26/05/15

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

            This Appeal is directed against the judgment and order passed by Learned District Forum, Alipore, South 24-Parganas in case no.CC 302 of 2013 allowing the complaint with cost of Rs.10,000/- and directing the OPs to refund the price of the vehicle, that is, the sum of Rs.4,84,971/- and compensation of Rs.5 lakh to the Complainant within one month from the date of judgment failing which interest @ 10% p.a. shall accrue from the date of default till realisation. 

            The case of the Complainant/Respondent, in short, is that the OP No.2 is the Dealer and the OP No.1 is the Manufacturer Company.  On being allured by the advertisement of Tata Motors Finance, published on 08/09/11 in the Anandabazar Patrika, the Complainant intended to purchase one petrol car “Tata Indigo – C.S. BGLX – BS4” at a price of Rs.4,28,575/- besides other relevant expenses amounting to Rs.56,396/-.  In the advertisement assurance was given that the mileage would be 25 kmpl.  The Complainant paid an amount of Rs.2,59,971/- by cheque as well as in cash on different dates and took delivery of the said car on 28/09/11.  The rest amount of Rs.2,25,000/- was financed by Tata Motors Finance for which the Complainant had to pay EMI of Rs.7,101/-.  After purchase the assurance of 25 kmpl appeared to be false.  Accordingly, the Complainant had drawn the attention of the OPs regarding such shortfall in mileage.  Mileage test drive was done on different dates and it was found as 15.24 kmpl on 29/12/11, 17.94 kmpl on 05/07/12, 17.42 kmpl on 28/09/12 and ultimately a joint test/investigation was done on 16/01/13 when it was found as 15.38 kmpl on long drive.  The assured mileage per kilometer did never reach 25 kmpl as assured by the OPs.  The Complainants served letters dated 13/01/13, 25/01/13 and 07/02/13 requesting the OPs to replace the said car of the same model, but to no effect.  Under the circumstances, the complaint was filed before the Learned District Forum. 

            It is submitted by the Learned Counsel for the Appellant that the Complainant purchased a petrol car and the assurance regarding the mileage of 25 kmpl was applicable in case of diesel car.  It is contended that there was no deficiency in service on the part of the Appellants.

            The Learned Counsel for the Respondent has submitted that the Respondent No.2 is the Dealer, but he did not prefer any Appeal against the impugned judgment and the Appeal has been preferred by the Manufacturer only.  It is contended that after necessary test the vehicle was delivered by the Manufacturer to the Dealer and the OP did not give any reply to the letter of the Complainant.  It is contended that after the shortfall in mileage was reported by the Complainant, repeated tests were done by the OPs of the complaint, but it never reached the mileage of 25 kmpl as assured in the advertisement.  It is submitted that it is an unfair trade practice on the part of the OPs of the complaint. 

            We have heard the submission made by both sides and perused the papers on record.  Annexure-1 to the Memo of Appeal is the advertisement which shows that the assurance was given about the mileage of 25 kmpl.  Nowhere in the advertisement there was any mention about petrol or diesel car.  Moreover the test reports on mileage (kmpl) are there wherefrom it appears that the mileage was 15.24 on 29/12/11, 17.94 on 05/07/12, 17.42 on 28/09/12, 15.38 on 16/01/13.  It is evident that the mileage did never reach 25 kmpl as assured in the advertisement.  It is, therefore, clear that by way of issuing advertisement regarding the mileage of 25 kmpl, the OPs of the complaint have taken recourse to deceptive trade practice with a view to promoting the sale and thereby allured the people.  The absence of classification of the petrol or diesel car goes to show that the intention was to promote the sale.  Now at the time of argument the Learned Counsel for the Appellant has contended that the assurance was given for diesel car only and the Complainant having purchased petrol car, the said assurance was not applicable.  We are unable to accept such contention of the Learned Counsel for the Appellant in absence of any paper to that effect.

            It appears that the Complainant purchased the vehicle on 28/09/11 and it is used by the Complainant.  At this stage, we are of the view that refund of purchase money would not be just and proper.  We, therefore, modify the impugned judgment and order as hereunder. 

            The Appeal is allowed in part.  The OPs of the complaint jointly and severally are directed to pay compensation of Rs.2 lakh, litigation cost of Rs.10,000/- to the Complainant within 45 days from this date failing which the interest @ 9% p.a. shall accrue from the date of default till realisation. 

            For taking recourse to deceptive trade practice by way of misleading advertisement to promote sale and alluring the people the OPs of the complaint jointly and severally are further directed to pay as punitive damages the sum of Rs.1,50,000/- to be deposited with the SCWF (WB) within 45 days from this date failing which interest @ 9% p.a. shall accrue from the date of default till realisation.  The other directions passed by the Learned District Forum are set aside.  The impugned judgment stands modified accordingly.