KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO.267/07

JUDGMENT DATED 13.9.2011

PRESENT:

SHRI. M.V. VISWANATHAN                    -- JUDICIAL  MEMBER

 P.D.Muraleedharan Kartha,

157 A – Seema House,                            --  APPELLANT

Keezhillam P.O,

Perumbavoor.

   (By Adv.Tom Joseph)

                   Vs.

1.      M/s Bajaj Auto Ltd;

          Akrudi, Pune – 411 001.                 --  RESPONDENTS

2.      M/s.Arun Automobiles Pvt. Ltd;

Velloorkunnam,

Muvattupuzha.

           (By Adv.George Cherian Karippaparambil & Ors)

JUDGMENT

SHRI. M.V. VISWANATHAN -- JUDICIAL  MEMBER

Appellant is the complainant and respondents 1 and 2 are the opposite parties 1 & 2 in CC.No.46/07 on the file of CDRF, Ernakulam.  The complaint was filed alleging deficiency in service and unfair trade practice on the part of the opposite parties in effecting sale of a motor cycle namely Bajaj discover. 
The complainant alleged that the opposite parties assured mileage 101 Kms. per litre,  But the vehicle purchased by the complainant did not get the assured mileage of 101 Kms. per litre.  Hence the complainant claimed compensation of Rs.35,000/-.

          2.      The opposite parties entered appearance and filed written version denying the alleged deficiency in service and unfair trade practice.  They contended that the mileage of 101 Kms per litre was offered on standard test conditions of riding the vehicle at the speed of 40 kms. per hour  with the pay load of 3130 kgs.  Thus, the opposite parties prayed for dismissal of the complaint.

          3.      Before the forum below the complainant was examined as PW1 and the witnesses from the side of the opposite parties were examined as DWs 1 & 2.  Exts. A1 to A3 and B1 to B3 documents were also marked on the side of the parties to the said complaint.  On an appreciation of the evidence on record, the Forum below passed the impugned order dated 15.5.07 dismissing the complaint in CC.46/07.  Hence the present appeal.

          4.      This Commission was pleased to hear the counsel for the appellant/complainant and the respondents/opposite parties.  The learned counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He relied on the decision rendered by the Hon. National Commission in Bajaj  Auto Ltd. & Anr. VS. Pankaj Kumar IV  (2006) CPJ 267 (NC).  He also relied on A3 document and argued for the position that the subject vehicle did not get the assured mileage of 101 kms per litre.  Thus, the appellant/complainant prayed to set aside the impugned order and to allow the complaint in CC.46/07. 

          5.      On the other hand, the learned counsel for the respondents/opposite parties supported the impugned order passed by the Forum below.  He relied on Ext.B3 report issued by ARAI (Automotive  Research Association of India) and submitted that the assured mileage of  101 kms. per litre was offered on standard test drive conditions.  Thus, the respondents prayed for dismissal of the present appeal.

          6.      Admittedly, appellant/complainant purchased a Bajaj discover motor cycle on 10.5.06 on a sale consideration of Rs.39,490/-.  Ext. A1 is the advertisement in Malayala Manorama daily dated 20.11.06.  The subject vehicle was purchased by the complainant on 10.5.06.  If that be so, it is not proper to say that the complainant was influenced by Ext.A1 advertisement published in Malayala Manorama daily dated 20.11.06.

          7.      Ext.A2 is the pamphlet issued by the first opposite party/manufacturer namely M/s.Bajaj Auto Ltd.  A2 pamphlet would show that the manufacturer offered mileage of 101 Kms per litre for the subject vehicle ie; Bajaj discover.  A2 document would also make it clear that the said mileage 101 kms. per litre was offered under standard test conditions.  What are the standard test conditions are also specified in A2 pamphlet or leaflet.  It is specified that the vehicle has to be test driven with a speed of 40 kms per hour and the vehicle must be having payload of 3130 kgs.  The complainant could not adduce any reliable evidence to substantiate his case that the subject vehicle was test driven with the aforesaid test conditions.  So, the complainant’s case, that the opposite parties adopted unfair trade practice by offering a mileage of 101 kms. per litre for Bajaj discover, cannot be accepted.

8.      Appellant/complainant much relied on A3 certificate.  Ext. A3 document would only show that the subject vehicle obtained a mileage of 85 kms. per litre on test driving the vehicle on road.  But, A3 document is silent about the speed at which the vehicle was subjected to test drive.  It is pertinent to note at this juncture that nowhere it is stated in A3 that the subject vehicle was test driven with a speed of 40 kms. per hour.  It is also not stated in A3 document that the subject vehicle was having the pay load 3130 kgs.  Thus, the appellant/complainant’s case cannot be believed or accepted. 

          9.      The learned counsel for the appellant/complainant much relied on the decision rendered by the Hon. National Commission in Bajaj Auto Ltd and Anr. Vs. Pankaj Kumar IV (2006) CPJ 267 (NC).  The Forum below is of the view that the aforesaid reported decision cannot be applicable to the present case.  The aforesaid conclusion of the Forum below can be upheld.  It is to be noted that in the aforesaid reported case the manufacturer of the vehicle offered mileage of 87 kms. per litre.  But, the vehicle involved in that case gave only the mileage of 65 kms. per litre.  In the aforesaid case, the mileage of 87 kmpl was offered on ideal conditions.  It is pertinent to note at this juncture that the advertisement given by the manufacturer was silent about the ideal conditions.  In such a situation, the Hon. National Commission was of the view that the aforesaid procedure or method adopted by the manufacturer would amount to unfair trade practice.  But, in the present case on hand, the manufacturer more specifically stipulated about the standard test conditions.  Ext.B2 broacher produced from the side of the opposite parties would also specify the standard test conditions.  Thus, the aforesaid reported case (supra) cannot be made applicable in the present case on hand.

          10.    The forgoing discussions and the findings thereon would justify the dismissal of the complaint in CC.No.46/07.  Ext.B3 report issued by ARAI would also support the case of the respondents/opposite parties regarding the standard test conditions in which the subject vehicle would get the mileage of 101 kms. per litre.  Thus, in all respects, the present appeal deserves dismissal.

In the result, the appeal is dismissed.  The impugned order passed by the Forum below in CC.No.46/07 is confirmed.  As far as the present appeal is concerned, the parties are directed to suffer their respective costs.

M.V. VISWANATHAN   :  JUDICIAL MEMBER