Before the District Forum, KURNOOL
Present: Sri K.V.H. Prasad, B.A., LL.B., President
And
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B.Com. LL.B., Member
Thursday the 31st day of July ,2003
C.D.No.46/2002
S.Swamy Reddy,
S/o Subba Reddy.
H.No.27/25A, Moolasagaram,
Nandyal-518502,
Kurnool District. . . . Complainant represented by his
counsel Sri.C.Nagendranath
-Vs-
1. The Kinetic Engineering Limited,
Regd., Office, D1 Block,
Plot No.18/2,
Chinchwas, Pune-411 019. . . . Inperson
2. Sri Durga Automotives,
D.No.50/760-A-114, Gooty Road,
Kurnool. . . . Opposite party no.2 represented by his
Counsel Sri.K.Kapileswaraiah.
3. Sri.Durga Automotives,
Nandyal, N.K.Road,
Kurnool District. . . . Inperson
O R D E R
1. This consumer dispute case of the complainant is filed under section 12 of the C.P. Act seeking direction to the opposite parties to fulfill the commitment published in the broucher as to fuel consumption of the vehicle at 93 Kms per liter duly replacing the requisite spares to the vehicle in default to refund the complainant the amount paid as to the cost of the said vehicle with 24% per annum from the date of purchase till the date of its realization, to return the post dated cheques submitted to the opposite parties financiers, to return the maintenance charges incurred due to low milage at 40 Kms per liter, till the disposal of the matter, to pay Rs.1,000/- towards mental agony and costs of the case and such other reliefs which the complainant may be awarded in the exigencies of the case.
2. The brief facts of the complainant’s case, as per his invalid complaint which is wanting the due verification of its contents by the complainant, are that the complainant having been attracted by the news paper advertisement and the broucher issued by the opposite party No.1 as to the fuel consumption of Kinetic challenger Motor Cycle at 93 Kms per liter, the complainant purchased the said vehicle bearing chassis No.CB50009505 and Engine No.CB50009332 from the opposite party No.2 vide invoice No.1977 dated 01.03.2001 under finance provided by M/s Kinetic Financers Limited, Kurnool at Nandyal and the said vehicle was registered at the RTO Office, Nandyal as AP21 D 7083. The said vehicle was taken for periodical servicing to the opposite party No.3 at Nandyal and as to low milage complaint. He was made to believe by the Mechanic of the opposite party No.3 that it shall improve after periodical services. But even after the said periodical services the milage of the aid vehicle did not improve beyond 40 Kms per liter and he did not got the milage at the 93 Kms per liter. He learnt from the other purchasers of the same type of the vehicle that the said kinds of vehicles are giving milage in between 35 to 45 Kms per liter. The opposite party No.3 replaced the chassis which was broken within 4 months of the purchase of the said vehicle. His complaint to the opposite party on 12.12.2001 was not responded by the opposite party. Hence a legal notice dated 18.01.2002 was issued on the opposite parties. The opposite party No.2 only replied to it on 18.01.2002 that the opposite party No.2 never promised the complainant as to the fuel consumption of the vehicle as 93 Kms per liter at any time and the transmission of the complainant’s complaint on 12.12.2001 to the opposite party No.1 for necessary disposal. The above said circumstances and the conduct of the opposite parties is ensuing loss on maintaining the said vehicle and hence the complainant is constrained to resort to the Forum for the redressal of his grievances.
3. The complainant encloses to the complaint the following documents Viz., Xerox copy of the brouchers in Telugu of the Kinetic Challenger with its future as to fuel consumption etc., Xerox copy of the invoice No.1977 issued by the opposite party No.3 the Xerox copy of the registration copy of the vehicle bearing No.AP21 D 7083 issued by the RTO, Nandyal, written complaint dated 12.12.2001 addressed to the opposite party No.3 (Xerox copy), office copy of the legal notice dated 09.01.2002 addressed to the opposite parties 1 and 2, postal acknowledgement dated 11.01.2002 signed by the opposite party No.2 in receipt of legal notice in serial No.5, postal acknowledgement signed by the opposite party No.1 in token of the receipt of the legal notice, reply notice sign by the opposite party. The complainant did not file any of his sworn affidavit or of the affidavits of such persons on his side in substantiation of his case and documents and as mere filing of the documents does not dispense with their proof by cogent means they are not marked as exhibits.
4. In pursuance of the receipt of the notice of this Forum as to this case the opposite parties 1 and 2 filed their written version in defence of the complaint averments and to contest the complainant’s case and the opposite party No.3 remained absent to the proceedings refusing he notice and did not contest the matter by filing any of his written version.
5. The written version of the opposite party No.1 filed by its authorized signature denying the complaint averments as to the performance of the said Motor Cycle and the services rendered to the said vehicle by the opposite parties, allege the purchase of the said Motor Cycle bearing No.AP21 D 7083 from the opposite party No.2 on 01.03.2001 after his due satisfaction of its performance as it is free from any manufacturing defect and put to a continuous use by the complainant more than a year with a daily average run of 30 to 35 Kms per day as per the K.M. reading noted in the job Card No.000762 dated 19.02.2002. The complainant was rendered satisfactory services to the said vehicle and at times making replacement of certain parts also as the circumstances demand and his taking the delivery of the vehicle at all times satisfying of the condition of the said vehicle. The opposite party offers the inspection of the complainant’s vehicle by its competent service engineer at the opposite party No.2 work shop free of cost within warranty period and at cost thereafter of the alleged complaints causing necessary repairs and replacement of certain parts which may warrant such replacement if the complainant produces the said vehicle with due advance intimation it further submits the fuel efficiency advertised to the said vehicle is under standard ideal test conditions and not on the road and no such promise was made at any time to that extent and the complainant’s vehicle during various test rides proved fuel efficiency on different road conditions from 54 Kms per liter to 74 per liter and the milage of 70 Kms per liter on road under economical speed riding at 35 to 45 Kms per hour and the driving of the vehicle at a high speed or low speed will adversely affect fuel consumption. The warranty was for repairs replacement of certain parts only and not for the replacement of the very said vehicle itself and the warranty assurances were fulfilled to the extent permissible. It further submits that the fuel efficiency of the vehicle depends upon may factors and circumstances which are beyond the control of eh manufacturer such as road and driving condition, quality of oil and petrol used, tyre pressures maintained, individual driving habits and proper maintenance of the vehicle in compliance of manual instructions, traffic conditions, frequent use of clutch and break and the frequency of stops and starts load carried on the vehicle. The complainant has taken delivery of the vehicle after due services satisfying of the redressal of the complaints as per the job card and issuing satisfactory letters dated 21.04.2001 and 13.11.2001 and hence the allegations as to the said vehicle made by the complainant are baseless and false especially when the complainant has not established the any manufacturing defects nonetheless the considerable defect resorting to the procedure laid down under section 13 (1) of the C.P. Act by getting examined the said vehicle by competent technical experts of the Government Laboratory such as by Automotive Research Association of India, Pune or vehicle Research and Development establishment, Ahamadnagar and getting any report as to the defect in the said vehicle. The complainant’s case being short of proper cause of action and substantial proof of the alleged defect and losses not entitled to the reliefs sought and hence seeks for the dismissal of the complaint with costs.
6. The opposite party No.1 encloses to his written version the following documents Viz., (1) an extract of terms and conditions of the warranty and copies of relevant job card (un-attested Xerox) (2) un attested Xerox copy of instructions of the Owner’s Manual (3) un attested Xerox copy of the satisfactory letter dated 21.04.2001 and 13.11.2001. Neither any sworn affidavit in substantiation of its contentions was failed by the opposite party, nor any original documents or their attested copies were filed in proof of and made even to prove them by any cogent means. As mere filing of the documents does not dispense their proof, by cogent means the above said documents are not marked as exhibits.
7. The written version of the opposite party No.2 besides the questioning the justness and maintainability of the complainant’s case deny the allegations of the complaint as to the purchase of the vehicle by the complainant being inspired by the advertisement as to the fuel efficiency of the said vehicle but on his satisfaction of the said vehicle in reference of its manual book which does not envisage anywhere as to its fuel efficiency as 93 Kms per liter. It alleges that the complainant never complained of any low milage when the vehicle was rendered services. The opposite party No.3 being branch of the opposite party no.2 it submits further the notice dated 12.11.2001 of the complainant was suitably replied by the opposite party No.2 forwarding the complainant’s complaint to the opposite party No.1 for further necessary disposal. It lastly submits the liability of the opposite party No.1 only if at all as it is the manufacturer and gave the advertisement as to the fuel efficiency and thus disowns of any of its liability to the complainant and seeks the dismissal of the complaint with costs. The sworn affidavit filed by this opposite party merely reiterates the contents of its written version.
8. Hence, the point for consideration is whether the complainant has made out any manufacturing defect or any defect worthy of consideration in the vehicle purchased by him and the deficient conduct of the opposite parties towards him in relation to the said vehicle and thereby any of his entitleness to the reliefs sought?
9. The complainant except averring several matters in his invalid complaint did not made any endeavour to substantiate them by filing any supporting affidavit of his or of any other person on his behalf in know of the matters. Nor did the complainant proved the documents by filing their originals or their attested copies and by filing any supporting affidavit in proof thereof. The more filing of the documents and does not dispense with its proof by cogent means and no sworn affidavit of his filed nor of any others in know the facts is filed in substantiation of his contentions the case of the complainant is not crossing the level of the mere averments, the bonafidies of which were disputed by the other side. The complainant except averring the low milage problem attributing it to the manufacturing defect did not substantiate the same by resorting to the procedure laid down in section 13 of C.P. Act by getting tested the said Motor Cycle by any approved Government Laboratory such as ARAI (Automotive Research Association of India, Pune) or by VRDE (Vehicle Research Development Establishment, Ahamednagar) and got any report of the said defect of low milage to his vehicle was arising on account of any manufacturing defect therein. The complainant’s conduct of not establishing the case inspite of the denial of the opposite parties side, the bonafidies of his cause of action and grievances, is envisaging his utter failure to substantiate his case as to any manufacturing defect or defaultive conduct of the opposite parties in rendering the entitled woeful services.
10. Therefore, the complainant, for want of substantiation of his case by any cogent acceptable means and material, he is not remaining entitled to the reliefs sought especially when there are no established terms and conditions to replace the vehicle for any inconvenience that may arise on account of the said vehicle.
11. Hence, in the result of the above discussion the complaint is dismissed and in the circumstances each of the parties to this case bears their own costs.
Dictated to the Stenographer, typed to the Dictation, corrected by us, and pronounced in the Open Court, this the 31st day of July, 2003
Sd/- Sd/- Sd/-
MEMBER PRESIDENT MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: Nil For the opposite parties: Nil
List of exhibits marked for the complainant:- Nil
List of exhibits marked for the opposite parties:- Nil
Sd/- Sd/- Sd/-
MEMBER PRESIDENT MEMBER
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