BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 19th day of May 2018
Filed on : 12-01-2016
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.23/2016
Between
Siju Mathew, : Complainant
S/o. Mathew, Pulickal house, (By Adv. Tom Joseph, Court road,
Panamkutty P.O., Konnathady, Muvattupuzha)
Udumbanchola-685 562,
Idukki.
And
1. M/s. Hero Motor Corp Ltd., : Opposite parties
34 Community Centre, (By Adv. Saji Mathew, S.G. Chancery
Vassant Lok, Vassanth Vihar, Chambers, 66/1149, Kalabhavan road
New Delhi-110057, Cochin-18)
rep. by its Managing Director.
2. M/s. MS & S Motors Pvt. Ltd.,
MS & S House, Palarivattom,
Kochi-25,
rep. by its Managing Director.
O R D E R
Cherian K. Kuriakose, President.
Complainant's case
Believing the assurance given by the 1st opposite party M/s. Hero Motor Corp Ltd., that the Hero Splender Motor Cycle would get 102.5 km/1 per litre of petrol. The complainant purchased a smart motor cycle of Hero Honda Splender on 23-06-2015 on payment of Rs. 52,008/-. However, as against the assurance regarding mileage, the complainant was getting only an average mileage of 60 km/1. The bike was purchased from the 2nd opposite party dealer and the reduction in the mileage was brought to the notice of the 2nd opposite party. Thereafter, the 2nd opposite party had conducted a mileage test in the Kochi International Stadium and they got only 78km/1. The mileage test done by the 2nd opposite party as per the testing norms prescribed by the 1st opposite party also failed to obtain the promised mileage. Therefore the promised mileage on 102.5 km/1 given by the opposite parties is false and misleading and it would amount to unfair trade practice. The complainant is entitled to get back Rs. 60,000/- towards compensation for the mental agony, financial loss and unfair trade practice committed against him. Hence the complaint.
2. Notices were issued to the opposite parties, who are the manufacturer and dealer of the motor cycle, they appeared and filed their version resisting the allegations in the complaint contending inter-alia as follows:
3. According to the 1st opposite party, there was no privity of contract between the complainant and the 1st opposite party. The terms and conditions in the warranty specifically provides that any dispute regarding warranty is subject to Delhi Jurisdiction only. The complainant by agreeing terms of warranty and the 1st opposite party specifically excluded the jurisdiction of the Forum in any other place, the question of territorial jurisdiction has to be decided as a preliminary issue. The complainant never availed any services of the opposite party. There is no manufacturing defect for the motor cycle purchased by the complainant and there was no deficiency in service and unfair trade practice on the part of the1st opposite party. The advertisement by the 1st opposite party offering a mileage of 102.5 km/1 is on normal rate condition. The opposite party had never assured the complainant that there will be a mile of 102.5 km/1 in all terrines/road conditions. Mileage of the vehicle depends of various factors including driving habits. The vehicle cannot be held faulty if expected mileage is not received due to the complainant's non-recommended driving habits and abnormal conditions prevailing around. There was no false representation regarding the mileage. The complainant is not entitled to get Rs. 60,000/- as claimed for. The complainant cannot make any claim against the conditions on warranty when the conditions are specifically mentioned in the warranty and agreed by the purchaser. The complaint is liable to be dismissed.
4. The 2nd opposite party filed a separate written version stating that there was no advertisement by the 1st opposite party offering mileage of 102.5km/1 per litter of normal road conditions. The complainant had misconceived about the mileage of the vehicle. The 2nd opposite party is only a dealer selling the motor cycles manufactured by the 1st opposite party. The dealer is not obliged to comply the conditions of manufacture's warranty. The conditions of the purchase of the vehicle with warranty is mentioned in the owners manual given to the complainant. The complainant therefore cannot make any claim against the 2nd opposite party and the complaint is liable to be dismissed.
5. On the above pleadings the following issues were settled for consideration.
- Whether the complaint is maintainable?
- If maintainable whether the complainant had proved deficiency in service for unfair trade practice on the part of the opposite parties?
- Reliefs and costs
6. The evidence in this case consists of the Exbts. A1 and A2 documents on the side of the complainant. The opposite party did not adduce any evidence.
7. Exbt. A1 is the invoice dated 23-06-2015 for the purchase of the vehicle. Exbt.A2 is thecopy of the brochure showing that Hero Splender Smart Motor Cycle is the bike which gives the highest mileage in the world. It is also projected in the brochure”102.5km/1.
8. Issue No. i. Though the opposite party had taken a contention that the jurisdiction regarding the dispute of manufacturing defect is to be decided by the Courts in Delhi. However, no documents were produced by the opposite parties to substantiate such a contention. Therefore, we find that the contention that this Forum has no territorial jurisdiction to entertain the complaint is meritless. The 1st issue is found against the opposite party.
9. Issue No. ii & iii. According to the learned counsel for the complainant, the opposite parties have indulged any unfair trade practice by making a false claim regarding the mileage per liter in respect of the vehicle in question. We have perused the copy of the advertisement allegedly issued by the1st opposite party, which is marked as Exbt. A2 in this case. It is seen written in a corner that 102.5km/1. However, nothing has been brought out in evidence to show that all the vehicles would fetch so much of mileage as claimed by the 1st opposite party. The complainant gave evidence that he was getting only 60 km/1 during the city drive. The 2nd opposite party had done test drive in Stadium road and they obtained a mileage of 75 km/1. There was nothing in evidence to show that the complainant was given assurance that the particular bike purchased by the complainant would fetch 102.5 km/1. Exbt. A2 is only an invitation. The complainant would have used his opportunity to have a test drive of the vehicle and get himself satisfied regarding the mileage claimed by the opposite party. In the absence of any such gester on the part of the complainant, we find that the Doctrine of Caveat-emptor would be attracted to the facts of this case. The decision relied on by the learned counsel for the complainant in KINETIC ENGINEERING LTD. & ANR Vs. Rahul Ray IV (2006) CPJ 100 (NC) NCDRC and Bajaj Auto Ltd & Anr. Vs. PankajKumar IV (2006) CPJ 267 (NC) and the dictum laid down therein cannot be apt to the facts of this case. Therefore, the issue No. ii and iii are decided against the complainant.
10. In the result, the complaint is found liable to be dismissed. Accordingly the complaint stands dismissed.
Pronounced in the open Forum on this the 19th day of May 2018
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant's Exhibits
Exbt. A1 : Copy of retail invoice
dt. 23-06-2015
A2 : True copy of a bike
Opposite party's exhibits: : Nil
Copy of order despatched on :
By Post: By Hand:
