Tamil Nadu

South Chennai

CC/296/2015

Mr.Nirmal Chandra - Complainant(s)

Versus

M/s.Nissan Motor India Pvt Ltd - Opp.Party(s)

G.Dilip Kumar

07 Sep 2022

ORDER

Date of Complaint Filed : 16.06.2015

Date of Reservation      : 11.08.2022

Date of Order               : 07.09.2022

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                            : PRESIDENT

                        THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                        THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

 

CONSUMER COMPLAINT No.296/2015

WEDNESDAY, THE 7^th DAY OF SEPTEMBER 2022

Mr.Nirmal Chandra,

Chairman,

Gazel Architectures (P) Ltd,

Having office at No.36,

School Street (Vellalar Street),

Ayanambakkam,

Chennai-600 095.                                                           ... Complainant            

 

..Vs..

 

1.M/s.Nissan Motor India Private Limited,

   ASV Ramana Towers,

   52, Venkatnarayana Road,

   T.Nagar,

   Chennai - 600 017.

 

2.Jain Jubilant Cars PVT Ltd,

   Raja Annamalai Building,

   No. 18/3, Rukmini Lakshmipathi Road (Marshal Road),

   Egmore,

   Chennai - 600 008.                                                  ...  Opposite Parties

 

******

Counsel for the Complainant          : M/s. G.Dilip Kumar

Counsel for the 1^st Opposite Party  : M/s. Lavanya Shankar

Counsel for the 2^nd Opposite Party  : Exparte

 

On perusal of records and after having heard the oral arguments of the Counsel for the 1^st Opposite Party, we delivered the following:-

 

ORDER

Pronounced by  Member-I, Thiru. T.R. Sivakumhar, B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Parties to pay a sum of R.3,69,671/- towards the cost of the Datsun Go T Car and to pay compensation of Rs.2,00,000/- towards hardship and mental agony suffered by the Complainant apart from monetary loss by the act of deficiency in service and to pay the cost of the complaint.

2.     The averments of Complaint in brief are as follows:-

The Complainant after seeing the advertisement of the First Opposite party being the manufacturer of Datsun Go T Cars, wherein the mileage was advertised at 20.63 KM per litre, he for his own use, purchased one Datsun Go T Model Car bearing Registration Number TN12 C 5942, Chassis No.MDHZBAAD0E3002217 and Engine No.741199A, Silver Metallic Colour, vide Invoice No.VSLA14000169 dated 15.05.2014, in the name of the company, from the Second Opposite Party for a sum of Rs.3,69,671.27. Before he bought this car, he was using 12 years old Maruthi Alto 800 Car which was giving a mileage of 11.90 km per litre in the city till its end and the claim in the advertisement by the opposite parties that their Datsun Go T Cars has a mileage of 20.63 Km per litre was the main reason for them to purchase the same. He was shocked and surprised that the mileage of the car in city was only around 11.20 Km per litre and the top handle in the front seat adjacent to the driver seat was also missing, the bonnet also closed with uneven gap, the doors closing was also not soft as they had to be banged hard to close them, the air flow from AC outlet was not reaching the passengers in the rear seat and therefore the complainant informed the said defects to the opposite parties. Thereafter the representatives of opposite parties visited and took a test drive in the Bangalore Highway and concluded that the mileage of their car was about 15 Km per litre and the Second Opposite Party through letter dated 08.09.2014 confirmed the mileage at 15.95 Km per litre on the Highway and stated that there is no possibility or option to provide roof support handle in the vehicle. The 1^st Opposite Party through advertisement and 2^nd opposite Party in the brochures claimed that the aforesaid car has a mileage of 20.63 Km per litre but subsequently after test drive confirmed the mileage at 15.95 Km per litre. The test drive was conducted in Bangalore Highway and not in city. The Complainant states that even after the test drive the mileage of their car is only 11 Km per litre in city which is very unreasonable and no way near the claim made by both the opposite parties through advertisements. The news item has been published on 07.11.2014 in all leading dailies that the Datsun Go cars manufactured by First Opposite Party has been declared as substandard by way of Global testing and the testing body has also asked Nissan Company to withdraw the cars from the Indian Market. He sent a letter dated 11.11.2014 to both the opposite parties and expressed his non satisfaction and the defects in the car with respect to mileage, missing roof support handle, bonnet problem and thereby demanded them to take back the car and refund the amount paid by them. The 1^st Opposite Party by a mail dated 17.11.2014 expressed apology for dissatisfaction and assured that their regional service team will contact and address the concerns of the complainant. Till date there is no positive response from both the opposite parties. The 1^st Opposite Party being the manufacturer and the 2^nd Opposite Part being the dealer have committed unfair trade practice and deficiency in service by selling a car through false advertisements and claims and thereby misleading the consumers like them and the same has caused severe mental agony and hardship to Complainant apart from the monetary loss due to the mileage problem which is a manufacturing defect. Inspite of several correspondence through email, phone and letters, the defects in the car are not rectified which is a manufacturing defect and the same has caused irreparable loss to them for which both the opposite parties are liable to compensate. Therefore he was constrained to issue a legal notice dated 9.1.2015 to both the opposite parties calling them to take back the car and pay the sum of Rs.3,69,671.27/- together with a sum of Rs.2,00,000/ towards compensation for the hardship and mental agony caused to them by the act of deficiency in service and unethical business of the opposite parties. The said legal notice was received and acknowledged by both the opposite parties but they failed and neglected to send any reply and also did not take any effective steps to resolve the dispute. Hence the Complaint.

 

3. Written Version filed by the 1^st Opposite Party in brief is as follows:-  

The Complainant both in the short and long cause title has asserted himself to be the Managing Director of M/s Gazel Architecture, under such backdrop taking cognizance of the above complaint itself is appalling and this Forum without any hesitation may return the complaint to the Complainant on that basis itself as the Act 2 (d) (i) & (ii) and catena of decision squarely bars such entity from invoking the Forum.

The impugned vehicle is much-admired, generally accepted and a well-liked vehicle among its class and the complainant first and foremost understand that mileage is a relative concept dependent upon and related to myriad factors including but not limited to driving conditions, driving style & technical nuances and anfluence of one or more of such factors. The corresponding extract on fuel ecosomy and/or factors driving or increasing fuel economy as referred to in the Owner's Manual issued to every consumer at the time of sale and/or delivery of vehicle is extracted herein below which may provide further insight into the concept and determinative factors. Fuel economy is dependent largely on an individual's style of driving.

To achieve maximum fuel economy

*Accelerate slowly

*Avoid unnecessary idling.

*Keep the engine properly tuned.

*Do not race the engine.

*Lise the air conditioning only when necessary.

*Slow down when driving on rough roads

*Keep the tyres inflated to the recommended pressure.

*Maintain a safe distance from other vehicles to avoid a collision in case of sudden stops. This will also reduce wear on the brake pads and linings.

*Do not carry unnecessary weight.

*Do not rest your foot on the brake pedal while driving.

*Adhere to the vehicle maintenance schedule and specifications in this manual.

Equally important is the facts that the meaning of mileage cannot be marginalized by contrast it with results under city conditions. While the manufacturer has referred to standard mileage of 20.63 kilometres per litre, the same has been assessed and/or evaluated under test specifications and / or controlled conditions by statutory authority which is expressly mentioned and/or clarified in brochures weighed down or otherwise subject to innumerable factors. The subject vehicle discharging a mileage commensurate results, subject of course to presence of specified conditions. The mileage as may be logically implied from discussion above would come down in case test conditions are substituted with city conditions. No mutual agreement existed / exist regarding any given figure of fuel consumption, parameters and standard, what exists is their statement of satisfactory fuel consumption. The Complainant except reporting for Periodical servicing with their authorized service partners' have not chosen to come forward with any specific grievance or complaint and it would not be out of context to quote that the allegations mentioned in Para 3 are conspicuously silent in the pre-lis notice therefore without a speck of doubt it could be inferred that, the allegation/ defects mentioned therein are nothing but after thought. Even otherwise such defects can be fixed in no time and in no way will affect the overall performance of the vehicle. As admittedly this Opposite Party was not amongst the thick of happening choose not to reply to the averments that the Complainant & the 2^nd Opposite Party proceeded to have a joint mileage test on 08^th September 2014, during which point of time it has clocked 15.95 kms. The assurance released through various mode of advertisement in regard to the mileage achieved by the impugned vehicle crave this Forum to treat the submission made in the foregoing paragraph, wherein it has been effectively elicited the modalities to be adopted for achieving the optimum mileage and without the cost of repetition it is stated that mileage @ 20.93 kms is achieved on a altogether different condition, which the Complainant can least take yard stick or comparison. Assuming without admitting that the impugned vehicle is only clocking 11 kms, then the Complainant needs to be sure whether he is adhering to the parameters as enunciated in the owners' manual, failing which he is estopped from pointing any fingers on them. It is explicitly denied that the vehicle manufactured by this Opposite Party has been declared substandard & they asked to withdraw the product from the domestic market. The Complaint is unaware of the fact that before launching any of their vehicle forward the trial product to the statutory authority i.e., ARAI and under their supervision the vehicle goes series of rigorous test and only if their considered opinion it's found that the vehicle is roadworthy in all respect they are permitted to go and with manufacturing the same, such being the factual position it is wholly uncharitable on the Complainant's part to come forward with incorrect statements. On receipt of communication from the Complainant they had replied in a courteous manner informing him to get back in due course, after which it was found out from the vehicle history that the vehicle is performing within the parameters as set out in the owners manual and the Complainant's allegation are unfounded one, upon which they informed the same to the Complainant over phone. The conduct of the 1^st Opposite Party by no stretch of imagination could neither be labelled as unfair trade practice or deficiency, since they had given a comprehensive reply in regard to the mileage aspect the same is not gone into to avoid jarring repetition and the Complainant being an artificial entity can least depict undergoing mental agony & hardship. It is denied that the Complainant had suffered monetary loss on account of mileage problem, making statements of such nature has not corroborate the same in a manner known to law, therefore this Forum need not give much credence to statements made in such context. They deny that the vehicle suffers from inherent defect and it is with due respect stated that the Complainant is not competent to level such baseless allegations and without prejudice as to the foregoing submission are even now ready and willing to have a joint test drive with the Complainant and fix the problem. They on a goodwill gesture has requested the Complainant to feel free to contact them for any specific complaint or grievances, which the Complainant for reasons best known choose not to exercise instead opted to approach this Forum by setting out unsubstantiated allegations. There is no question of compensating the Complainant for alleged loss. They crave this Forum not to draw any inference for non issuance of reply to the Complainant's legal notice. They deny having committed deficiency of service, yet state that it is unknown as to how the Complainant being an artificial body would have undergone mental agony & hardship in lieu of which they are liable to compensate. The Complainant is not entitled to any of the relief as sought for. There is no cause of action for the above complaint and the same has been concocted for the purpose to institute the above complaint, which otherwise is obviously absent. Hence the complaint is to be dismissed.

4.   The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-13  were marked. The 1^st Opposite Party submitted his Written Version and Proof Affidavit of Opposite Parties Exhibits B1 and Ex.B-2 was marked.

5.    Inspite of notice served on the 2^nd Opposite Party, they did not appeared and was set exparte.

Points for Consideration

1. Whether the Complainant is a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986?

2. Whether there is unfair trade practice or deficiency in service committed by Opposite Parties?

3. Whether the Complainant is entitled for reliefs claimed?

4. To what other reliefs the Complainant is entitled to?

Point No.1:-

It is an undisputed fact that the subject vehicle Nission Datsun Go-T-KPTO Model bearing Registration No.TN 12 C 5942 was purchased in the name  of M/s. Gazel ARCHITECTURES (P) LTD, from the 2^nd Opposite Party.     

        It is also not in dispute that the Tax Invoice dated 15.05.2014 and the Registration Certificate of the subject vehicle, were in the name of the said company.

        The disputed facts are that the mileage of subject vehicle assured at  20.63 kms per litre as per the advertisement of the 1^st Opposite Party and of the which the subject vehicle was purchased but the mileage of the subject vehicle in city was only 11.20 kms per litre. Further in the subject vehicle the top handle in the front seat adjacent to the driver’s seat was missing, the bonnet also closed with uneven gap, the doors closing was also not soft, the airflow of AC did not reach the passengers in the rear seat. The above facts were reported to the Opposite Parties and with regard to low mileage than the assured mileage was also confirmed by test drive by the 2^nd Opposite Party which reached only 15.95 kms per litre, as there were defects in respect of mileage, missing roof support handle, bonnet problem was not with satisfaction to the Complainant, had demanded to take back the car and refund the amount.

        From the above discussions and in the facts and circumstances of the case, it is clear that the subject vehicle was purchased in the name of the company, viz, M/s. Gazel Architectures (P) Ltd, as found in Ex.A-2 and Ex.A-3, which amounts to purchase made was for the use of the company, being commercial in nature, there were no averments in the complaint showing that the subject vehicle was purchased for the personal use of the personnels of the said company. Hence we hold that the Complainant is not a consumer and the complaint filed by the Complainant is not legally maintainable. Accordingly, Point No.1 is answered.

Point No.2:-

        From perusal of Ex.A-5, mail dated 09.07.2014 the complainant had raised the disputed facts mentioned herein above, which was duly responded by the 1^st Opposite Party through reply mail dated 10.07.2014, wherein the complainant’s complaint was registered and he was informed that the 2^nd Opposite Party would contact him shortly, as found in Ex-A-6. From perusal of Ex.A-7 the letter dated 08.09.2014 sent by the 2^nd Opposite Party to the Complainant, wherein the mileage issued was tested by the 2^nd Opposite Party including the officials of the 1^st Opposite Party on various dates on 15.07.2014, 24.07.2014 and on 18.08.2014 and the subject vehicle was taken test drive of 387 kms in city and 40 kms in Bypass/Highway and the mileage average arrived at 15.95 km/litre. With regard to roof support handle to the subject vehicle the 2^nd Opposite Party had clearly explained to the Complainant that there is no possibility or option to provide the same. The 2^nd Opposite Party had responded to the notice sent by the complainant on 11.11.2014 (Ex.A9) as found in Ex.A11. From Ex.B2 the vehicle history of the subject vehicle which provides the details of service attended by the 2^nd opposite party from 15.07.2014 to 20.02.2017 would clearly show that the complainant was using the subject vehicle on his satisfaction with regard to issues raised by him. Further contentions of the 1^st Opposite party with regard to the mileage issue would be due to driving pattern/manner without following the parameters mentioned in the owner’s manual and only on approval of Automotive Research Association of India (ARAI) after conducting rigorous test and only if they found the vehicle is road worthy in all respects would permit to go ahead with manufacturing the same are acceptable. Hence we hold that the Opposite Parties 1^st and 2^nd Opposite Parties had responded to the complaints of the complainant in a diligent manner to the satisfaction of the complainant. Therefore, we are of the considered view that the Opposite Parties 1 and 2 had not committed unfair trade as deficiency of service. According point no.2 is answered.

 

 

Point Nos.3 and 4:

As discussed and decided Point Nos.1 and 2 as against the Complainant, the Complainant is not entitled for any relief claimed in the Complaint and/or for any other relief/s. Accordingly, Point Nos. 3 and 4 are answered.

In the result the complaint is Dismissed. No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 7^th of September 2022.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 List of documents filed on the side of the Complainant:-

 

Ex.A1		Advertisement in Newspaper
Ex.A2	15.05.2014	Tax invoice No.VSLA14000169 issued by 2nd Opposite Party to Complainant
Ex.A3	26.05.2014	Delivery Note issued by 2nd Opposite Party to Complainant
Ex.A4	26.05.2014	Registration certificate No.TN12C 5942
Ex.A5	09.07.2014	Email from Complainant to 1st Opposite Party
Ex.A6	10.07.2014	Reply Email from 1st Opposite Party to Complainant
Ex.A7	08.09.2014	Letter from 2nd Opposite Party to Complainant
Ex.A8	07.11.2014	Article in Times of India Newspaper
Ex.A9	11.11.2014	Letter from Complainant to Opposite Parties
Ex.A10		Acknowledgement card
Ex.A11	17.11.2014	Email from 1st Opposite Party to Complainant
Ex.A12	09.01.2015	Lawyer’s notice from Counsel of Complainant to the Opposite Parties
Ex.A13		Acknowledgement cards

 

List of documents filed on the side of the 1^st Opposite Party:-

Ex.B1		Relevant extract from the Warranty Booklet
Ex.B2		Comprehensive history of the impugned vehicle

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT