O R D E R SRI. JIMMY KORAH (PRESIDENT) Complainant purchased a Santro Xing vehicle from 3rd opposite party with the financial assistance of HDFC Bank Ltd. and got delivered on 2.7.2003 through 2nd opposite party. 1st opposite party is the manufacturer of the said vehicle. Complainant purchased this vehicle on attraction of its advertisement in a News Paper. As per the advertisement opposite party offered mileage of 20 k.m. per litre. After its purchase the vehicle was using his husband in ideal conditions specified in the warranty issued. There after vehicle subjected to periodical service and she complained about its low mileage. The said vehicle ahs only a mileage of 10-12 k.m. per litre. Even after the repeated complaint made by the complainant, her grievance was not rectified. Hence she approached this Forum. Complainant alleged manufacturing defect of the said vehicle. The registration Number of the said vehicle is KL-4/N-1048. 2. 1st opposite party filed version stating that it was filed for getting publicity. They did not give any offer regarding mileage. Fuel efficiency of the vehicle is regarding various factors. The vehicle of the complainant met with an accident. Vehicle was delivered after pre delivery inspection. Complainant has not made any complaint. Petition is barred by limitation. 3. Second and third opposite parties filed joint version. The advertisement made by the first opposite party is based on detailed study conducted by independent surveyors. Allegation regarding law mileage and manufacturing defect is false. Advertisement was made for Santro Zip Plus and not for Santro Xing. Hence petition may be dismissed. 4. Considering the rival contention of the complainant and opposite parties this Forum framed following issues:- a. Whether the complaint is barred by limitation? b. Whether there is any deficiency of service on the part of the opposite parties for fulfilling the contractual obligations. If so, what is the relief they are entitled? 5. Complainant produced 13 documents and marked it as Exts.A1 to A13. Opposite parties produced 2 documents and marked it as Exts. B1 and B2. Complainant and opposite parties filed proof affidavit and cross examined them. 6. Regarding first issue there is no serious dispute raised by the opposite parties. For filing a case, the limitation starts from the date of cause of action. Section 24A of the Consumer Protection Act also prescribes complaint shall filed within two years from the date of cause of action has arisen. The term cause of action is not defined in the Act. The classic definition of the said expression is found in the case of Cooke Vs. Grill, wherein Lord Brett observed: “Cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.” Here the complaint of the complainant is low mileage. The first service of the vehicle was done on 19.8.2003. Second service was on 17.1.2004. The third free service was on 31.8.2004. In the second and third service complaint made her complaint about low mileage. For a new vehicle it should have wait at least two services for getting a clear picture about its mileage. In the third service opposite party is conducted a mileage test. Here cause of action is continuing one and the mileage test were conducted by the opposite parties only on 31.8.2004. This petition was filed on 11.8.05. Hence it can be seen that there is no limitation for filing this petition and the petition is maintainable. 7. The definite case of the complaint is that she is getting only a mileage of 10-12 k.m. It can be seen from Exts.A2, A3, A4, A5 and A6 complainant has complained about its mileage. These documents are repair orders while she is giving the said vehicle for service. All these documents are issued by 2nd opposite party who is authorized agent and dealer of 1st opposite party. In Ext.A11 it is claimed and offered the opposite parties that the said vehicle’s mileage of 24.3 km. on high ways and 16.1 km. in City. But this document is dated 18.9.03. In Ext.B2 a document relied by the opposite parties that “the improved efficiency reflects in the mileage figures of 24.3 km./lit. on the highway and 16.1 km.pl in town”. The opposite parties have not denied in their version that Santro Xing has no mileage up to 24.3 km./lit. They have not denied the contents of Ext.A11. Ext.B2 is a document relied by opposite party and affirmed that Santro Xing has mileage 24.3 km./lit. Complainant’s case is also to this effect. These facts and documents show that there is no disparity with case of the complainant and the opposite party. The crucial point is that whether vehicle No.KL-4/N-1048 is having any low mileage than that offered by the opposite parties. From Exts.A2, A3, A4, A5 and A6 complainant has a consistent complaint of low mileage. But opposite parties have not satisfied about the mileage complaint of the of the complainant. No document produced by the opposite parties showing that vehicle has offered mileage. In Ext.A5 it is stated that, “Urgent – Peter attend this vehicle conduct mileage test.” But in any other exhibits no such directions issued. This shows that opposite parties have not seriously considered the complaint of the complainant except on 14.2.2005. From Ext.A5 it can be seen that opposite parties have conducted a mileage test of the vehicle. But this document was not produced by the opposite parties. Hence an adverse inference can be taken against the opposite parties. From the above said facts and circumstances it can be seen that case of the complainant is more probable and the vehicle KL-4/N-1048 is having only low mileage. 8. Complainant alleged that its manufacturing defect is the reason for low mileage, but opposite parties denied it. From the above discussion we already found that the said vehicle has no mileage as offered by the opposite parties. The opposite parties have not adduced any evidence or stated other reason for its low mileage. This shows that opposite parties have no other reason for low mileage. In the above said reasons and circumstances we find that the vehicle No. KL-4/N-1048 is defective in its manufacturing and this is the reason for its low mileage. 9. Hence we find that there is a deficiency of service on the part of the opposite parties. Here complainant is using the defective vehicle till this time and got much loss. In the above said circumstances we directed to the opposite parties to take back the vehicle No.KL-4/N-1048 and replace a new vehicle of same model (Santro Xing) after satisfying the complainant about its good condition. Complainant is entitled to get compensation of Rs.10,000/- (Rupees ten thousand only) and cost of Rs.1000/- (Rupees one thousand only) from the opposite parties jointly and severally within one month from the date of receipt of this order. Complaint allowed. Pronounced in open Forum on this the 30th day of June, 2008. Sd/- SRI. JIMMY KORAH: Sd/- SRI. K. ANIRUDHAN : Sd/- SMT. N. SHAJITHA BEEVI : APPENDIX:- Evidence of the complainant:- PW1 - C.H. Chandrabhanu (Witness) Ext.A1 - Repair Order No.A305379 Ext.A2 - Repair Order No.A311455 Ext.A3 - Repair Order No.A403586 Ext.A4 - Repair Order No.A405911 Ext.A5 - Repair Order No.A410597 Ext.A6 - Repair Order No.A500180 Ext.A7 - Registered Notice dated 13.6.2005 Ext.A8 series - Postal Receipts (3 Nos.) Ext.A9 series - Acknowledgement cards (3 Nos.) Ext.A10 - Malayala Manorama Newspaper dated 12.9.03 Ext.A11 - Malayala Manorama Newspaper dated 18.9.08 Ext.A12 - Outlook money magazine dated 15.6.2003 Ext.A13 - Owner’s Manual & Service Booklet (Photo copy) Evidence of the opposite party:- RW1 - Ansary P.Y. (Witness) Ext.B1 - Leaflet of Hyundai Ext.B2 series - Advertisement of Hyundai Car (3 pages) (Photo copies) // True Copy // By Order Senior Superintendent To Complainant/Oppo. parties/S.F. Typed by:-pr/- Compared by:-
......................JIMMY KORAH
......................K.Anirudhan
......................Smt;Shajitha Beevi | | 
