Delhi

North East

CC/361/2015

Rakesh Kr. Saxena - Complainant(s)

Versus

Rajeev Raj Bajaj - Opp.Party(s)

17 Oct 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 361/15

 

In the matter of:

 

	Sh Rakesh Kumar Saxena S/o Sh. Rameshwar Dayal R/o H.No. C-473, Street No.5, Ashok Nagar, Mandoli Road Shahdara, Delhi-110093.	Complainant
	Versus
1.           2.       3.	Rajeev Raj & Bajaj Authorized Sale Service And Spare Parts Dealer. A-6, 100Ft Road Shahdara, Delhi-94.   Bajaj Auto Company Through its Authorized Signatory Akurdi Pune-411035   Rajeev Automobiles Service Centre Through its Proprietor/ Auth. Signatory A-6, 100Ft Road, Shahdara, Delhi-110094.	Opposite Parties

 

 

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION  :

24.09.2015 17.10.2019 17.10.2019

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated the facts narrated in the present complaint are that the complainant had purchased a Platina 100 CC black – red color motorcycle bearing Chasis No. MD2A76AZ4FPK00616 Engine No. PFZPFK00667 bearing Registration No. DL-5S-BV-8642 (hereinafter referred to as the said bike) from OP1 dealer on 05.04.2015 for a sum of Rs. 51,000/- (inclusive of insurance, helmet, vat, HSRP, smart card, delivery management, road tax and other charges) acknowledged receipt of by OP1 vide invoice No. VSI102742015000044 dated 06.04.2015. The complainant had purchased the said bike on the advertisement given by the OP1 and OP2, OP2 being the manufacturer of the said bike being a Mileage Champion giving 96.9Kmpl with maximum average and best mileage as compared with other four bikes of Hero and Honda Company. The OPs had also given assurance to the complainant of good after sale service for any removal of defect in the aforesaid bike to be promptly done by OP3, its Authorized Service Centre (ASC). However, on purchase of the said bike, the complainant discovered that the subject bike was giving mileage of only 68 Kmpl on highway which was admitted by OPs as per the Road Test Report conducted by them on 28.06.2015 vide jobcard no. 3363. The complainant was shocked at such poor mileage performance of the said bike and approached the OPs several times complaining about the manufacturing defects in the said bike asking to replace the same in case the defects cannot be removed but the OPs did neither and evaded their responsibility without giving any satisfactory answer by mere inspection of the vehicle and told the complainant that the said bike was OK. The complainant sent various e-mails to OPs between June 2015 to August 2015 to take corrective action regarding mileage problem in the said bike which is not even given 78 - 80kmpl in city drive but OPs ignored all such correspondences and took no action in this regard. Therefore complainant, feeling aggrieved at the dereliction of the duty and negligence on the part of the OPs causing him loss, injury, harassment, mental agony and loss of reputation due to breach of trust and deficiency of service and unfair trade practice was constrained to file the present complaint praying for issuance of directions against the OPs to replace the subject bike or refund its price and to pay a compensation of Rs. 2,00,000/- for loss, injury, harassment, mental agony and loss of reputation due to breach of trust and deficiency of service and unfair trade practice and Rs. 22,000/- towards cost of litigation.

Complainant has attached copy of advertisements issued by OPs with respect to the subject bike Platina ES and its mileage as 96.9kmpl as being India’s most fuel efficient bike and probably of the world, copy of receipt dated 05.04.2015 issued by OP1 acknowledging receipt of payment of Rs. 51,000/- from complainant, copy of invoice dated 06.04.2015 issued by OP1 for the subject bike in the name of complainant, copy of RC, copy of first service jobcard no. 1223 dated 03.05.2015, copy of road test jobcard no. 3363 dated 28.06.2015 recording mileage as 68kmpl and copy of e-mail correspondence between complainant and OP1 and OP2 customer service dated 30.06.2015, 01.07.2015, 23.07.2015 and 20.08.2015 regarding mileage issue resolution.

2. Notice was issued to the OPs on 06.11.2015. All OPs were served between 18.11.2015 and 21.11.2015. However, none appeared on behalf of OP1 and OP2 and were therefore proceeded ex-parte vide order dated 02.02.2016. OP3 also failed to appear before this Forum despite having being supplied with copy of complaint with annexures on 10.12.2015 on its appearance and was therefore proceeded ex-parte vide order dated 14.03.2016.
3. Complainant has filed ex-parte evidence by way of affidavit exhibiting the documents relied upon / filed with complaint as exhibit CW1/A to CW1/E.
4. Written arguments were filed by the complainant in reiteration / reassertion of his grievance against the OPs praying for relief claim in his complaint.
5. Written arguments were filed by OPs submitting that complainant has nowhere mentioned any manufacturing defect / problem in the subject bike nor in its running or has made out a case as to which part of the subject bike is having manufacturing defect which could not be replaced/repaired/serviced and urged that there was no deficiency of service or unfair trade practice on their part.  

By way of additional arguments, OPs placed on record copy of Type Approval Test Report dated 29.12.2014 from Emission Certification Lab of Automotive Research Association of India (ARAI) with respect to the vehicle Platina 100 ES i.e. the subject bike highlighting the Type 1 Exhaust Mass Emission Test as 96.85FC (Km/L) and FC calculated as 96.85 Km/L with Decision-Pass under signature of Deputy Engineer and Deputy Director of ARAI. Further OPs placed reliance upon judgment vide which the Petroleum Conservation Research Association (PCRA) has stated that petrol consumption depends on how a vehicle is driven and on condition of the vehicle and proper driving technique is very important for achieving fuel economy and that there could be 30% variation in fuel consumption because of road and weather conditions. Practically all automobile manufacturers refer to fuel efficiency under “standard test conditions”. OPs contended that the vehicle manufacturers indicate the fuel efficiency only under standard or ideal test conditions as it is dependent on driving skills and quality of fuel and oil used in the vehicle. OPs argued that complainant has been getting a mileage of 68kmpl as confirmed by him and has not taken any expert opinion or report to prove any manufacturing defect, relying on the judgment of Hon'ble National Commission in M/s EID Perry (India) Ltd Vs Baby Benjamin Thushra I (1992) CPJ 279 (NC). OPs further argued that the fuel average depends on number of start and stop of vehicle, load carried thereon, road condition, wheel pressure, purity of fuel, maintenance of vehicle and driving habits of the rider. OPs urged that the said bike would not have run such a long distance in a short period if it was suffering from manufacturing defect and alleged that the complainant has concealed the kilometer reading of the vehicle. OPs denied any deficiency of service on its part or manufacturing defects in the said vehicle since it is a combination of Men Vs Machine and the complaint being merely speculative, merits dismissal with costs.

Thereafter, on directions issued by this Forum on 06.03.2018 for the subject bike to be sent to OP3 ASC for determination of average and filing of latest mileage test report, the subject bike was taken by the complainant to OP3 ASC where it underwent mileage test for average problem on 11.03.2018 vide jobcard no. 9475 where the average of the subject vehicle came out as 67kmpl after undergoing the said test.

6. Additional written arguments were filed in this regard by OP3 urging that as per the settled law in a case of defect in a machinery or a manufacturing defect, only that particular part will be replaced and defect can be ascertained by an independent specialized agency in that field whereas the complainant has failed to prove or take steps for either and relied upon mileage report dated 11.03.2018 with respect to the subject bike and filed tax invoice dated 07.03.2018 for repair job and paid service job done where the kilometer reading of the subject bike was shown as 22842kms. On directions issued by this Forum on 19.02.2019 for OP3 to file vehicle history report, OP3 filed the vehicle history report with respect to three free services and one paid service availed by the complainant from OP3 from 03.05.2015 to 07.03.2018 from 526kms to 22842kms and gap between third free service and last paid service is exactly two years in which period the bike has run more than 15000kms. OP3 relied upon judgment of Hon'ble Delhi  SCDRC in Amlendu Kumar Vs Krishna Kumar in FA No. 935/2013 decided on 23.07.2018 upholding the dismissal of complaint by District Forum on mileage issue raised by the complainant before it in the complaint.
7. The complainant filed photographs of the bike alongwith additional notes of arguments reiterating his grievance and certificate under Section 65B of Indian Evidence Act in support of electronic data placed on record.
8. We have heard the arguments addressed by both parties and have given our anxious consideration to the documentary evidence placed on record.

Undisputedly, the subject bike purchased by the complainant from OP1 in April 2015 was giving a mileage of 68kmpl when road test was conducted in June 2015 and 67kmpl when it underwent mileage test after three years of its purchase and almost 23000kms of run. This was in stark contradiction to the advertisement put up by the OPs claiming the subject bike to be giving the best mileage of 96.9kmpl as compared to all other motorcycles in India and has even gone to the superlative extent of claiming worldwide number one position. OPs have offered no explanation as to how such advertisements came to be issued and why there is no indication by way of any asterisk mark / indication of any kind against the numerical figure of mileage that under what conditions the said mileage could be achieved or could be less than that. We do not find any endorsement at the foot of the pamphlet saying that 96.9kmpl could be intelligible to a consumer purchasing the said motorcycle in absence of any standard conditions or qualifiers / riders given thereagainst. The OPs relied upon ARAI Report for claiming that particular mileage as per test conducted by the said body which is formed under the aegis of Government of India and therefore reliable and bonafide. However, notwithstanding the same, the OPs could not rebut or deny the fact that the subject bike could not give mileage beyond 67 – 68 kmpl even when it was new or when it became three years old thereby implying that the advertised mileage of 96.9kmpl was never achievable. The arguments filed by the OPs are conspicuously silent on the advertisement brought out by them regarding mileage of the subject bike and tall claims made therein with regard to the subject bike being the most fuel efficient bike and world mileage champion and the said advertisement does not even contain any asterisk mark or warning that the said mileage can be achieved at a particular speed and on a particular load and under standard conditions. Therefore, in the given situation and circumstances as factually placed before us the complainant was actually getting 30kms less mileage than promised which is also the main/sole grievance made out in the present complaint by the complainant.

The Hon'ble National Commission in judgment of M.R. Ramesh Vs M/s Prakash Moped House and Ors in RP No. 831/2001 passed on 02.05.2003 was dealing with a similar grievance of the motorcycle giving lesser mileage than advertised in newspaper in which the Hon'ble NCDRC modified the orders passed by the District Forum and State Commission Karnataka which had dismissed the complaint and restrained the OP from making such claims of mileage by way of such misleading advertisement and granted compensation to the complainant.

We observe that such simpleton consumers are pitted against large organizations and approach consumer Forum for redressal of their grievance and it is the duty of the Forum to help poor consumers who invest their hard earned money to buy fuel efficient vehicles which are easy on pockets but due to poor mileage, end up incurring huge expenses on fuel defeating the very purpose of its purchase wherein it becomes more of a liability than an asset. The complainant would not have undertaken the mileage test barely2-3 months after purchase if he was not facing mileage issue and his doubts regarding the same were only confirmed when the mileage report came as 68kmpl in two months of its purchase.We therefore hold OPs guilty of unfair trade practice underSection 2 (1)(r) of Consumer Protection Act whereby it has to be held that OPs falsely represented that the subject bike shall give the best and most fuel efficient mileage of 96.9kmpl without any asterisk or clear warning in what circumstances such a claim has been made.

9. We therefore restrain the OPs from making such misleading endorsements / advertisements of mileage of the subject bike unless clarity is given as to how such claim / figure has been made and under what standard conditions. Advertisement should not be misleading of the quality of goods and services. We further direct all OPs jointly and severally to pay compensation of Rs. 15,000/- inclusive of litigation charges to the complainant. Let the order be complied by OPs within 30 days from the date of receipt of copy of this order.
10. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on  17.10.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member