Complaint filed on: 12.09.2016

                                                                                                                             Complaint Disposed on:29.06.2017

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.

COMPLAINT NO.97/2016

DATED THIS THE 29^th DAY OF JUNE 2017

:PRESENT:

HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT

HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER

HON’BLE SMT H. MANJULA, B.A.L., LL.B., - MEMBER

COMPLAINANT:

Sri.Anath Raj H.R.,

S/o Rangappa,

R/o Near B.S.N.L Tower,

1^st Stage, Kalyana nagar,

By-pass Road, Chikmagalur.

(By Sri/Smt. S.Prakash, Advocate)

V/s

OPPONENT:

1. The Manager,

    J.K. Motors, H.G.S Complex,

    Opp.Darga, Mallandur Road,

    Chikmagalur.

2. The Managing Director,

    Mahindra Two Wheelers Ltd.,

    M.I.D.C. Plot No.18/2(part),

    D-1 Block, Pune.

(OP No.1 - Inperson)

(OP No.2 By Sri/Smt. D.Druvanarayana, Advocate)

By Hon’ble President Sri. Ravishankar,

:O R D E R:

The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against OP Nos.1 and 2 alleging unfair trade practice in giving false assurance about mileage of the motor bike sold by them. Hence, prays for direction against Op Nos.1 and 2 to repay an amount of Rs.65,038/- which was paid towards purchase of the motor bike along with  compensation of Rs.25,000/- for unfair trade practice.

2.     The brief facts of the complaint is that:

        The complainant had purchased one two wheeler of Centura Disk 110 cc bike from Op No.1 by paying Rs.65,038/- and registered into his name as KA-18-EC-1780. At the time of delivery of the motor bike the Ops assured that the bike is going to give 85.4 Kms. mileage per litre and in this regard Op Nos.1 and 2 also published a paper advertisement in the local newspaper stating that the Centura Disk bike is having the mileage of 85.4 Km per liter. Believing  said advertisement and assurance given by Op No.1 the complainant had purchased bike on 06.06.2015. After purchase of the motor bike the complainant noticed that it was not giving the said mileage as assured by Op No.1. The complainant immediately approached Op No.1 and intimated the said defect of the bike, but Op No.1 had given an assurance that the bike is going to give assured mileage after the first service. Accordingly, complainant had taken the first service from Op No.1, even after the first service the mileage was come down to 55 Km per litre. Again complainant approached Op No.1 about decreased mileage of the bike. For which Op No.1 again assured that the mileage will gradually increased after the second service, even after the second service also the bike was not giving the mileage as assured by Op No.1 and as per the paper publication. Hence, there is a defect in the motor bike. The complainant had availed a loan from Mahindra Finance in order to purchase the said motor bike.

        The Op No.1 and 2 have not rectified the defect with respect to the mileage of the motor bike nor replaced the bike. Complainant on several occasions approached Op No.1 in order to improve the mileage, but Op No.1 not rectified the mistake. Hence, Op Nos.1 and 2 rendered unfair trade practice in giving a false assurance with respect to the mileage of the motor bike sold by them. 

        Finally, complainant issued a legal notice and called upon the Ops to repay the amount of Rs.65,038/- which was paid by complainant for purchase of the motor bike along with compensation for unfair trade practice. Even inspite of receipt of the legal notice also instead of refunding the amount Op No.2 had issued untenable reply, but Op No.1 not answered to legal notice. Hence, complainant filed this complaint alleging unfair trade practice on the part of Op No.1 and 2 and prays for refund of the amount paid towards purchase of the motor bike along with compensation as prayed above.

3. After service of notice Op No.1 appeared in-person and not filed any version and Op No.2 appeared through his counsel and filed version.

4. Op No.2 in his version has contended that this Op is Mahindra two wheelers limited, a company duly incorporated under the provisions of Companies Act, 1956 and having its registered office at Mahindra Towers, P.K. Kurne Chowk, Worli, Mumbai Maharashtra and renowned manufacturer of various types of scooters and motorcycles and is widely acclaimed for its class and quality. The motor bike manufactured by this Op pass through stringent quality checks and road trials before the actual commercial production starts and the scooters and motorcycles are marketed only after being approved by the Automotive Research Association of India (ARAI). The motorcycles manufacture by this Op is also thoroughly inspected for control systems, quality checks and test drive before passing through factory works for dispatch to the authorized dealers appointed on a principal to principal basis for sale of the scooters and motorcycles.

        The complainant has filed this complaint by abusing the process of law and is not maintainable as the complainant has approached this Hon’ble Forum by suppressing the material facts. The complainant had made allegations on vague, baseless with malafide intentions.

Op No.2 further contended that, the motorcycle purchased by the complainant is a well established product in the market and over a period of years, the consumers are using the product and the complainant had taken delivery of the motorcycle, after being satisfied with the condition of the motorcycle and its performance. It is submitted that the said motorcycle was delivered after carrying out of Pre-Delivery Inspection (PDI) by the dealer. In this regard, it is pertinent to state that all motorcycles manufactured by this Op are marketed only after the prototype of the motorcycle being approved by the Automotive Research Association of India (ARAI). All the motorcycles manufactured in the plant of this Op are put through stringent control systems, quality checks and test drives by the Quality Assurance Department before being cleared for dispatch to the market. Every motorcycle manufactured at the plant of this Op undergoes various quality control tests till the assembly line and thereafter it is made ready for dispatch. Further, it is stated that after being dispatched to the authorized dealers of the Op, the said dealers carry out Pre-Delivery Inspection (PDI) of all new motorcycles before selling it to customers as per the standard check list. Further, whenever any motorcycle reports to a workshop for scheduled services or for any repairs, the complaints/grievances of the customer are recorded in the job card, which do not imply admission of any defects in the motorcycle, but a mere representation of the customer’s grievances on the said motorcycle. Thereafter standard checks are carried out at the workshop and observation is recorded by the Service Advisor on the backside of the job card. It helps the concerned workshop to provide necessary consultancy/advise regarding the condition of the motorcycle to the customer. The motorcycle is checked at the workshop by the Quality Inspector (Q.I.) and by Diagnostic Expert cum Trainer (DET) during pre and post repairs to ensure quality workmanship. The Service Advisor of the workshop who interfaces with the customer, is adequately trained to provide proper job explanation of the works carried out and even provides test drive to the customer at the time of delivery of the motorcycle after every service/repairs to the entire satisfaction of the customer. The motorcycle as attended by the Ops dealers/service points fully comply with the warranties, assurances and specifications, provided for it by the manufacturer, regarding quality and performance of the motorcycle. Hence, there can’t be any complaint of deficiency of service against this Op by the complainant and the complaint deserves to be dismissed with cost.

        Op No.2 further contended that, in the course of usual business there might be some advertisement in print and electronic media, but final decision to purchase bike was made by complainant on his own. The motorcycle manufactured by this Op undergo strict quality checks, certified and thereafter dispatched to the dealers across the country. The motorcycle sold at the dealership point also undergoes pre-delivery inspection and being satisfied with the condition and performance of the motorcycle, it was sold to the consumers and in this case also, the said process ought to have followed by Op No.1 and this Op has been further given to understand that there was no problem with the motorcycle at the time of delivery and the complainant has taken the delivery of the motorcycle after proper inspection and satisfaction. Hence, there is no any manufacturing defect found in the motor bike.

Op No.2 further contended that the motor bike of the complainant was reported for the 1^st time on or around 01.07.2015 at 750 Kms for 1^st free service, the bike was serviced satisfactorily and the complainant has not given any complaint with respect to the performance of the motor bike. Thereafter the motor cycle was reported for 2^nd service on or around 11.01.2016 at 3,000 Kms, wherein recommended service was done satisfactorily. No complaints were reported or were observed at the time of 2^nd service also. Thereafter on 02.02.2016 at 3,759 Kms. the vehicle was reported for 3^rd service with the issue of low mileage and it was resolved by doing mileage test 1^st without tuning the carburetor and it was found that the motorcycle gave 5.6 Kms. for 100 ml. fuel i.e., 56 Kms per liter. It was noticed that there was a low air pressure in front and rear tyre of the motorcycle, which clearly goes to show that the complainant had not maintained recommended tyre pressure in the tyres of the vehicle. Thereafter by correcting the tyre pressure the 2^nd test was conducted by replacing and tuning the carburetor with 100 ml. fuel and it was observed that the vehicle gave 6.1 Kms. for 100 ml. fuel i.e., 61 Kms per litre when the complainant rode the motor cycle. Later 3^rd and 4^th test was also conducted by making the technician to ride the motorcycle and it was observed that the motor cycle gave 71 and 77 Kms. per litre respectively. The complainant took the delivery of the vehicle by satisfactorily the performance of the motorcycle and complainant also signed the satisfaction note at the time of taking delivery. There afterwards on 08.09.2016 the complainant reported the vehicle for service at 8,509 Kms and also gave complaint with respect to the poor mileage, low pick up and valve sound. The bike was tested again by correcting tyre pressure and mileage test was conducted without tuning the carburetor, it was observed that the vehicle gave 63 Kms per litre during complaint and it is noticed that while driving by the technician after tuning the carburetor the bike gives the mileage of 70 Kms. per litre, again the complainant took the bike by satisfactorily and signed the satisfaction note as per the job card.

        Therefore, it is cleared that there is no any manufacturing defect or poor mileage as alleged by complainant. There is a negligence on the part of complainant in maintaining the correct air pressure in the tyres and due to riding pattern of the complainant the bike is giving low mileage. At the time of delivery of the motorcycle they have given to understand that the motorcycle during every periodic service it was explained to the complainant that 85 Kms per litre is under Standard Test Conditions as per the ARAI and therefore, the complainant will get 60 Kms. per liter based on the road condition, driving habit and the other parameters related to the vehicle like tyre pressure etc. At the time of every service the complainant has been provided exceptional service by the workshop and motor cycle in question has been repaired to the satisfaction of the complainant every time. Therefore, there is no any unfair trade practice on the part of this Op. Hence, prays for dismissal of the complaint.

5. Complainant filed affidavit and marked documents as Ex.P.1 to P.9 and Op No.1 and 2 not filed any affidavits.

6.     Heard the arguments.

7.     In the proceedings, the following points do arise for our consideration and decision:

1. Whether there is a unfair trade practice on the part of OPs.
2. Whether complainant entitled for any relief & what Order?

8.     Our findings on the above points are as follows:-

1. Point No.1: Negative.  
2. Point No.2: As per Order below. 

: R E A S O N S :

POINT NOs. 1 & 2:

9. On going through the pleadings, affidavit and document produced by both complainant and Ops, there is no dispute that complainant had purchased one two wheelers Centura Disk 110 CC bike from Op No.1, which is manufactured by Op No.2 by paying an amount of Rs.65,038/-. He purchased the said vehicle believing the advertisement in the local news paper and also assurance given by Op No.1 with respect to the mileage that the bike would give 85 Kms. per litre, but after purchase he noticed that the bike was not giving the mileage as assured by Op No.1 and advertisement. At the time of 1^st service he complained with respect to the mileage and even after the service the bike was not giving good mileage as assured by Op No.1. Hence, alleges unfair trade practice on the part of Op No.1 in selling a defective motor bike and giving false assurance and advertisement with respect to the mileage of the motor bike.

10. On contrary, Op No.2 has taken a contention that, the bike manufactured by their company have undergo quality checks and test drives before passing through factory works for dispatch. There is no any manufacturing defect in the motor bike sold by them and the complaint with respect to the mileage was rectified by the service personnel of the Op No.1 and 2 and test drive was conducted by tuning the carburetor and it was shown to the complainant that after services and tuning the carburetor the bike was giving mileage up to 72.71 Kms. per litre, complainant also satisfied with the mileage and taken the delivery. Op further contended that there is negligence on the part of complainant in maintaining the vehicle and the mileage depends upon the tyre pressure and driving habit of the person, who rides the vehicle. Hence, submits no unfair trade practice on the part of them.

        During course of trial, a learned advocate for complainant had cited one decision reported in CPJ 2017 para 2 page 105 Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla, Yogeshwar V/s. Saluja Motors Private Ltd. & Another as below:

Consumer Protection Act, 1986 – Sections 2(1)(g), 2(1)(r), 14(1)(d), 15 – Motor Vehicle – Purchase of Ford Car – Lured by advertisement of good mileage – low mileage  -Misleading advertisement – Expert report – Dealer’s liability – Deficiency in service – Unfair trade practice – District Forum dismissed complaint – Hence appeal – Mileage of vehicle shown in advertisement is 21.27 kilometres per litre but factually mileage of vehicle is proved as 15.97 Kms. per litre as per Local Commissioner Report – No explanation given by dealer as to how his phone number figured in advertisement – There is no evidence that consent of manufacturer was taken for advertisement – Dealer cannot exercise unfair trade practice for purpose of increase his sale by way of advertisement – Dealer used unfair trade practice by way of misleading advertisement – Directions issued to pay compensation – Costs @ Rs.3,000 granted.

And submitted that in this case also there is a false assurance and false advertisement given by Op Nos.1 and 2 to promote their sale of the bike, whereas the bike was not giving the mileage as assured. Hence, prays for refund of the entire amount paid towards purchase of the motor bike. But we are of the opinion that the decision quoted by complainant is not applicable to this case, because the complainant has not made any attempts to bring the motor cycle for laboratory test or to appoint any experts to inspect the vehicle for the mileage test. In the absence of such materials or documents we cannot conclude that the motor bike purchased by complainant is giving poor mileage, the complainant even has not produced any documents during his evidence to establish that the motor bike is giving a low mileage. At the same time we noticed that the motor bike before released to market for sale they have undergone different tests and approval and we are of the opinion that the mileage of the any vehicle is depends upon the driving patterns and maintenance. Hence, we found there is no any unfair trade practice on the part of Op Nos.1 and 2 in selling a motor bike to the complainant and at the same time complainant failed to establish the allegations against Op No.1 and 2. As such the complaint is liable to be dismissed and for the above said reasons, we answer the above point no.1 and 2 in the Negative and proceed to pass the following:-  

: O R D E R :

1. The complaint filed by the complainant is hereby dismissed.  No order as to costs.
2. Send free copies of this order to both the parties.

(Dictated to the Stenographer transcribed typed by her, transcript corrected by me and then pronounced in Open Court on this the 29^th day of June 2017).

  (B.U.GEETHA)         (H. MANJULA)      (RAVISHANKAR)

       Member                   Member                 President

ANNEXURES

Documents produced on behalf of the complainant/S:

Ex.P.1              - Reply to the legal notice.

Ex.P.2              - Office copy of the legal notice.

Ex.P.3              - Postal Acknowledgment due.

Ex.P.4              - Loan ledger extract.

Ex.P.5              - Paper publication dtd:13.01.2016.

Ex.P.6              - R.C. copy.

Ex.P.7              - Receipt.

Ex.P.8              - Broacher of the Op.

Ex.P.9              - Users manual.

Documents produced on behalf of the OP/S:

NIL

Dated:29.06.2017                         President 

                                        District Consumer Forum,

                                                  Chikmagalur.            

RMA