PER S.K. NAIK, MEMBER

          Respondent/complainant purchased a Kinetic Nova Scooter manufactured by the petitioner on 20.2.2002.  The complainant, it appears was impressed by the claim of the manufacturer that the scooter with the latest international design will give a fabulous 60 km. per liter mileage on road.   However, this claim of the manufacturer turned out to be a false promise as the complainant soon discovered that the scooter was giving a mere 24 to 30 kms. per liter.  In the complaint, the loss suffered was said to be Rs.19,141/- at the rate of Re.1/- per k.m. on account of less mileage than advertised.  However, when he left the scooter with the respondent No.1 on 9.11.2006, the vehicle had run 33805 kms. as per reply of respondent No.1.  The complainant in written arguments filed on 27.3.2009 states, he suffered loss of Rs.35,000/-.  Alleging a number of other deficiencies, a complaint was filed before the  District Consumer Disputes Redressal Forum, Indore (For short ‘District Forum’) who framed a number of issues and arrived at the finding that the only deficiency that stood established pertained only to per liter mileage.  The District Forum had appointed, a Commissioner who found that the scooter gave a performance of only 25 kms. per liter.  The District Forum vide its order dated 5.2.2005, therefore, ordered the opposite parties to take back the scooter and recondition it to ensure that it gave an average of 60 kms. per liter and return the said scooter to the complainant and if that was not possible, the opposite parties were directed to give the complainant another Nova scooter with a performance of 60 kms. per liter. 

          This order of the District Forum was challenged before the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal (for short ‘State Commission’) who vide its order dated 29.7.2006 remanded the matter back to the District Forum with the direction to get the vehicle inspected by an independent agency.  The District Forum, thereafter, appointed the Rajpal Honda Agencies dealing with motorcycle and scooter with the consent of both the parties to inspect the vehicle.  Even, thereafter, it was reported that the scooter performed @ 45 kms.  per liter on an average.  The District Forum, therefore, vide its order dated 22.1.2007 directed the opposite parties to replace the scooter with a new one within 15 days failing which action under Section 27 of the Consumer  Protection Act, 1986 was to be initiated.

          The present petitioner - the manufacturer, thereafter, challenged the order of the District Forum before the State Commission.  The State Commission on 29.9.2007, while up-holding the order passed by the District Forum has however, given an alternative to the petitioner   to refund the total cost of the scooter in case they are not in a position to replace the scooter.  It is this order of the State Commission which is under challenge in this revision petition.

          Presenting his case assailing the order of the State Commission, learned counsel for the petitioner – M/s Kinetic Motor Co.Ltd. has contended that the scooter in question was inspected twice to ascertain the real mileage it performed per liter ; firstly, by Inspector Shri Indra Bahadur Soni appointed as the Commissioner by the District Forum.  Subsequently, as per the direction of the State Commission, it was inspected for the second time by an independent Agency “Rajpal Honda” who were appointed with the consent of both the parties.  While the first Commissioner reported that the vehicle gave 25 kms. per liter, the second report by Agency Rajpal Honda stated that the vehicle covered @ 61.6 kms. per liter on the highway but the performance came down 28.4 kms. per liter while passing through crowded road/market place. The District Forum worked out the average of these two sets of performance and arrived at the conclusion that the vehicle covered @ 45 kms. per liter on an average.  This methodology was wrong. He submits that the claim of manufacturer that the vehicle gives 60 kms. per liter on road depended upon various factors interalia condition of the road, traffic congestion, frequent application of clutch/brakes as well as variation in speed etc.  He also contends that when the vehicle had been test run  in the workshop of the manufacturer, it had performed @ 54 kms. per liter.  The District Forum ought to have considered that the vehicle had touched a speed of 61.6 kms. per liter on a smooth road and, therefore, the claim of the petitioner that the vehicle is capable of giving 60 kms. per liter was not exaggerated.  Further, there being no manufacturing defect, the fora below could not have ordered the replacement of the vehicle specially when the complainant has used the vehicle for four years and nine months and has run for more than 35,000 kms.  With regard to the order passed by the State Commission that the petitioner will have the liberty to refund the cost of the vehicle, if the vehicle is not replaced by a new one ; he has contended that any compensation should be determined on the basis of the loss suffered by the complainant.  In this case, the complainant having extensively used the vehicle, he could not be given the benefit of a new scooter without taking into consideration that use of four years and nine months’ old scooter would have drastically depreciated in value.  Further, if lack of mileage was his complaint, the vehicle would have consumed 188 ltr. extra petrol for the lack of performance, the cost of which comes to less than Rs.8000/-.  The State Commission, therefore, could have at best taken this amount as the loss suffered by the complainant and its order to refund the entire cost of the vehicle is not justified.  He has, therefore, submitted that the order passed by fora below be set aside.

          The respondent/complainant who has appeared in person, on the other hand has defended the order passed by the fora below and has submitted that the vehicle has been repeatedly taken to the workshop of the petitioner - 10 times in 3 months and it had never ever given a smooth ride.  When the petitioner makes tall claim of the average performance being 60 kms. per liter and their own report states that the average came to 54 kms. per liter, he contends that there was no need for any other evidence that the claim made by the petitioner is not only exaggerated but is aimed at deceiving the innocent consumer.  He, therefore, prays that petition be dismissed.

          We have heard both the parties and perused the records of the case.

          We take note of the fact that the respondent/complainant in his complaint had made half a dozen allegations against the petitioner.  But for the allegations that the vehicle did not perform @ 60 kms. per liter, all other allegations were dismissed being unsubstantiated.  On the testing of the vehicle for the mileage as already stated earlier, there are three different readings.  While the Inspector appointed by the District Forum, states that the vehicle clocked a performance of 25 kms. per liter, the performance as indicated in the job card No.1425, gave a reading of 54 kms. per liter ; yet when the independent Agency was appointed with the consent of both the parties, the reading on the road indicates that the vehicle performed @ 61.6 kms. per liter which, however, came down to 28.4 kms. per liter while passing through crowded road.  It appears that the first report indicating only 25 kms. per liter is obviously erroneous and has to be discarded.  The report as per the job cards @ 54 kms. per liter has to be taken to be a real performance in an ideal condition since it was test run in the workshop.  But it appears that it was done only by taking only 100 gm. of petrol which is too small a sample.  Of the 2^nd set of readings @ 61.6 kms. and 28.4 kms. per liter, the District Forum should not have worked out the average and taken it @ 45 kms. per liter since the claim of 60 kms. per liter has to be considered in ideal condition where the road would be smooth without any congestion of traffic requiring frequent application of brake etc.

          In our view,  the mileage of 61.6 kms. and 54 kms. per liter recorded in the job card should have been taken as the rate of real performance to the vehicle average of which works out to 57 kms. per liter.  Thus, the claim of the petitioner that the vehicle gives the mileage of 60 kms. per liter is still exaggerated, even though marginally.  In view thereof and also considering that the vehicle has been lying with the workshop of the manufacturer for the last 2½ years,  we are of the view that while there is no justification for the replacement of the vehicle with a new one ; the petitioner is directed to remove defects, if any in the vehicle, make it roadworthy and return it to the respondent/complainant and in addition pay a lumpsum compensation of Rs.25,000/- for the harassment, mental agony and loss of enjoyment.  The revision petition is disposed of in these terms.  The petitioner is directed to comply with the order within a period of one month failing which the awarded compensation will bear an interest of 12% p.a. till the date of its payment.

                                                       …………………..………J

     (R.K. BATTA)

      (PRESIDING MEMBER)

                                                                   ……………….……………

                                                        (S.K. NAIK)

                                                                            MEMBER

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