Punjab

Sangrur

CC/582/2016

Kuldeep Singh - Complainant(s)

Versus

Sukhmani Automobile - Opp.Party(s)

Shri G.S.Nandpuri

10 Mar 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.
                                

                        Complaint No.    582
                        Instituted on:    29.09.2016
                        Decided on:    10.03.2017

 

Kuldeep Singh son of Shri Harbhajan Singh, resident of House No.33, Street No.6, Shivam Colony, Sangrur.
                            ..Complainant
                    Versus
1.    Sukhmani Automobiles, Near Branch SBI Bank, Mehal Road, Sangrur through its Manager.
2.    Mahindra Two Wheelers Ltd. D-1 Block, Plot No.18/2 (Part) M.I.D.C. Pune through its Manager/GM.
                            ..Opposite parties

 

For the complainant    :    Shri G.S.Shergill, Adv.
For OP No.1        :    Shri Amit Aggarwal, Adv.
For OP No.2.        :    Shri Parul Chawla, Adv.

 

Quorum:    Sukhpal Singh Gill, President
        Sarita Garg, Member
        Vinod Kumar Gulati, Member

Order by : Sukhpal Singh Gill, President.

1.        Shri Kuldeep Singh, complainant (referred to as complainant in short) has preferred the present complaint against the opposite parties (referred to as OPs in short) on the ground that the complainant purchased a motorcycle model Centuro model Centuro-01 bearing registration number PB-13-AP-0766 from OP number 1 vide challan number 13 dated 6.4.2015 for Rs.51,850/- besides that the OP number 1 charged an amount of Rs.3859/- as processing fee and VAT.  The OP number 2 is the manufacturer of the vehicle in question.  Further case of the complainant is that at the time of its purchase, the OP number 1 assured that it will give an average of 85 KMPL and the Op number 1 advertised regarding the same through pamphlets circulated through newspapers.   Further case of the complainant is that instead of 85 KMPL, the motorcycle in question was giving an average of only 57 KMPL, though he approached the Ops on different dates to get the same checked, but all in vain.  The complainant also got served a legal notice upon the Ops, but of no use. Thus, alleging  deficiency in service on the part of the OPs, the complainant has prayed that the OPs be directed to remove the defects of the motorcycle of the complainant or change it with a new one or in the alternative to refund the amount of Rs.51,850/- plus Rs.3859/- as processing fee along with interest @ 18% per annum and further claimed compensation and litigation.

2.        In reply filed by OP number 1, it is admitted that the complainant had purchased the motorcycle in question from it, whereas the manufacturer of the same is OP number 2.  It is denied that the motorcycle will give an average of 85 KMPL and the average alleged was at the instance of OP number 2. The alleged average has been mentioned by the OP number 2 after getting the vehicle testified from an approved and authorised agency ARAI. It is further stated that the average of the vehicle depends on various factors and the average of 85 KMPL would vary at the time of driving of the vehicle on road as per the driving style of the driver, road condition  and driving motorcycle in market with heavy traffic, traffic jam conditions etc. Further case of the OP number 1 is that in fact the complainant does not want to keep the motorcycle and want to sell the same, but could not sell as he could not get the price of the vehicle as per his wishes. It is stated that the complainant has filed a false and frivolous complaint, whereas the motorcycle in question has been giving the correct average and the complaint has been filed only to harass the Ops. Lastly, the Op has prayed for dismissal of the complaint with special costs.

3.        In reply filed by OP number 2, preliminary objections are taken up on the grounds that the complainant is not a consumer. It is admitted that the complainant had purchased the motorcycle in question vide challan number 13 dated 6.4.2015, that the complainant has no cause of action to file the present complaint and that the fuel efficiency is not always achieved on regular usage, due to traffic conditions, unwanted stops and vehicle kept an idle for a long time, vehicle system abnormalities, gear shift and braking patterns. It is further stated that as per the warranty conditions, there is no provision for replacement of the vehicle or refund of the price of the vehicle under any conditions. It is stated that the complainant has not produced any technical expert report in support of his allegation about the manufacturing defect and on this ground the complaint is liable to be dismissed and that the complainant has not approached this Forum with clean hands. It is further stated that the complainant has no cause of action to file the present complaint.  On merits, the allegations levelled in the complaint have been denied in toto and further it is stated that the complainant is not a consumer.  Moreover, the fuel efficiency is declared as per the government certification tests which are mandatory for selling any vehicle in India. Certification tests are conducted inside the Govt. Laboratory under controlled environment.  It is not only in the case of this vehicle, but all the vehicles are advertised in this country in the same manner.  Under certain conditions, average of the vehicle is measured and is thus advertised. However, the condition on the road are not ideal and therefore, no vehicle gives the same average as is advertised. Thus, the intention of the complainant is malafide demanding replacement of the vehicle.  However, it has been denied that the complainant had approached the Op six times for the problem of average of the vehicle in question. Lastly, the Op has prayed for dismissal of the complaint with special costs.

4.        The learned counsel for the complainant has produced Ex.C-1 copy of bill, Ex.C-2 copy of legal notice, Ex.C-3 copy of postal receipt, Ex.C-4 copy of reply, Ex.C-5 affidavit, Ex.C-6 pamphlet and closed evidence. On the other hand, the learned counsel for OP number 1 has produced Ex.OP1/1 affidavit, Ex.OP1/2 affidavit of Baljeet Singh, Ex.OP1/3 copy of job card dated 14.9.2015, Ex.OP1/4 copy of email and closed evidence. On the other hand, the learned counsel for OP number 2 has produced Ex.OP2/1 affidavit along with Annexure R2/1 to R2/4 and closed evidence.

5.        We have very carefully perused the pleadings of the parties and heard the arguments of the learned counsel for the parties. In our opinion, the complaint merits acceptance, for these reasons.

6.        It is an admitted fact that the complainant purchased the vehicle in question from OP number 1 on 06.04.2015 for Rs.51,850/- as is evident from the copy of challan on record as Ex.C-1. In the present case, the dispute raised by the complainant is that though the Ops assured that the vehicle in question will give an average of 85 KMPL, but it does not give so.  As such, the complainant approached the OP number 1 a number of times, as is evident from the copies of job sheets itself produced on record by the Ops as Annexure R2/1 to Annexure R2/4, which clearly reveals that the average when checked by OP number 1 was found to be 63 KM on 14.09.2015, 79 KM on 14.11.2015, 57 KM on 3.8.2016.  It is worth mentioning here that the complainant has also produced on record the original pamphlet issued by Op number 1, which is on record as Ex.C-6 alluring the people like complainant to purchase the motorcycle which would give an average of 85.4 KMPL and have a warranty of five years.  On the other hand, the stand of the OP number 2 is that the fuel efficiency is being declared as per the government certification tests which are mandatory for selling any vehicle in India and the certificate tests are conducted inside the Govt. Laboratory under controlled environment.  But, we may mention that the OP number 2 has not produced on record any such government certificate issued to the OP number 2 nor there is any explanation from the side of OP number 2 that why they did not produce it on record.  The OP number 2 in its reply has stated that “...It is not only in the case of this vehicle but all the vehicle are advertised in the country in the same manner...” meaning thereby the Ops are making foolish to the innocent people to sell these type of vehicle which never gave such an average as mentioned in the pamphlet.  Moreover, the Op number 1 has failed to establish on record that at the time of checking of average on various occasion, it ever found to be 85.4 KMPL as the tests were conducted by OP number 1 itself in the presence of the complainant.

7.        Since it is an admitted case of the parties that the complainant approached the Ops for getting the average of the motorcycle checked so many times, but at any time it was not upto mark as admitted by the Ops itself, as such, the learned counsel for the complainant has contended that the OPs be directed to replace the whole of the vehicle in question with a new one or to refund the price of the vehicle along with interest.  To support such a contention, the learned counsel for the complainant has cited M/s. Palam Tractors versus Shri Jamir Ahmmed 2010(2) CPC 676 (HP State Commission), wherein it has been held that despite replacement of engine of the three wheeler, the defect could not be removed, as such, it was ordered for replacement of the engine of the vehicle and further awarded compensation for harassment. As such, we feel that the above said case law is fully applicable in the facts of the present case, as such, present complaint deserves to be allowed as it is a clear cut case of deficiency in service on the part of the OPs, as the OPs have miserably failed to set right the average of the vehicle in question.  Further the learned counsel for the complainant has cited Mahinda and Mahindra Ltd. Rudra Automobiles Pvt. Ltd. and others versus Chandan Mondal and others 2013(4) CPJ 486, wherein the complainant visited a number of times to get the tractor repaired during the warranty period and the job cards produced ample evidence to prove that the vehicle in question did have defects and complainant was put to hardship on account of that. It is futile to go into minute/extreme technicalities in order to establish whether the defects pointed out qualifies to be classified as manufacturing defect or not.  It is a hard fact that the consumer, who is a farmer, was put to a lot of mental agony, harassment by the purchase of the said defective vehicle. Hence, it was held by the Hon’ble National Commission there was no fault committed by State Commission and the impugned order of the State Commission was upheld.  The learned counsel for the complainant has further cited Malabar Motors versus K.V.Jayarajan and another 2013(4) CPJ 329 (NC), wherein it has been upheld the order of the State Commission returning the cost of the vehicle with interest and compensation as the vehicle in question was sent for repairs for number of times to the petitioner as number of defects were there.

8.        In view of our above discussion, we allow the complaint and direct the OPs to refund to the complainant the amount of Rs.51,850/-, subject to the returning of the motorcycle in question by the complainant along with necessary documents for the transfer of the vehicle in question in the name of the Ops by the complainant. The OPs shall also pay to the complainant an amount of Rs.10,000/- as compensation for mental tension and harassment and Rs.5,000/- in lieu of litigation expenses.

9.             This order of ours be complied with within a period of thirty days of its communication. A copy of this order be supplied to the parties free of cost. File be consigned to records.
        Pronounced.
        March 10, 2017.
                            (Sukhpal Singh Gill)
                               President

                                (Sarita Garg)
                                   Member

                            (Vinod Kumar Gulati)
                                   Member