IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Saturday the 20th day of November, 2021.
Filed on
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.P.R Sholy, B.A.L, LLB (Member)In
CC/No.249/2018
between
Complainant:- Opposite parties:-
Sri.C.Prasanna Kumaran Unnithan 1. The Managing Director
S/o Chandrasekharan Pillai RF Motors Pvt. Ltd
Sankara Narayanam Skyline Gateway
Kappil East, Krishnapuram Apartment, Edappally
Kayamkulam-690533 Kochi-682033
(Adv. K.N.Azhakeshan) (Exparte)
2. The General Manager
RF Motors Pvt. Ltd
Skyline Gate Way
Apartment, Edappally
Kochi -6822033
(Exparte)
3. The Managing Director TATA Motors Pvt. Ltd 4th Floor, Ahura Centre 82, Mahakali Caves Road
MIDC Andheri East
Mumbai-400093
(Adv. Menon & Menon Kochi for 3rd OP)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
1. Material averments briefly stated are as follows:-
Complainant purchased one TATA Hexa- XMA 4x 2,7 STR car manufactured by 3rd opposite party from the showroom of 1st opposite party. The sales executive had assured that the vehicle is having a mileage of 14.4 KM per litre. Complainant purchased the vehicle for Rs.17,76,305/- including road tax on 27.05.17 and it was registered with number KL 29 M 8001.
2. Immediately after purchase complainant realized that the vehicle is getting only 7.25/ 7.5 Km per litre. The 1st opposite party assured a mileage of 14.4 Km/ L on all road conditions. The complainant tested the mileage on traffic and non traffic conditions but the poor mileage was continuing. Hence the complainant approached the 2nd opposite party to rectify the same or to replace it with a new one by submitting a letter on 13.07.17. As per the request of the 2nd opposite party the complainant produced the car at their workshop for verification and carried out the test drive. They requested to wait till it turns 20,000 Kms for changing the oil. At the relevant time it crossed only 16,500 Kms and it was informed to the 2nd opposite party by letter dated 01.01.2018.
3. On attaining the required kilometer the complainant submitted the vehicle with the 2nd opposite party for rectifying the defect. The vehicle had given a maximum of 8 to 8.75 Kms per liter after service and it was informed to the opposite party by a letter dtd.17.02.18. On enquiry with other dealers complainant came to know that the vehicle is having a mileage of 14 kms per liter. Complainant realized that opposite party had played fraud upon him by the unfair trade practice. The vehicle is having a mechanical defect which was concealed from the complainant. Complainant suffered damage due to the deficiency in service. He had suffered both physical and mental agony due to the bad performance of the vehicle. Hence the opposite parties are liable to pay damages. Hence the complaint is filed to exchange the vehicle or to return an amount of Rs.15,11,545/- being the value of the vehicle. Complainant is also seeking an amount of Rs.50,000/- as compensation.
4. Opposite parties No.1 and 2 remained exparte.
3rd opposite party filed a version mainly contenting as follows:-
The allegations in the complaint are denied. The present complaint is an abuse of process of law and is not maintainable against this opposite party. The complaint is vague, baseless and ill motivated. Complainant has no case that there was any deficiency in service on the part of this opposite party. This opposite party is an unnecessary party.
5. The burden to prove that the mileage is less is with the complainant. The warranty offered on every car/ vehicle manufactured by the opposite party is subject to the terms and conditions of the warranty as contained in the operator’s service book. Under the circumstances complainant cannot claim services as per the terms and conditions of the warranty policy as a matter of right.
6. The vehicle purchased by the complainant is of the highest quality and the complainant had taken delivery of the vehicle after being satisfied with quality and the complainant had satisfied with its condition and its performance. The vehicle was delivered after carrying out the Pre-Delivery Inspection (PDI). The vehicles manufactured by this opposite party are marketed only after the prototype of the car being approved by Automotive Research Association of India (ARAI). All the vehicles are through stringent control systems, quality checks and test drives by the quality assurance department. Before selling new vehicles required Pre-Delivery Inspection (PDI) is carried out. The complaint filed is baseless. Manufacturing defect is alleged without producing any expert report. This Commission has no jurisdiction to entertain, try and adjudicate the present complaint and the proper forum is civil court. This opposite party is not liable to compensate the complaint. Hence the complaint may be dismissed with cost.
7. On the above pleadings following points were raised for consideration:-
- Whether there is any deficiency of service on the part of the opposite parties as alleged ?
- Whether the complainant is entitled for replacement of the vehicle and in the alternative whether the complainant is entitled to realize an amount of Rs.15,11, 545/- being the value of the vehicle from the opposite parties as alleged?
- Whether the complainant is entitled to realize an amount of Rs.50,000/- as compensation from the opposite parties ?
- Reliefs and cost?
8. Evidence in this case consists of the oral evidence of PW1 to PW3 and Exts.A1 to A9 from the side of the complainant and the oral evidence of RW1 from the side of the opposite party. The commission report was marked as Ext.C1.
9. Point Nos.1 to 3:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A7 series A8 and A9 series.
10. PW2 was the expert commissioner in this case. On 18.02.2021 and 27.02.21 he had inspected the vehicle and prepared a report. It is marked as Ext.C1. On 18.02.2021 he drove the vehicle for 53 Kms and on 27.02.21 he drove the vehicle for 102 Kms. The mileage was 8.8 Kms.
PW3 filed an affidavit stating that he is familiar with car No. KL 29 M 8001 owned by PW1. He is also having a vehicle of the same model with registration No. KL 31 K 7700. It had run 8000 Kms and the average mileage is 14 kms. He purchased the vehicle on seeing the advertisement that the vehicle will have a mileage of 14.4 Kms. On getting knowledge that the vehicle o PW1 is not getting the promised mileage of 14.4 Kms he had driven the vehicle from Charummoodu to Thiruvananthapuram. The vehicle was only getting a mileage of 8.2 Kms. When he drove the vehicle through the national highway upto Ernakulam it was getting a mileage of 8 Kms. It may be due to the manufacturing defect of the vehicle.
11. RW1 is the customer care manager of M/s TATA motors Ltd. He filed an affidavit in tune with the version.
The substance of the evidence is discussed above.
12. As per Ext.A3 invoice dtd. 23/5/2017 PW1, the complainant purchased a TATA Hexa XMA 7 Seater vehicle for a price of Rs.15,11,545/-. As per Ext.A2, vehicle was taken delivery on 25/5/2017. Opposite parties 1 and 2 are the dealer and service centres of the vehicle and the 3rd opposite party is the manufacturer. The vehicle was registered in the name of complainant as per Ext.A5 registration certificate. According to PW1 as per Ext.A1 features of the vehicle the company had offered a mileage of 14.4km/ltr. However the complainant was not getting that much mileage and he was getting only a mileage less than about 8 Km. Accordingly on 13/7/2017 he sent Ext.A6 letter to the 1st opposite party informing that he is only getting a mileage between 7.25 to 7.50 Kms and requested to make necessary arrangement to rectify the defect. It was also informed that during negotiations sales executive offered that the car will get a mileage of 14 Kms/ ltr. Since there was no action on 1/1/2018, he again send Ext.A7 letter to the 1st opposite party stating that even after oil change as per their advice he is not getting mileage to a satisfactory level. Again on 17/2/2018 he sent Ext.A8 letter informing that the mileage is only 8.7 Kms range against the assured mileage of 14 Kms / ltr. On 5/6/2018 Ext. A9 letter was sent informing that inspite of repeated letters the complaint was not resolved. Finally since the matter was not settled on 26/9/2019 this complaint was filed alleging deficiency of service against opposite parties. Opposite parties 1 and 2 who are the dealers and the service center remained exparte and the 3rd opposite party manufacturer filed aversion mainly contenting that the mileage of the vehicle will depend upon various factors. It was contented that the relationship between opposite parties 1 and 2 and 3rd opposite party is principle to principle basis. They contended that the vehicle was delivered after carrying Pre-delivery Inspection (PDI) and the vehicle was approved by Automotive Research Association of India (ARAI). They contended that they are noway liable or responsible to compensate the complainant. Complainant got examined as PW1 and Ext.A1 to A9 series were marked. The expert commissioner was examined as PW2 and Ext.C1 was marked. One witness was examined as PW3. From the side of the opposite party the customer care manager of the 3rd opposite party was examined as RW1.
13. The case of PW1 is that at the time of negotiations the executives of opposite parites 1 and 2 offered that the vehicle will have a mileage of 14 Kms/ ltr. It is a diesel vehicle. Further he has produced Ext.A1 the features of the vehicle down loaded from the internet from which it is revealed that mileage of the vehicle (ARAI) is 14.4 Kms/ltr. However PW1 was getting mileage less than 8 Kms/ltr and that is why he had sent Ext. A6, A7, A8 and A9 letters. As per the request of the complainant an expert was appointed to check the mileage. Accordingly after giving notice to both sides on 18/2/2021 he checked the mileage. On that day for running 53 Kms 4.5Ltrs of diesel was required and so the vehicle had a mileage of 11.77 Kms. Thereafter on 27/2/2021 he again checked the mileage and on that day for running 102 kms 11.47 ltrs of diesel was required so the mileage was 8.89 Kms/ltr. PW3 is also an owner of the similar vehicle bearing Reg. No. KL.31-K-7700/-. He was getting a mileage of 14 Kms/ ltr. He droves the vehicle of the complainant and it was getting only a mileage of 8.2 Kms. RW1 admitted that as per ARAI specification the mileage is 14.4 Km/Ltr. According to him there was no complaint by the complainant about the mileage before filing the complaint. But such a contention cannot be swallowed without a pinch of salt why because Ext.A6 to A9 letters were sent to the manager RF Motors Pvt. Ltd. Edappally, Kochi, who is the authorized dealer and service centre with the 3rd opposite party TATA Motors. In the normal circumstances the dealer will inform such a complaint to the manufacturer.
14. Relying upon the evidence on record the learned counsel appearing for the complainant contented that the case is proved and the complainant is entitled to get the relief sought. Per contra the learned counsel appearing for the 3rd opposite party contented that PW2 had no competence to check the mileage and that there was a difference since air pressure was not checked. I do agree that 1st time the vehicle had a mileage of 11.77 Kms whereas the 2nd time it was only having a mileage of 8.89 kms. PW2 stated that 1st time they run the vehicle without AC and the 2nd time the mileage was checked with AC. The vehicle was purchased to use along with the AC. A detailed argument note was filed by the learned counsel appearing for the 3rd opposite party even challenging that complainant is not a consumer. It is true that complainant had employed a driver, but it doesn’t mean he will be ousted from the definition of consumer. 3rd opposite party has no case that complainant used the vehicle as a taxi. There is no harm in one employing a driver and that will not oust him from the definition of consumer. Secondly it was contented that PW2 the expert had no competence to check the mileage of the vehicle. In our opinion to check the mileage of the vehicle much competence is not required. Any ordinary driver can check the mileage by driving the vehicle. Mileage is checked by filling the tank in full and after driving a particular distance again the fuel will be filled. Kilometers run divided by fuel consumed is the mileage. For doing this expertise is not required and so the challenge over the competence of commissioner is without any foundation. Lastly it was contended that the relationship between opposite parties 1 and 2 and 3rd opposite party is principle to principle basis and 3rd opposite party is not liable. We are unable to understand such a contention. It may be true that the relationship between them may be principle to principle basis. But the reduction of mileage of the vehicle is clearly a manufacturing defect. Much evidence is not required to show the same. Moreover 3rd opposite party is the manufacturer of the vehicle and they will be having expert engineers and they could have verified the mileage and proved that the vehicle is having mileage as offered by them. It is to be remembered that according to PW1 at the time of purchase the executive offered a mileage of 14 Kms and from Ext.A1 the features of the vehicle the mileage offered was 14.4 Kms/ltr. It is to be noted that Pw1 purchased the vehicle as per Ext.A3 invoice for a price of 15 lakhs and so if he is not getting the mileage offered by the company that definitely is a deficiency of service from the part of opposite parties. As stated earlier when letters were sent to the 1st opposite party complaining about the mileage it was informed that it will be rectified after running certain kilometers. As per Ext.A3 invoice the vehicle was purchased on23/5/2017 and Ext.A4 delivery note the vehicle was delivered on 25/5/2017. Ext.A6 is the 1st letter complaining about the mileage and it is dtd.13/7/2017. So it can be seen that even after two months of the purchase the defect occurred. Opposite parties never cared to cure the defect inspite of sending Ext.A7, A8 and A9 reminders. Ext.A9 letter is dtd. 5/6/2018 and since there was no action from the part of opposite parties he filed the complaint on 26/9/2018. So from the evidence on record it is pellucid that the vehicle had only a mileage of less than 9 kilometers whereas the offered mileage was 14.4 Kms as per Ext.A1. Inspite of repeated letters informing the defect there was no action from the part of opposite parties which is clearly deficiency of service.
15. Complainant is seeking a relief of exchanging the vehicle with a new one or in the alternative for returning the price which amounts to Rs. 15,11,545/-. From Ext.C1 report it is seen that on 27/2/2021 Odometer reading was 105034 Km. The vehicle was purchased during May 2017 and now we are in 2021. So it is not possible to give a direction to exchange the vehicle of to return the price of the vehicle. However direction can be given to the opposite parties to rectify the defect. 3rd opposite party being the manufacturer will have qualified engineers with them and they will be able to find out the defect of the vehicle. Complainant is claiming an amount of Rs. 50,000/- as compensation for mental agony. As stated earlier the vehicle was purchased during May 2017 and for the last 4 years it is running at an average rate of 8 Km/ Ltr against the offered mileage of 14 Kms/ltr. So definitely one will have mental agony since the vehicle was purchased spending an amount of more than 15 lakhs. In said circumstances we are of the opinion that complainant is entitled for compensation as prayed for. These points are found accordingly.
16. Point No.5:-
In the result complaint is allowed in part.
A) Opposite parties are directed to cure the mileage defect of the vehicle.
B) Complainant is allowed to realize an amount of Rs.50,000/-(Rupees Fifty thousand only) as compensation from the opposite parties.
C) Complainant is allowed to realize an amount of Rs.3000/-(Rupees Three thousand only) as cost from the opposite parties.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 20th day of November, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/- Smt. Sholy.P.R (Member)
Appendix:-Evidence of the complainant:-
PW1 - C.Prasanna Kumaran (complainant)
PW2 - Saju Thomas(Witness)
PW3 - Anees Bedharudeen(witness)
Ext.A1 - Copy of Features &Specifications .
Ext.A2 - Vehicle Delivery Acknowledgment note
Ext.A3 - Copy of Tax Invoice dtd.23/5/2017
Ext.A4 - Copy of Payment Details
Ext.A5 - Copy of RC Book
Ext.A6 - Copy of Letter to RF Motors Manager
Ext.A7 - Copy of Letter to RF Motors Manager with AD card
Ext.A8 - Copy of Letter to RF Motors Manager
Ext.A9 - Copy of Letter to RF Motors Manager
Ext.C1 - Report
Evidence of the opposite parties:-
RW1 - P.Haridas (witness)
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
