay a compensation of Rs. 1 Lakh (Rupees One Lakh only) to the complainant within 15 days of from the date of receipt of this order.

2. The opposite parties 1 to 4 is directed to pay Rs.5,000/- (Rupees Five Thousand only) as the cost of the case to the complainant within 15 days of from the date of receipt of order.

3. The opposite parties 1 to 4 fails to execute the order as aforesaid they are liable for an interest of 10% for the A and B relief from the date of order to till the realization of the amount.
4. The opposite parties 1 to 4 are restrain to issue brochures or other type of print out showing exorbitant mileage etc. hereafter. 

         Declared in the Open Forum on this the 30^th day of May, 2015.

                                                                 (Sd/-)

                                                P. Satheesh Chandran Nair,                     

                                                             (President)

Smt. K.P. Padmasree (Member – I)        :    (Sd/-)

Smt. Sheela Jacob (Member – II)           :    (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Wilson P. Chacko

Exhibits marked on the side of the complainant:

A1 :  Attested copies of the registration certificate of the vehicle.

A2 :  Details showing the specification of the vehicle

        CHEVEROLET SAIL. 

A3 :  Result of the joint mileage test conducted on 03.02.2014 by  

        Deedi Motors Pvt. Ltd. 

A4 :  Advocate notice dated 21.02.2014 issued to the opposite  

        parties through the complainant’s counsel. 

A5 series :  Postal acknowledgment card (5 in number) of Ext.A4. 

A6 :  Owner’s manual issued by 1^st opposite party.

Witness examined on the side of the complainant:

DW1  :  Rajesh Sing 

Exhibits marked on the side of the complainant:

B1 : Page No.1 to 4 of the owner’s manual (true copy)

B2 : Page No.5 to 9 are the copy of the comprehensive job sheet.

                                                                         (By Order)

                                                                                                                                  (Sd/-)

                                                                                                              Senior Superintendent.

Copy to:-  (1) Wilson. P. Chacko, Budanikunnil House,                      

                    Jesus Road, Nannuvakkadu,

                    Pathanamthitta – 689 645.

               (2)  Mr. Lowell C Paddock, President & Managing Director,

             General Motors India, Chandrapura Industrial Estate,

              Halol, Gujarat – 389 351.

3. Rajesh Sing, Vice President of Sales,

              Marketing & Auto Sales, General Motors India,

              Chandrapura Industrial Estate, Halol,

              Gujarat – 389 351.

4. T.C. Paul, Managing Director, Deedi Motors Pvt. Ltd.,

              Erumalathoppu, N.H. By-pass Road,

              Venpeduvattom, Anayara, Trivandrum – 695 029.

5. Santhosh Varghese, Manager, Deedi Motors Pvt. Ltd.,

              Kumbazhathu Building, Churulicodu,

              Pathanamthitta – 689 668.

6. Mrs. Bini Abraham, Sales Consultant,

              Deedi Motors Pvt. Ltd., Kumbazhathu Building,

              Churulicodu, Pathanamthitta – 689 668.

        (7)  The Stock File.