By: Sri. Mohamed Ismayil.C.V, Member
The grievances of the complainant is as follows:
1. The complainant purchased a Ford Freestyle petrol engine car on 11/08/2018 from the first opposite party after making payment of Rs 7,38,000/-. The payment included money availed by way of a bank loan also. In a prelude to sale, the employee of sales section of the opposite party had given assurance that the car would be fuel economy by providing 19 Km/L and at least it would be provided with 16 Km/L. The official catalogue of the manufacturer also endorsed the claim of opposite party as 19 Km/L. But when the complainant began to use the car the fuel economy came to the level of 12 Km/L. So he contacted first opposite party and they advised for mileage test. As a result when the first opposite party conducted mileage test then fuel economy was found as 12.9 Km/L. The first opposite party also advised to conduct another mileage test after running 10,000 kilometers. On the basis of advise given by the first opposite party, the complainant again conducted mileage test when the vehicle was reached near to 15,000 kilometers. Then the mileage was found as 13.6 Km/L. So the complainant contacted the first opposite party for compensation but offered only a meagre amount. The amount offered by the first opposite party was too small and the acceptance would cause heavy loss to the complainant. It was alleged in the complaint that using of above said vehicle would make huge financial loss to the complainant as the price of fuel is increasing day by day. So the complainant prayed for the refund of amount spent for purchasing the car and also pay compensation including interest to the amount secured by way of loan for making payment of car. The complainant prayed for a direction to pay all together Rs 9,75,000/- from the opposite parties which includes compensation for mental agony due to the act of the opposite parties and cost of the proceedings.
2. The complaint was admitted on file and issued notices to the opposite parties. Both opposite parties appeared before the Commission through their counsels and filed versions.
3. The first opposite party denied the allegations raised in the complaint except some portions specifically admitted in the version. According to the first opposite party the complaint is not maintainable either in law or on facts and also contented that complainant do not got any right to adjudicate the matter before the Commission. The statement in the complaint that on 11/08/2018 the complainant purchased Ford Freestyle Petrol Engine car after making payment of Rs 2,38,000/- in cash and Rs 5,00000/- by way of loan is not true and incorrect. According o the first opposite party, they sold the above said vehicle to one Jameela, Neelampra House, Pandikkad P.O. The first opposite party also denied that the sales employee convinced the complainant about the fuel efficiency available to the vehicle as 19 KM/L or at least 16 KM/L. It is contented by the first opposite party that the assured fuel efficiency of the vehicle is solely depended on road condition stated by the manufacturer and proper gear shifting as well as usage of vehicle. Moreover the employees of the first opposite party also instructed the complainant to do timely service maintenance of the vehicle for getting fuel efficiency as assured by the manufacturer. The statement of the complainant that at the very beginning stage the vehicle was availed with only 12 KM/L was not correct. According to the first opposite party it was unbelievable that fuel efficiency was tested as 12 KM/L when vehicle was driven less than 1000 KM. The first opposite party denied the contention of the complainant that on the basis of instruction of the first opposite party a fuel efficiency was conducted and found the efficiency as 12.9 KM/L. The statement in the complainant that after driving near to 1500 KMs another test was conducted to ascertain the fuel efficiency and found as 13.6 KM/L as the maximum of the vehicle was not correct and no such incident happened. According to the first opposite party the complainant itself exposed that there was gradual increase in fuel efficiency by attending proper maintenance service. The first opposite party stated that he did not offered any amount as compensation to the complainant as alleged in the complaint. The complainant did not suffer heavy financial loss due to the usage of the vehicle and there was no misrepresentation from the side of first opposite party at any point of transaction. The first opposite party explained all technical aspect for proper and efficient use of vehicle. The complainant purchased the vehicle after collecting specifications and technical stipulations of the vehicle . All customers of the first opposite party including above said Jameela had maintained fabulous opinion regarding the fuel efficiency of the vehicle. The customers are using the vehicle by proper gear shifting in accordance with the speed of the vehicle as instructed by the opposite party. The first opposite party contented that there is no ground for compensation of Rs 9,75,000/- to the complainant and complainant failed to explain actual quantum of loss. The first opposite party is not liable to pay compensation to the complainant. It is stated by the first opposite party that there was no allegation of deficiency in service against the first opposite party and so a misjoinder of the proceeding. The first opposite party prayed for dismissal of the complaint with compensatory cost.
4. According to the version of the second opposite party the complaint is not maintainable and liable to be dismissed. It is contented that the complainant never bought any Ford car from the opposite parties and rather he is the son of the owner and purchaser of the vehicle named Jameela and does not fall under the purview of the customer under section 2(d) of Consumer Protection Act, 1986. According to the second opposite party the vehicle history shows that the vehicle had met with one or several accidents before registering of a complaint for showing shortage of mileage. It is stated in the version that on 11/08/2018 the complainant visited the servicing centre after completion of 5 KM requested for addition of neck rest and Kit SHLD DR WDO and fixing of rain guard. On 30/08/2018 when the complainant visited service centre after completion of 2452 KM dents and scratches were found in bumper, door, fender, boner/ hood and quarter panel. The above said findings denoted that the vehicle was driven rashly and had met with accidents. It is contented by the second opposite party that the fuel efficiency of any vehicle would depend upon driving condition, speed, weather, weight, tyre pressure, city/ high way driving, maintenance, rapid acceleration and speeding. So according to the second opposite party the vehicle was not driven and maintained properly and has met with series of accidents which seriously affected the mileage of the car. The second opposite party again stated that on 30/10/2018, the complainant visited the authorized service centre after completion of 8154 KM where the complainant made a complaint about the mileage shortage. The service centre noted dents and scratches in bumper, door, fender, boner/ hood and quarter panel, but the complainant never requested for repair work. Instead the complainant demanded for replacement of car with a new one. It is stated in the version that on 22/11/2018 the complainant visited service centre and made complaint of mileage shortage and then noted dents and scratches on door, fender, boner/ hood and quarter panel. On that day mileage was checked and was found Ok and also done wheel alignment of the car and regular due servicing. In the version the second opposite party again explained the transaction took place between the opposite party and the complainant. On 05/01/2019, after completion of 10254 KM the complainant went to service centre and some works were done including body shops, LH damage, denting of body panel and painting of body panel. But there was no complaint of shortage of mileage was raised by the complainant at that time. From the repair work that took place on 05/11/2019, it was revealed that serious damage was caused to the vehicle. On 14/03/2019, after completion of 10141 KM the complainant came and demanded for checking mileage shortage. After completion of 16258 KM on 25/04/2019 the complainant again visited service centre and insisted for fuel economy test. The second opposite party contented that the complaint is not maintainable and liable to be dismissed in as much as service order dated 25/04/2019 with 16258 KM vehicle driven states that the job was done to conduct fuel economy test. It is also contented that test result recorded 18.80 KM/L as fuel efficiency of the vehicle. According to the second opposite party during the engines break - in- period (first 1600 KM) do not measure the fuel economy and more accurate measurement can be obtained between 3200 KM and 4800KM. More over there is also impact of temperature in recording fuel efficiency and in general lower temperature means lower fuel economy. The complainant did not produce any material to show that mileage was low as alleged in the complaint. According to the second opposite party they had carried out experts type approval test report by Emission Certification Lab dated 14/12/2017 resulted as the mileage is 19.0150 KM/L. This indicates that there was no intention to the second opposite party to make false promise or carry out the business in a tricky or unfair manner. It is also contented by the second opposite party that each opposite party in this proceeding is liable for its own respective actions and none assumes liability for the actions of the other. As per the terms of the warranty the second opposite party is only liable to the manufacturing defect of the product. The grievance with respect to selling of cars, deficiency in service and unfair trade practice can only be made against the dealers. It is contented by the second opposite party that the complainant failed to establish a particular defect falling within the purview of inherent/manufacturing defect has not persisted in vehicle as neither any expert’s report nor any convincing material has been placed before the Commission. It is also stated in the version that the complainant thwarted the attempt of the second opposite party to get the opinion of an expert or an independent agency by not handing over the car for taking it to ARAI for inspection. It is opined by the second opposite party that vehicle is in running condition and is being used by the complainant for regular basis. The second opposite party’s liability is stipulated to the extent of repair or replacement of the part which is proved to be suffering from any manufacturing defect within the limits of the warranty through experts evidence. It was also contented by the second opposite party that there was no privity of contract existed between the second opposite party and the complainant. Once the car is manufactured, the same is sold to the authorized dealer. Thereafter the dealer sells those cars to the customers according to their independent market strategies and second opposite party has no role to play in it. It is stated by the second opposite party that the complaint involves several disputed questions of fact and law and so the Commission cannot adjudicate the matter summarily. According to the second opposite party civil court have jurisdiction to adjudicate this matter. The second opposite party also contended that there was no jurisdiction to this Commission to entertain the case. It is stated that complainant admittedly availed the financial aid from HDFC Bank in purchasing the car and car stands hypotheticated to the said financier under the respective loan agreement. According to the second opposite party the complainant is using the car in the capacity of bailee and ownership vests with the financier and so financier is a necessary party to adjudicate the matter. The second opposite party stated that no document is produced by the complainant to show that car is not fuel efficient or that the mileage of the car is low. The second opposite party also denied that the mileage of the car is not 19KM/L. It is stated that it is the matter of record as said car was thoroughly inspected by the trained technician of the authorized dealer and was also put to fuel efficiency test with the complainant and in which the mileage of the car was reported to be 18.8KM/L. According to the second opposite party the car is a quality product. So the version of the second opposite party prayed for dismissal of the complaint with exemplary compensatory cost.
5. The complainant and second opposite party filed affidavits and produced documents. The documents produced by the complainant marked as Ext. A1 to A4. Ext. A1 document is the copy of certificate of registration of the vehicle No.KL 10BA 7334 owned by the mother of the complainant. Ext. A2 document is the copy of repair order dated 30/10/2018 issued by the first opposite party . Ext. A3 document is the copy of brochure pertaining to the vehicle used by the complainant. Ext. A4 document is the copy of interactive reception check sheet of the vehicle. The documents produced by the second opposite party marked as Ext. B1 to B7 documents. Ext. B1 document is the copy of vehicle history related to the case of the complainant. Ext. B2 document is the copy of service order dated 25/04/2019. Ext. B3 document is the copy of fuel efficiency test report.. Ext. B4 document is the copy of warranty and service guide. Ext. B5 document is the copy of the relevant extract of the owner’s manual. Ext. B6 document is the copy of Expert’s Test Report dated 14/12/2017. Ext. B7 document is the copy of relevant portion of the sale and service agreement standard provisions. The first opposite party did not file affidavit to support contention raised in the version.
6) Heard the parties in detail. Perused affidavits and documents produced by the complainant and the second opposite party . The version filed by the first opposite party is not considered for evaluation of evidence as there is no affidavit to support the contention raised in the version . So the points arisen for the consideration of the commission are;-
1) Whether the opposite parties are committed unfair trade practice or deficiency in service towards the complainant?
2) If yes, relief and cost.
7. Point No.1 and 2
The complainant stated that he purchased a ford freestyle petrol engine car on 11/08/2018 from the first opposite party in his mother’s name. The complainant produced Ext. A1 document to prove the ownership of the car before the Commission. According the complainant he remitted total Rs.7,38,000/- as the price of the car out of which Rs.5,00,000/- was secured by availing a loan from HDFC Bank. At the time of purchase the first opposite party assured that the vehicle is providing fuel efficiency of 19 KM/L or at least 16KM/L . In order to prove the assurance with regard to the mileage of the car, the complainant produced Ext. A3 document before the commission. But as per the contention of the complainant, he did not get the mileage as offered by the opposite parties. As per the advice of the first opposite party, fuel efficiency test was conducted and mileage was found as 12-9 KM/L. The complainant produced Ext. A2 document to that effect. It is further contended by the complainant that another test was also conducted on the basis of advice given by the first opposite party and then mileage was found as 13.6 KM/L . So the very case of the complainant is that the mileage offered by the opposite parties at the time of purchase of the vehicle is not availing to him. Even though the opposite parities filed their respective versions, the first opposite party, who had direct knowledge about the incident did not file affidavit to substantiate the contention made in his version . So the evidence adduced by the second opposite party is the lone shield to face the allegations of the complainant. According to the second opposite party the vehicle met with several accidents due to rash driving of the complainant. The second opposite party also stated that fuel efficiency of any vehicle would depend upon driving condition , weather , weight , tyre pressure, city / high way driving maintenance rapid acceleration and speeding. The second opposite party contended that vehicle was not properly maintained by the complainant and so those factors affected the mileage of the vehicle. When going through the evidences adduced by the complainant it can be seen that he was continuously worried about shortage of mileage right from begining. Ext. A3 document shows that the opposite parties offered 19KM /L fuel efficiency to the vehicle. Even though some conditions were stipulated by the opposite parties to achieve the mileage of 19 KM/L then the opposite parties should have make it clear about the minimum mileage available to the vehicle . Moreover the conditions stipulated by the second opposite party to get the offered mileage neither facilitated by the manufacturer nor controlled by the customer. As we know, the condition of road network is purely depending upon the climate condition, the strength of the public exchequer and policy of the government. It is also to be considered that no one can drive a vehicle in consistent manner. So the manufacturer should be more trustworthy and rational towards its customers while publishing the features of its product by way advertisement especially it plays vital role in the selection of products from the market.
8. The complainant produced Ext. A2 document to show that the vehicle had low fuel efficiency. Ext. A2 document is issued by the first opposite party. But at the same time the first opposite party kept away from the proceedings by not adducing evidence against the contentions of the complainant. The burden of proof lays on the opposite parties to prove things to the contrary. According to the second opposite party that the complainant thwarted the attempt of the second opposite party to get the opinion of an expert or independent agency by not handing over the car for taking it to ARAI for inspection . But this contention finds no merits in the evaluation of evidence as the second opposite party failed to produce evidence with that aspect. Moreover during the time of entire proceedings before the Commission, the second opposite party did not take any step for availing an expert opinion. The second opposite party produced Ext. B1 document to show the history of the vehicle. According to the second opposite party rash driving of the complainant also caused poor performance of the vehicle. It is also contended that vehicle was met with accidents. But the second opposite party did not bring any evidence to establish the contention made in the version. The second opposite party also produced Ext.B2 and B3 documents before the Commission. Ext. B2 document is the copy of service order dated 25/04/2019 to establish the job done to conduct the fuel efficiency test and Ext. B3 document is the report of fuel efficiency test. But the Commission cannot consider those documents as situation warranted an independent expert’s examination of the car especially where Ext. A2 document is issued by first opposite party. The second opposite party produced Ext. B4 and B5 documents pertaining to the warranty and service of the vehicle sold to the complainant. Here the dispute between the parties arose with regard to the fuel efficiency of the vehicle bought from the opposite parties by the complainant. So tests conducted inside the service centre of the opposite parties cannot be taken as cogent piece of evidence. More over Ext. B6 document seen as prepared on 14/12/2017. As per the available evidence the vehicle was purchased by the complainant on 11/08/2018. Moreover the complainant did not make any complaint against all the products of the opposite parties. Ext. B7 document is the copy of a portion of sale and service agreement standard provision. This commission need not look into the nature of relationship between the two opposite parties at this point of time. The established facts shows that second opposite party is the manufacturer and the first opposite party is the dealer cum service provider. So they are jointly and severally liable to the actions taken by them in connection with the transaction related to the complainant. The commission finds no merit in the challenge of the second opposite party with regard to the capacity of the complainant to sue them for an act of deficiency in service and unfair trade practices. The complainant is the son of registered owner of the vehicle and he was doing everything pertaining to the vehicle. Moreover the complainant produced power of attorney executed by his mother before the commission. The complainant did not produce details of bank loan availed for the purchase of the vehicle before the Commission. Moreover the complainant did not adduce evidence to prove the exact quantum of financial loss . But at the same time commission finds that the complainant had lost considerable amount for fuelling due to low mileage of the vehicle.
So when going through the above said evidences, the commission finds that no proper representation was made by the opposite parties with regard to the fuel efficiency of the vehicle manufactured by the second opposite party and sold by the first opposite party to the complainant . At present, the vehicle is in the custody of the complainant. The Commission finds that the vehicle was manufactured in the year 2018 and the complainant is using the vehicle continuously. There is no evidence available before the Commission to show the present value of the vehicle. The contention made in the complaint stands proved and the Commission allows the complaint as follows:-
1) The opposite parties are directed to pay Rs.3,00,000/- (Three lakh rupees
only) to the complainant as compensation for the sufferings of mental agony
and hardship caused due to the misrepresentation made by the opposite
parties in connection with the fuel efficiency of the vehicle .
2) The opposite parties also directed to pay Rs.20,000/- as the cost of the
proceedings to the complainant.
The opposite parties shall comply this order within 30 days from the date of receipt of this order, failing which the entire amount shall carry 9% interest from the date of order till realization .
Dated this 30th day of November , 2022.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
VPH
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1to A4
Ext.A1 : Copy of certificate of registration of the vehicle No.KL 10BA 7334 owned by
the mother of the complainant.
Ext.A2 : Copy of repair order dated 30/10/2018 issued by the first opposite party .
Ext A3 : Copy of brochure pertaining to the vehicle used by the complainant
Ext A4 : Copy of interactive reception check sheet of the vehicle
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B 7
Ext.B1 : Copy of vehicle history related to the case of the complainant.
Ext.B2 : Copy of service order dated 25/04/2019.
Ext.B3 : Copy of fuel efficiency test report.
Ext.B4 : Copy of warranty and service guide.
Ext.B5 : Copy of the relevant extract of the owner’s manual.
Ext. B6: Copy of tyre approved test report dated 14/12/2017.
Ext.B7: Copy of relevant portion of the sale and service agreement standard
provisions.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
VPH
