IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 13th day of October, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 352/2015 (filed on 18-12-2015)
Petitioner : Biju,
S/o. Ramanan Nair,
Cheeramkavil house,
Edamatom P.O.
Poovarany Vilalge,
Meenachil Taluk.
(Adv. K.G. Venugopal)
Vs.
Opposite parties : 1) Bajaj Auto Limited Akurdi
Pune – 411035.
Rep. by its Managing Director
2) Royal Motors,
Kalluthupallattu Building,
Mutholy Junction, Pala.
Rep. by its proprietor
Pin – 686573
(Adv. Avaneesh V.N.)
O R D E R
Sri. Manulal V.S. President
This complaint is filed under Section 12 of the Consumer Protection Act, 1986.
Case of the complainant is as follows:
Complainant purchased discover 100M motor bike from the second opposite party on 14-8-2014 by paying Rs.18,000/, which is manufactured by the first opposite party. The remaining amount has to be paid by 35 equated monthly instalments of Rs.1757. Till the date of complaint, the complainant had paid 15 installments. At the time of purchase, through the brochures published by the first and second opposite party, they promised mileage of 84 kilometer per liter of fuel and the engine will be working efficiently. Believing the promise made by the opposite parties the complainant purchased the bike and same was registered as KL 35F 2413. The said vehicle has run 27000 kilometers and all the free services were over. Now it is came to the notice of the complainant that the engine was not working properly and the actual mileage of the vehicle is below 60Km/ per liter. Though the complainant had complained about this the defects were not cured and now the second opposite party is not taking any responsibility of curing the defect. On the basis of a complaint filed by the complainant through e-mail on 12-11-2015, the complainant was called by the first opposite party’s show room at Kottayam and the vehicle was kept there for 3 days. After that they returned the vehicle, stating that the condition of the vehicle would not improve and nothing would be done. According to the complainant the product which was manufactured by the first opposite party and sold by the second opposite party had deficiency in quality and manufacturing defect.
It is averred in the complaint that there is an excess consumption of 7ml petrol per kilometre. Hence there is an excess use of 217 litters of petrol than offered by the opposite parties to cover 58000 kilometer. The complainant had spent Rs.15190 for fuel due to the lack of mileage which was offered by the opposite parties. It is further averred that due to the act of unfair trade practice by
the opposite parties the complainant had suffered much mental agony and financial loss. Hence this complaint is filed by the complainant for an order directing the opposite parties to replace the motor cycle with a new one or in alternative repay the amount remitted as price of the vehicle with interest and Rs.15190 as the value for the loss of fuel efficiency and Rs.10,000 for the compensation for mental agony.
Upon notice the opposite parties appeared before the commission and filed the version as follows:
The vehicle was extensively and continuously used for over one year and this usage itself show that the vehicle has no problem. The vehicle has no defect at all and the allegation that the engine of vehicle has got complaint is absolutely false. The complainant services the vehicle at the shop of second opposite party at Mutholy, Pala in different occasions in between 3-9-2014 and 31-12-2015
even after filing of this complaint. The mileage of the vehicle depends upon various external factors on which the opposite parties have no control, ie. The number of starts and stops of the vehicle, the road conditions, the purity of fuel used, maintenance of the vehicle driving habits of the driver etc.. The launching and marketing of the vehicle done only after the same is tested by an agency by name ARAI, an autonomous body. The mileage assured by the opposite parties is under standard driving conditions as prescribed by ARAI. If the vehicle has low mileage, it will be certainly due to the handling of the petitioner.
The service of the vehicle was not done as prescribed by the respondents. The second service was not done in any of the Bajaj Authorized service centers. The owner’s manual of the vehicle was given to the complainant and it contains
valuable instructions. The respondent have no knowledge about the opinion of the experts who inspected the vehicle , as stated in the complaint. It is averred in
the version that the warranty of the vehicle is in the boundary line and the petitioner is trying to take undue advantage by stating baseless allegations. It is further submitted in the version that during free warranty period as and when the
vehicle was received for any service, the same was provided effectively to the full satisfaction of the complainant. While availing so many services, the complainant has never complained about the fuel average of the vehicle. Fuel average of any vehicle is generally based on the standard test conditions which is an external controlled laboratory condition in which the vehicle models are tested with various parameters and one of the parameter is constant speed at 30 kmph or 40 kmph etc and in all these range this vehicle did achieve the stated mileage. There is no deficiency in service or unfair trade practice from the part of the opposite parties. The vehicle manufactured by the first respondent is not having any manufacturing defect and is free from all defects. The complainant is not entitled for any relief sought.
Evidence part of this case consists of depositions of Pw1, Pw2 and DW1 and Dw2 and exhibits A1 to A6 and C1 commission report. No documentary evidence from the side of the opposite parties.
Both parties filed argument notes.
On evaluation of complaint, version and evidence on record we would like to consider the following points.
- Whether the vehicle has any defect including manufacturing defect?
- Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties?
- If so what are the reliefs?
Point No1.
There is an un disputed fact the complainant had purchased a Discover 100M Bajaj Motor bike from the second opposite party, which is manufactured by the first opposite party. The specific case of the Pw1who is none other than the complainant, is that though the opposite parties through the exhibit A1 brochures
promised mileage of 84 kilometer per liter of fuel and the engine will be working
efficiently, however the engine was not working properly and the actual mileage
of the vehicle was below 60Km/ per liter. This allegation of the Pw1 was resisted by the opposite parties stating that the mileage of the vehicle depends upon various external factors like the number of starts and steps of the vehicle, the road
conditions, the purity of fuel used , maintenance of the vehicle driving habits of the driver etc. on which the opposite parties have no control. In order to prove his
case the complainant filed a petition to appoint an expert commissioner to examine the subject vehicle and the same was allowed by this commission. The expert commissioner who is having the qualification of B.Tech in automobile engineering and M.Tech in machine designing has filed the C1 report. Pw2 who is the expert commissioner would depose that he had tested the vehicle after complying all optimum conditions. Pw2 further deposed before the commission
that the vehicle was only having a mileage of 58Km/pl and there is no possibility
to get the mileage of 84 Km/pl which was offered by the company. Pw2 who is the expert commissioner has reported in the C1 report that the engine condition of the vehicle is pathetic and the engine is not giving expected or specified fuel mileage. It is further stated in the report that the oil consumption of the vehicle is
more than the limit and even if the engine is overhauled , no assurance can be given for mileage as well as the performance of the vehicle. He categorically stated that the probable solution is the replacement of the vehicle of engine with
a brand new engine or if it is not available replacement of vehicle with a new model. During the cross examination Pw2 deposed that he tested the vehicle with the help of a rider who is provided by the company. He further deposed that he had tested the riding condition of the complainant also. Dw1 who is the Service Manager of the second opposite party deposed that he was present at the time of inspection and the technician who rode the vehicle during the inspection is an expert technician of the second opposite party. During the cross examination Pw2
deposed that the dismantle of the engine requires only to ascertain the reason for
the abnormal sound from the engine and other defects which he had reported in
exhibit C1 does not require the inspection by dismantling engine. In examination in chief he deposed that if the head of the engine is dismantled the seating of the gasket will lose and it requires the replacement with new gasket. The learned counsel for the opposite parties argued that there is no conclusive finding in exhibit C1 report stating that the vehicle has manufacturing defect. But
during the cross examination the expert commissioner answered to the question
about the parts of the vehicle which were having manufacturing defects as these
defects could be either by manufacturing defect or by service defect. It is pertinent
to note that the expert commissioner did not rule out the chances of manufacturing
defect to the parts of the engine of the vehicle. Though the expert commissioner
was elaborately cross-examined nothing was elucidated to discard the findings in
exhibit C1.
Dw1 deposed that as per exhibit A4 owner’s manual the mileage prescribed for the second service in between 4500 to 5000 Km. He further deposed that as per exhibit A3 cash bill the second service of the vehicle was done at a mileage of 4575 kilometer and it was properly done as per the direction of Exhibit A4. Therefore the contention of the opposite party that the vehicle was not properly serviced is not sustainable. On perusal of exhibit A3 (a) job cards we can see that on 25-6-2015 and on 28-10-2015 the complainant raised the complaint regarding the low mileage and it was entered that the mileage was tuned. In job card dated 28-10-2015 it was recorded that the mileage tested before was 5.6 km/pl and after service the same was 7.3Km/pl. exhibit A2 is the email dated 12-11-2105 sent by the complainant regarding the law fuel efficiency of the vehicle and by reply mail dated 14-12-2015 the customer care department of the first opposite party stated that the grievances of the complainant is properly attended. Moreover Dw1 admitted that the complainant had contacted him several times with the complaint of law fuel efficiency of the vehicle. Therefore we are of the opinion that though the complainant had complained about the law fuel efficiency of the vehicle the opposite parties did not cure the defect and was unable to ensure the mileage of 84 km/pl which was promised by them at time sale of the vehicle to the complainant. On the basis of the above discussion and exhibit C1 we can see that the engine condition of the vehicle is defective and not with specified fuel mileage.
Point number 2 and 3
As discussed above the opposite parties through the exhibit A1 brochures
promised mileage of 84 kilometer per liter of fuel and the engine will be working
efficiently. On perusal of exhibit A1 which is the brochures published by the first opposite party we can see that they promised the mileage of 84 km/pl. there was comparison with the vehicles of other manufactures with the Discover 100M model with regarding the power of engine and mileage. On a mere reading of Exhibit A1 a common man would under the impression that the Discover 100M
model motor bike have more fuel efficiency and power than other motor bikes
which were available in the market. It is pertinent to note that in the small brochure it is printed as “the new truth of mileage 84 Km/pl”. thus we are of the opinion that the opposite party has promised the mileage of 84 km/pl by publishing Exhibit A1 . On perusal of exhibit A1 broucher we can see that at the bottom of A1 against the astrick mark it was printed as “ as per data published by
zigwheel/times of india”. However in exhibit A1 the astrcik symbol is printed beneath the name of another model Discover 150F and not beneath the name of odel Discover 100M which was purchased by the complainant. More over exhibit
A1 does not contained any direction to the standard parameters which the rider must follow to attain the mileage of 84km/pl as promised by the first opposite party.
Section 2(1)(r) of the consumer protection act 1986 defines unfair trade practice
as “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, usage or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any or the following practices, namely:-
(1) the practice of making any statement, whether orally or in writing or by visible representation which,-
(i) falsely represents that the goods are of a particular standard quality, quantity, grade, composition, style or model”.
Thus we are of the opinion that the opposite parties have committed unfair trade practice by selling Discover 100M motor bike to the complainant which had no mileage as promised by them through the publication of Exhibit A1. The opposite parties are also committed deficiency is service not only by selling a motor bike which have a defective engine but also by not curing the defect of the engine to achieve the mileage which was offered by them.
Next question to be answered is what are the reliefs entitled by the complainant. It is stated in the proof affidavit of the Pw1 who is non other than the complainant that he had paid Rs.18000/- at the time of purchase of the vehicle and after that Rs. 54378 as equated monthly installments towards the price of the motor bike .
Thus we can see that the complainant had paid Rs.72,372/- for the consideration of the vehicle. The opposite parties neither disputed this amount nor adduce any evidence to prove how much amount was received by them as the price of the vehicle. Pw2 who is the expert commissioner reported in exhibit C1 report that the probable solution to redress the grievances of the complainant is the replacement of the vehicle of engine with a brand new engine or if it is not available replacement of vehicle with a new model. He further reported that till the date of his inspection the complainant had incurred a loss of Rs.17825.64 as expense for the fuel. He had arrived at this conclusion by taking an average price of Rs. 70per liter during that period. No doubt the complainant had suffered much mental agony and financial loss due the unfair trade practice and deficiency in service which were committed by the opposite parties by selling a motor bike which has defective engine without having the quality and standard to provide the mileage offered by the opposite parties. Opposite parties are jointly and severally liable to compensate the loss suffered by the complainant.
In these circumstances we allow the complaint and pass the following order,
- We hereby direct the first opposite party to replace the discover 100M motor bike bearing reg, no KL. 35F 2413 with a new defect free vehicle of similar description or in alternative to pay Rs.72,372 to the complainant.
- We hereby direct the opposite parties to pay Rs.17825, as the value of fuel which the complainant had incurred due to the low fuel efficiency of the vehicle.
- We hereby direct the opposite parties to pay Rs.5000/- to the complainant as compensation for the mental agony caused due to the unfair trade practice and deficiency in service by the opposite parties.
The Order shall be complied within 30 days from the date of receipt of this order failing which the awarded amounts will carry 9% interest from the date of this order.
Pronounced in the Open Commission on this the 13th day of October, 2021.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R, Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of complainant
Pw1 – Biju C.R.
Pw2 – Tisson George Michael
Witness from the side of opposite party
Dw1 – Jayakrishnan
Dw2 – Salas C Sebastian
Exhibits marked from the side of complainant
A1 – Advertisement (brochure) of Discover 100 bike
A2 – Printout of E-mail dtd.12-11-2015
A3 series- Invoice and Quick repair card from Royal Motors
A4- Owner’s Manual (Bajaj Discover 100M)
Commission Report
C1 – Commission report from Tisson George
By Order
Senior Superintendent
