COP. No. 76/2005



1. Thiru K. Subrayan,

S/o. Kali Gounder,

3/139, Barathi Nagar,

Namakkal.



2. Tamil Nadu Beneficiary Association,

40-B1, Senthamangalam Salai,

Namakkal,

by its Secretary. .. Complainant.



.Vs.



1. The Administrative Director,

TNSTC,

Salem-7.



2. The Conductor,

TN 27/N 1512 Bus,

TNSTC,

Salem-7. ..Opposite Parties.



This complaint coming on for final hearing before us on 11.11.2009 in the presence of Thiru K. Subrayan, Secretary, Tamil Nadu Beneficiary Association and of Thiru P. Madeswaran, Advocate for the opposite party No.1 and of Thiru A. Chandrasekaran, Advocate for the opposite party No.2 and after hearing of both sides and having stood over till this day for consideration, this Forum passed the following order:
ORDER

This complaint is filed under Section 12 of the Consumer Protection Act.
The crux of the complaint is:-

The 1st complainant is the aggrieved consumer and the 2nd complainant is the voluntary consumer organization. The 1st complainant on 03.10.2005 around 1-00 PM boarded the opposite parties bus bearing Registration No.TN-27-N-1512 from Salem. The 1st complainant gave Rs.13.50 to the 2nd opposite party and sought ticket for Seelanaickenpatti bye-pass bus stop. The 2nd opposite party refused to give ticket for 13.50 and asked the 1st complainant to pay Salem ticket fare of Rs.15.50 and to get down at Sellanaickanpatti bye-pass bus stop. The 1st complainant told about the Regional Transport Officer order declaring the above said Seelanaickenpatti bye-pass bus stop as 1st stage. The 2nd opposite party refused to issue ticket for Rs.13.50 and started abusing the 1st complainant. The 1st complainant having no other go paid Rs.15.50 and obtained the ticket. The 2nd opposite party was not wearing the name badge as per the MV Act and refused to reveal his name. The complainants allege that the act of the opposite parties amounts to gross deficiency in service and unfair trade practice and has lodged this complaint to direct the opposite parties for refund of the excess fare of Rs.2/-, compensation, cost etc.

2. The contentions of the 1st opposite party in his written version is:-

The opposite party contends that instructions has been issued to the conductors through their Namakkal Branch Manager. A sum of Rs.13.50 only is been collected from Namakkal to Seelanaickenpatti Bye-pass Road Stop. The conductor of the bus fearing disciplinary action from this opposite party always behave in a polite manner with the passengers hence there is no question of abusing him. There is no deficiency in service on their part hence the complaint has to be dismissed.

3. The contentions of the 2nd opposite party in his written version is:-

The contention of the 2nd opposite party is that 1st complainant only sought ticket for Salem and subsequently he asked ticket for Seelanaickenpatti since the stage has been closed the request was turned down. This opposite party is having witnesses to the incident and he produce them before this Forum. The complainant has not given any complaint to the 1st opposite party and has lodged this complaint to extract money from the opposite parties. There is no deficiency in service on his part and the complaint has to be dismissed with cost.

3. The complainant has filed proof affidavit along with 4 documents and the same has been marked as Ex.A1 to Ex.A4. The opposite party has filed proof affidavit without documents. The deposition of cross-examination of the complainant is enclosed as CW-1.

4. The point for consideration is:-

Whether there is any deficiency in service on the part of the

Opposite Parties and if so to what relief the Complainants

are entitled for?



5. POINT:- The 1st complainant is the aggrieved consumer and the 2nd complainant is the voluntary consumer organization. The 1st complainant on 03.10.2005 around 1.00 PM boarded the opposite parties bus bearing Registration No.TN-27-N-1512 from Salem. The ticket has been produced and placed before us by the complainant as Ex.A1. The 1st complainant gave Rs.13.50 to the 2nd opposite party and sought ticket for Seelanaickenpatti bye-pass bus stop. The 2nd opposite party refused to give ticket for 13.50 and asked the 1st complainant to pay Salem ticket fare of Rs.15.50 and to get down at Seelanaickentpatti bye-pass bus stop. The 1st complainant told about the Regional Transport Officer order declaring the above said Seelanaickenpatti bye-pass bus stop as 1st stage. The order issued by the Regional Transport Officer, Salem has been produced and placed before us as Ex.A1. The 1st complainant states that 2nd opposite party refused to issue ticket for Rs.13.50 and started abusing the 1st complainant. The refusal to issue ticket for Rs.13.50 is short coming on the part of the 2nd opposite party. The 1st complainant states that having no other go paid Rs.15.50 and obtained the ticket. The 1st opposite party on the other hand contended that instructions has been issued to the conductor’s through their Namakkal Branch Manager. We go agree with the contention of the 1st opposite party that he had issued instructions to its crew to issue ticket to Seelanaickenpatti bye-pass bus stop, but at the same time he cannot simply wash off his hands by issuing orders. It is the duty of the 1st opposite party to see that his orders are being implemented. The dispute here is non-implementation of the directions/orders of the RTO and the 1st opposite party by the 2nd opposite party. The 2nd opposite party ought to have issued ticket to Seelanaickenpatti bye-pass stop for Rs.13.50 by adhering to the instructions/directions of the 1st opposite party, but the 2nd opposite party has not done so. The 2nd opposite party contended that 1st complainant only sought ticket for Salem and subsequently he asked ticket for Seelanaickanpatti since the stage has been closed the request was turned down. The opposite party has filed an application to cross examination of the complainant, which was allowed by the Forum. During the cross examination the complainant had denied that he sought ticket to Salem as contended by the 2nd opposite party. There is no contradiction in the cross examination and the complainant had completely stood by what he has averred in his complaint and proof affidavit. Further the 2nd opposite party has contended that he is having witnesses to the incident and he produce them before this Forum. But, no such witness was examined by the 2nd opposite party before this Forum. On the other hand the 1st complainant had produced and placed before us the sworn affidavit of the co-passenger who traveled in the bus on the date and time of the incident along with the tickets. The perusal of the said sworn affidavit clearly establishes the case of the 1st complainant. The opposite parties has not taken any steps to cross-examine the said deponent/witness of the 1st complainant. In this circumstances this Forum is not inclined to accept the contentions of the 2nd opposite party. The non-issuance of ticket to Seelanaickenpatti bye-pass bus stop in contravention of the instructions/orders of the Regional Transport Authority, Salem and by the 2nd opposite party is definciency in service on his part. The 1st opposite party ought to have seen that the orders issued by him is strictly implemented and violated as in the present case. The 1st opposite party has failed to take any such action. The 2nd opposite party is squarely responsible for the present dispute. We have perused the submissions made by both sides and the documents placed before us and we are of the opinion that the there are shortcomings on the part of the opposite parties. Considering the facts and circumstances of the complaint and in view of the above discussions we have no hesitation to hold the act of the opposite parties as deficiency in service. Regarding the compensation, the 1st complainant is an office bearer of the voluntary consumer organization. In can be evidenced from Ex.A4 that the 2nd opposite party has misbehaved and abused the 1st complainant in the presence of the other co-passengers which would have definitely caused mental agony and anguish to the 1st complainant and as such he is entitled for compensation on account of the mental agony suffered by him.

6. In the result, the complaint is allowed and the 1st opposite party is directed to refund the excess amount of Rs.2/- to the 1st complainant. Further the 1st opposite party is directed to pay a sum of Rs.2,000/- as compensation for mental agony and Rs.1,500/- as cost of the complaint to the 1st complainant. The 1st opposite party is directed to recover the above said Rs.3,502/- from the 2nd opposite party. Time for compliance one month from the date of this order.

Pronounced by us in Open Forum, this the 26th day of November,2009.

C.C. No. 61/2007
1. Thiru R. Natarajan,

S/o. Ramasamy Chettiyar,

73, Main Road,

Namakkal.


2. Tamil Nadu Beneficiary Association

by its Secretary Thiru K. Subrayan,

40-B1, Senthamangalam Road,

Namakkal. .. Complainants.



.Vs.



1. The Proprietor,

Jaya Auto,

Namakkal.



2. The Administrative Partner,

Bajaj Auto Ltd.,

Akkuradi,

Pune-411 035. ..Opposite Parties.



This complaint coming on for final hearing before us on 10.11.2009 in the presence of Thiru K. Subrayan, Secretary, Tamil Nadu Beneficiary Association and of Thiru P. Ramalingam Advocate for Opposite Party No.1 and 2 and after hearing of both sides and having stood over till this day for consideration, this Forum passed the following order:
ORDER

This complaint is filed under Section 12 of the Consumer Protection Act.
The crux of the complaint is:-

The 1st complainant is the aggrieved consumer and the 2nd complainant is the voluntary consumer organization representing the aggrieved consumer. The 1st opposite party is the dealer and the 2nd opposite party is the manufacturer of the Bajaj Two Wheeler. The 1st complainant has purchased a Bajaj Platina Two Wheeler from the 1st opposite party bearing Reg.No. TN-28-AA-3337 on 03.10.2006 by paying Rs.13,705/- the balance amount is through financial assistance of M/s. Bajaj Finance. The 1st Complainant was given for 1st service on 15.12.2006 when the vehicle had run 753 kms. The 2nd service was on 16.02.2007 when the vehicle had run 2563 kms. The 1st complainant vehicle’s gave only 60 kms per litre mileage only. The 1st complainant gave his two wheeler due to poor mileage on several occasions. The opposite parties had advertised that the said vehicle will give 108 kms mileage for per liter petrol. Due to low mileage he had suffered financially. The 1st complainant alleges deficiency in service and unfair trade practice on the part of the opposite parties and has lodged this complaint to direct the opposite parties to take back the vehicle and return the amount paid by him, compensation, cost etc.

2. The crux of the opposite parties contention in their written version is:- The opposite party contends that mileage issue cannot become a cause for the complaint because mileage achievable by any vehicle is generally indicated as one of the features of the vehicle and not the only feature. The opposite parties further contend that the fuel average achievable depends on various external facts on which they do not have any control like road conditions, air pressure maintained, purity of fuel and style of driving etc. The vehicle cannot be termed as defective for the sole reason that it did not give the mileage as advertised. Hence there is no deficiency in service or unfair trade practice on their part hence the complaint has to be dismissed.

3. The complainant to prove his case has filed proof affidavit along with 6 documents and the same has been marked as Ex.A1 to Ex.A6. The opposite parties has filed proof affidavit along with 4 documents and the same has been marked as Ex.B1 to Ex.B4.

4. The point for consideration is:-

Whether any deficiency in service or unfair trade practice

committed by the opposite parties and if so to what relief

the complaints are entitled for?



5. POINT:- The 1st complainant is the aggrieved consumer and the 2nd complainant is the voluntary consumer organization representing the aggrieved consumer. The 1st opposite party is the dealer and the 2nd opposite party is the manufacturer of the Bajaj Two Wheeler. The 1st complainant has purchased a Bajaj Platina Two Wheeler from the 1st opposite party bearing Reg.No.TN-28-AA-3337 on 03.10.2006 by paying Rs.13,705/- the balance amount is through financial assistance of M/s. Bajaj Finance. The 1st complainant was given for 1st service on 15.12.2006 when the vehicle had run 753 kms. The 2nd service was on 16.02.2007 when the vehicle had run 2563 kms. The 1st complainant vehicle’s gave only 60 km mileage only. The 1st complainant gave his two wheeler due to poor mileage on several occasions. The opposite parties had advertised that the said vehicle will give 108 kms mileage for per liter petrol. The purchase of vehicle by the 1st complainant is not disputed by the opposite parties. The 1st complainant’s main grievance is that the vehicle is giving only 60 kmpl liter as mileage as against the claim of 108 kmpl by the opposite parties. It can be seen from Ex.A5 the complainant had represented that the vehicle in question given 108 kmpl. The 1st complainant during each service has pointed out about the low mileage among other defects and this can be evidenced from Ex.A2 and Ex.B1 to Ex.B4. But, the opposite parties have contended that the fuel average achievable depends on various external facts on which they do not have any control like road conditions, air pressure maintained, purity of fuel and style of driving etc. and the 108 kmpl is under standard testing conditions. Though the opposite parties in their written version speak about testing of vehicles by ARAI (Automobile Research Association of India, Pune) they have not produced and placed before us the said report of ARAI in respect of this particular vehicle before this Forum. In this circumstances the plea of the opposite parties that its claim of average of 108 kmpl is in standard and ideal test condition and not on road condition is highly unfair and unethical. By making such claims which are not possible to be achieved in the ordinary condition is unfair trade practice which in terms of Section 2(1)(r) of the Consumer Protection Act reads as under:-“unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of 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 or a particular standard quality, quantity, grade, composition style or model:

(vi) Makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services.

The 1st complainant had entrusted his vehicle with the opposite parties to rectify the defect of low mileage in his vehicle. But, the opposite parties have returned the vehicle after service each time they were not able to rectify it. The each job card issued by the opposite parties for the 1st complainant’s vehicle speaks about the low mileage problem. It is misconceived notion that the vehicle cannot be declared as defective vehicle unless if suffers from manufacturing defect. Quality of vehicle or for that purpose any goods has to be tested on the anvil of definition of word “defect” as defined by Section 2(1)f of the Consumer Protection Act-1986, which means “any fault, imperfection or shortcoming in the quantity, quality, potency, purity or standard which is required to be maintained by or under any law for the time being in force or (under any contract, express or implied or) as is claimed by the trader in any manner whatsoever in relation to any goods. In such cases a trader or the manufacturer can be asked to do one of the following things as prescribed by Section 14 of the Consumer Protection Act-1986 14© to return to the complainant the price, or, as the case may be, the charges paid by the complainant.

In the case of

Kinetic Engineering (P) Ltd., & another

Vs.

Santosh Kumar Prasad

the Hon’ble State Consumer Disputes Redressal Commission, Delhi reported in III (2008) CPJ 226 has held that “it is common knowledge that manufacturer of vehicles in India makes tall claims as to the average of their vehicles, where the high average was claimed. The consumer is only concerned about the average of mileage in view of the road conditions of the city where he purchases the vehicle and the day to day use of the vehicle. We have deprecated such representation and directed the manufactures and traders not to give such advertisement in the newspaper and to make such claims which are not achievable in the ordinary conditions”.

The decision squarely applies to the present complaint.

6. In view of the above discussions we have no hesitation to hold the act of the opposite parties as unfair trade practice and their failure to rectify the defect as deficiency in service. The act of the opposite parties would have definitely resulted in mental agony to the 1st complainant.

7. In the result, the complaint is allowed and the opposite parties are directed to take back the two wheeler bearing Reg.No.TN-28-AA-3337 from the 1st complainant and return the amount paid by the 1st complainant till date. Further the opposite parties are directed to pay a sum of Rs.5,000/- to the 1st complainant as compensation for the mental agony suffered by him and Rs.1,500/- as cost of this complaint. Time for compliance one month from the date of this order.

Pronounced by us in Open Forum, this the 19th day of November,2009.

C.C. No. 34/2007



1. Tmt.M. Kaliammal,

W/o. Muthusamy,

3/27, Vadakkalapudur,

Lathuvadi Post,

Namakkal Taluk.



2. Tamil Nadu Beneficiary Association

by its Secretary Thiru K. Subrayan,

40-B1, Senthamangalam Salai,

Namakkal. .. Complainants



.Vs.

The Administrative Partner,

Shri Athi Parameswari Finance,

49-A3, Main Road,

Namakkal. ..Opposite Party.



This complaint coming on for final hearing before us on 04.11.2009 in the presence of Thiru K. Subrayan, Secretary, Tamil Nadu Beneficiary Association for Complainant No.1 and of Thiru A. Madeswaran, Counsel for Opposite Party and after hearing the arguments, this Forum passed the following:
ORDER

This complaint is filed under Section 12 of the Consumer Protection Act.
The crux of the complaint is:-

The 1st Complainant is the aggrieved consumer and the 2nd Complainant is the voluntary consumer organization representing the consumer. The 1st Complainant has stated that he made 5 deposits with the opposite party on 05.08.1998 bearing No.1625 to 1629. The opposite party has paid interest till 30.11.2005 and subsequent to which no interest was neither the deposit amount was not returned. The complainant alleges deficiency in service on the part of the opposite party and has lodged this complaint for return of the deposit amount, compensation, cost etc.

2. The crux of the opposite party’s written version is:-

The opposite party states that they had borrowed Rs.50,000/- at the rate of 18% per annum on the basis of promissory note. They state they are no services providers and they are only borrowers of money from the complainant by executing promissory note. The proper remedy for the complainant is to approach the appropriate Civil Court for recovery of money. This Forum has no jurisdiction to adjudicate this complaint and hence the complaint has to be dismissed.

3. The complainant has filed proof affidavit along with documents and the same has been marked as Ex.A1 to Ex.A3. The opposite party too have filed proof affidavit without documents.

4. The point for consideration is:-

1. Whether this Forum has jurisdiction to adjudicate the

complaint?

2. Whether there is any deficiency in service on the part of the

opposite party and if so to what relief the complainant is

entitled for?

5. POINTS 1 & 2:- The 1st complainant is the aggrieved consumer and the 2nd complainant is the voluntary organization representing the consumer. The 1st complainant has stated that he made 5 deposits with the opposite party on 05.08.1998 bearing No.1625 to 1629. The complainant has produced and placed before 5 pronote as Ex.A1. The opposite party contends that they had borrowed Rs.50,000/- at the rate of 18% per annum on the basis of promissory note. They state they are no services providers and they are only borrowers of money from the complainant by executing promissory note. A perusal of Ex.A1 reveal that the documents placed before us are in nature of promissory notes and not deposit receipts as alleged by the complainants. The opposite party further contends that proper remedy for the complainant is to approach the appropriate Civil Court for recovery of money and this Forum has no jurisdiction to adjudicate this complaint. The complainant is not a consumer as he has not availed any services from the opposite party. The complainant have only provided loans to the opposite party. As such there is no question of any deficiency in service. The dispute between the complainant and the opposite party is not a consumer dispute. In view of the above discussion we are of the opinion that this Forum has no jurisdiction to adjudicate the complaint.

9. In the result, the complaint is dismissed. No order as to costs.

Dictated to the Steno-Typist, transcribed by her, corrected and pronounced by us in Open Forum, this the 12th day of November,2009.