This complaint coming up before us for hearing on 18-06-12               in the presence of Sri M. Ratna Bhaskar, advocate for complainant,   Sri Ch. Nageswara Rao, advocate for 1^st opposite party and                     Sri Ch. Ramesh, advocate for 2^nd opposite party, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-

        The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking replacement of old vehicle with a new vehicle; Rs.50,000/- towards compensation; Rs.10,000/- towards legal expenses and Rs.5,000/- towards deficiency of service.

2.  In brief the averments of the complaint are these:

        The 1^st opposite party is the authorized dealer of the 2^nd opposite party (manufacturer) of TVS Motor cycles.  The complainant purchased TVS Star city BSII motor cycle from the 1^st opposite party on            17-03-10.  At the time of purchase the 1^st opposite party informed that fuel economy was upto 80 km/liter.  One month after purchase the vehicle got trouble in engine with sounds.   The complainant noticed the same and took the vehicle on 21-04-10 for rectification.   The 1^st opposite party got the vehicle repaired by replacing bore and other parts of the vehicle.   But the condition of the vehicle remained same.  The complainant again brought to the notice of the 1^st opposite party on 27-07-10.  Again the 1^st opposite party replaced bore and changed clutch plates.  In spite of that there was no improvement in fuel consumption and sounds in the engine persisted.  On 29-03-11 and 27-06-11 the complainant approached the 1^st opposite party and placed the vehicle before it for rectifying defects.  The 1^st opposite party collected charges.   In spite of that there was no improvement in fuel consumption.  Thus there was deficiency on the part of the opposite parties in selling a defective vehicle. The complainant suffered mentally and sustained monitory loss due to deficiency of service.   The 1^st opposite party gave reply to the notice issued by the complainant.  The 2^nd opposite party though received notice did not chose to reply.   The complaint therefore be allowed.

3.  The contention of the 1^st opposite party in nutshell is hereunder:

        The 1^st opposite party is a dealer of vehicles manufactured by   2^nd opposite party.  Free and paid service coupons were furnished to the complainant to facilitate warrantee services.   The allegation of low mileage and noise from engine was totally misplaced.   There was no such defect in the said vehicle.   It is the responsibility on the part of the complainant to get the services from time to time stipulated in service conditions.   As per warranty conditions the complainant was not entitled either for replacement of vehicle or refund of purchased price. At best the opposite parties can replace the defective component only.   The complainant’s vehicle is in perfect mechanical condition and there was no defect in it.   The complainant did not adhere to the service schedule and missed 1^st and 2^nd free services.  The complainant availed services on 17-08-10, 23-09-10, 25-01-11,            22-03-11 and 13-04-11.    The 1^st opposite party rendered services in a good and proper manner.   The complainant took delivery of the vehicle soon after free/paid services and is using it.   The complainant used the vehicle extensively to the tune of 13430 kms as on 13-04-11.   The 1^st opposite party provided services from time to time whenever complainant approached.   The nature of service request made by the complainant was nothing but maintenance services.  Mileage is a resultant of usage of vehicle.   Fuel efficiency is a combination of engine RPM and speed with RPM being the primary factor, so one gets the best fuel efficiency at a particular RPM.   A higher gear at a particular RPM means greater will be the speed and hence one can cover more distance by burning the same amount of fuel.    One cannot allege that the motor vehicle does not give mileage on mere filling up of petrol in the petrol tank and look up the speedometer running. Estimation of mileage involves accurate arithmetical, technical calculations under various test conditions viz., purity of oil, engine oil, lubricant, air pressure, atmospheric pressure, road conditions, geographical conditions where the test was conducted, vehicle load and users riding habits etc.   The 1^st opposite party promptly attended to the complainant’s request and satisfied her.  Rest of the allegations contra mentioned are all false and are created for the case.  The complaint therefore may be dismissed.

4.  The contention of the 2^nd opposite party in brief is thus:

          The warranty condition does not require replacement of vehicle or refund of purchase price.  The obligation of the 2^nd opposite party in normal circumstances within the period of warranty if found manufacturing defect the respective components have to be replaced.  There is no evidence on record to establish any alleged manufacturing defect.   The 1^st opposite party rendered services in proper manner as and when the complainant approached.   The complainant malafidely coloured the maintenance service calls as purported/alleged deficiency in services.  There was no commitment or contract between the complainant and the opposite parties with regard to claim of mileage. Mileage is a resultant of usage of vehicle.   Fuel efficiency is a combination of engine RPM and speed with RPM being the primary factor, so one gets the best fuel efficiency at a particular RPM.   A higher gear at a particular RPM means greater will be the speed and hence one can cover more distance by burning the same amount of fuel.    One cannot allege that the motor vehicle does not give mileage on mere filling up of petrol in the petrol tank and looking up the speedometer running. Estimation of mileage involves accurate arithmetical, technical calculations under various test conditions viz., purity of oil, engine oil, lubricant, air pressure, atmospheric pressure, road conditions, geographical conditions where the test was conducted, vehicle load and users riding habits etc. Mileage is not a constant factor in a motor vehicle.  It may vary due to a) conditions of the vehicle b) maintenance and tuning of the vehicle c) riders vehicle handling method or habit eg., rash driving, frequent application of break, gear lever, improper changing of speed, irregular acceleration, sudden stop and start of vehicle, improper ignition, keeping the engine in long idling, over load, d) use of fuel and its quality e) tuning of vehicle from time to time f) usage of lubricant oil and its quality               g) road condition h) traffic condition i) environmental factors               j) air pressure on the tyres k) emition norms followed by vehicle user l) conditions of maintenance service by user m) any components changed in the vehicle or wear and tear of components.   These factors are beyond the control of manufacturer.  Only a vehicle owner/user can experience such external factors.   The complainant if any is entitled only for paid repairs and services.  The opposite parties have attended to the problems of complainant from time to time whenever approached.   The mileage figures quoted are explicitly mentioned as being obtained under standard test conditions only.    The complainant never followed and struck to the service schedule prescribed.  An automobile requires regular maintenance to keep it in pristine running condition.  The vehicle mechanicals would have suffered as a result of gross neglect by the complainant which resulted in the alleged poor performance of the vehicle.  The complainant herself has to blame for the same due to her cavalier attitude in maintaining her vehicle.  The opposite parties have not denied any service to the complainant.  The complainant concocted stories to gain illegal advantage. The complainant’s vehicle is in perfect mechanical condition. The complainant did not sustain any damage. All vehicles manufactured by the 2^nd opposite party were subject to various tests and analysis and the vehicles were taken up for dispatch to dealers only when quality control tests were found to be okay in all respects.   The complainant in ulterior motives set up a false case.  Rest of the allegations contra mentioned in the complaint are all false and fabricated for the case.  The complaint therefore be dismissed.

4.     Exs.A-1 to A-7 were marked on behalf of complainant.                   No documents were marked on behalf of opposite parties.

5.     Now the points that arise for consideration are:

1. Whether the opposite party committed deficiency of service?
2. Whether the complainant is entitled to compensation?
3. To what relief?

6.   Admitted facts in this complaint are these:       

          1. The 2^nd opposite party is manufacturer of TVS motor bikes.

        2. The 1^st opposite party is the dealer of the 2^nd opposite party                   for selling TVS motor bikes.

        3. The complainant purchased TVS Star City motor bike from the           1^st opposite party on 17-03-10 along with warranty (Ex.A1).

        4. The complainant is owner of the motor bike bearing                              No.AP07 AV 9828 (Ex.A-2).

        5. There was exchange of notices between the complainant and                         the opposite parties (Exs.A-5 to A-7).

        6. The 1^st opposite party attended to the paid service to the                      motor bike of the complainant on 29-03-11 (Ex.A-4).   

          7.  The 1^st opposite party attended to the free services on

                21-04-10 at 1100 kms; 20-07-10 at 2500 kms;

                29-09-10 at 5432 kms (Ex.A-1).

7.  POINTS 1&2:-   The contention of the complainant is that inspite of getting her vehicle tested and repaired did not give mileage as specified in the warranty.   In last page of the warranty (Ex.A-1) fuel consumption was mentioned as 76.9 kms/liter.  The last page of the said warranty also contained a disclaimer and it reads as follows:

“1.  The values declared above are the extract of the results that        have been obtained in a mandatory emission test specified       in Rule 115 of Central Motor Vehicles Rules 1989 under     controlled conditions using a reference fuel at an agency         authorized by Rule 126 of the said Rules.   The values       obtained by users will differ from these values due to         infinite variables such as driving habits, road and traffic conditions, fuel quality, maintenance practices, loading      pattern, ambient conditions and usual engineering        tolerances on components and so on.

2. The values declared above have been obtained on one of the         variants of the displayed make/model.  Users may obtain       different values on other variants of this make/model.

        3. The vehicle manufacturer and its authorized dealers shall not                  be liable for any difference fuel consumption values due to                     any of the aforesaid variables and no claim shall lie                               thereon.

        4. The information provided above is the property of the afore mentioned vehicle manufacturer.    The information is for user information only and may not be quoted without prior permission of the vehicle manufacturer.

        5.  The values indicated herein above are subject to change without notice due to changes in the parts related to fuel economy and each change can be made by vehicle manufacturer at his own discretion, without notice.

        6.  The accuracy or correctness of the same values is not                          undertaken or guaranteed when not tested under identical                         conditions”.

8.     The contention of the opposite parties is that fuel consumption depends  a) conditions of the vehicle b) maintenance and tuning of the vehicle c) riders vehicle handling method or habit eg., rash driving, frequent application of break, gear lever, improper changing of speed, irregular acceleration, sudden stop and start of vehicle, improper ignition, keeping the engine in long idling, over load, d) use of fuel and its quality e) tuning of vehicle from time to time f) usage of lubricant oil and its quality g) road condition h) traffic condition               i) environmental factors j) air pressure on the tyres k) emition norms followed by vehicle user l) conditions of maintenance service by user m) any components changed in the vehicle or wear and tear of components.  The said contention of the opposite parties is having considerable force. The complainant simply mentioned that mileage of her vehicle was not improved and did not the actual fuel consumption per liter. 

9.     It is also the contention of the opposite parties that the complainant did not avail the free services in time as mentioned in manual.  In page 30 of Ex.A-1 periodic maintenance schedule was mentioned when periodic services have to be obtained.   According to the said manual the 1^st three services have to be done within one month (at 500-750 km); 3 months (at 2500-3000 km); 6 months (at 5500-6000 km) respectively whichever was earlier.  According to the free service coupons contained in Ex.A-1 the complainant obtained free services on 21-04-10 at 1100 km; on 20-07-10 at 2500 km; on 22-09-10 at 5432 km.   The above information corroborated the contention of the opposite parties that the complainant did not adhere to periodic maintenance schedule. 

10.   During the course of enquiry, the opposite parties on 23-05-12 attended to the repairs of the vehicle on a suggestion made by this Forum.   Complainant’s husband gave satisfaction letter stating that he was satisfied with the services rendered by dealer M/s Pioneer TVS and all the complaints reported by me were attended and solved to my entire satisfaction.   The job card as well as satisfaction letter was filed into Forum on 08-06-12 by way of memo.   On 08-06-12 as the complainant was absent the matter was adjourned to 18-06-12 for want of representation to enquire into the satisfaction letter filed by the opposite parties.  On 18-06-12 complainant’s husband present and stated that he was not satisfied with the work done by the opposite parties.   In view of the satisfaction letter given by the complainant’s husband the same could not be believed.  It is not the case of the complainant that the opposite parties did not attend to the services complained by her. 

11.   The complainant in her complaint averred that the said vehicle suffered from manufacturing defect besides contending less mileage. By 23-05-12 the vehicle covered a distance of 28966 km (as mentioned in satisfaction letter).

12.  The onus to prove the allegation of manufacturing defect is on the person who alleges it.  Section 13 of the Consumer Protection Act placed burden on the complainant as he alleged defects in the goods.   Section 13 of the Consumer Protection Act further envisaged that where the defects cannot be determined without proper analysis or tests then the same can be proved by getting the report of an expert.   The complainant failed to lead any evidence to show that the subject vehicle suffered from manufacturing defect. 

13.  Having recorded satisfaction through her husband regarding repairs done by the opposite parties the complainant is not entitled to get either replacement of the vehicle or value of the vehicle.   We gain support for the said observation from the decision reported in Scooter India Limited vs. Manjulaben Kiritbhai and others 2010 CTJ 1039 (NCDRC) where in it was held:

        “Until and unless, the manufacturing defect is pointed out and proved, the manufacturer cannot be asked to replace the   vehicle.

        Dealer/respondent No.3, to whom the vehicle was given for repairs, had repaired the vehicle and the complainant had recorded his satisfaction to that effect.  After having done so, the complainant cannot turn back and file the complaint saying that there was a manufacturing defect.  Defect, if any, had been repaired and the complainant and recorded his satisfaction.  Having done so, the complainant cannot turn around and stay that there was a manufacturing defect”.   

Under those circumstances, the complainant is not entitled for any compensation also in our considered opinion. We therefore  answer these points against the complainant.

14. POINT No.3:-  In view of above findings, in the result the complaint is dismissed without costs.    

Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 22^nd day of June, 2012.

MEMBER                                             MEMBER                                             PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties :   NIL

                                                                                                                       PRESIDENT