B.N.ROSHAN KUMAR vs SIPANI AUTOMOBILES LTD.

THE complainant and his Learned Counsel are present. THE complainant has filed his affidavit swearing to the facts averred in the complaint. Neither the Learned Counsel for the respondent nor the respondent is present. THE Respondent and his Learned Counsel were also absent for the hearing on 17.12.1991. Even on this day, when the matter was called on for hearing the Learned Counsel for the respondent and the respondent are absent.

WE have perused the averments made in the complaint and the affidavit of the complainant and also the documents produced by the complainant i.e., the advertisement that had appeared in Indian Auto Magazine as per Exhibit C-l, advertisement that had appeared in English daily newspaper ''Deccan Herald'' dated 4th July, 1989 as per Exhibit C-2, the specification of the engine as referred to in the owner''s handbook as per Exhibit C-3 and also the voucher for having paid the price of the vehicle as per Exhibit C-4 along with its letter sent by the respondent on 3-1-1991 as per Exhibit C-5. WE have also perused the statement of objection filed by the respondent and document, that is, certificate dated 17.9.1991 produced by him as per Exhibit R-l. The complainant purchased a Montana Diesel Car on 14.2.1991 by making payment of a sum of Rs. 1,31,131.62p to the respondent in pursuance of the advertisement given by the respondent in the newspaper and in the Indian Auto Magazine and other documents as referred above to the effect that the engine was manufactured by VST Trillers and Tractors in Bangalore with joint collaboration with Mitsubishi of Japan and that the chasis of the said Montana Car has been tested and approved roadworthy by Vehicle Research and Development Establishment of Government of India, which will facilitate registration of vehicle with the Transport Authorities.

After purchase of the said vehicle the complainant found that the car was not giving satisfactory service. It started giving of series of troubles i.e., oil from the engine started leaking, there was starting trouble and the engine was giving an unusual sound. The complainant found finally that the car was not fitted with Mitsubishi engine manufactured by VST Trillers and Tractors with joint collaboration of Japan but it was fitted with Jaya engine manufactured at Coimbatore.

THE complainant on the basis of these averments sought the refund of the price of the vehicle paid by him to the respondent i.e., Rs. 1,31,131.62p with costs. The respondent has simply stated that the allegations contained in the complaint were denied by him. The certificate Exhibit R-l produced by him is not the certificate to show that the engine was manufactured with joint collaboration of Mitsubishi Japan. That Certificate, it appears refers to certain repairs made on 17.9.1991.

THE facts and the circumstances averred by the complainant are fully substantiated by the affidavit filed by him. Having regard to these facts and in the circumstances of the case, it is clear that the respondent did give an advertisement which was published in the Deccan Herald and other magazines stating that the engine was manufactured by VST Trillers and Tractors with joint collaboration of Mitsubishi of Japan. It is also substantiated by the complainant that the car that was supplied by the respondent to the complainant was not fitted with Mitsubishi engine as stated in the advertisement. THE complainant has proved that on seeing the advertisement in the newspaper and other magazines, the complainant was induced to purchase the said car. It is also proved that the car was repaired on number of occasions after the said purchase was made by the complainant. Under the circumstances, we are of the view that the respondent had adopted ''unfair trade practice'' by supplying the car which was not fitted with Mitsubishi engine as stated in the advertisement but was fitted with Jaya Engine manufactured in Coimbatore and in consequence of which, the complainant suffered loss. Hence, the complainant is entitled for refund of the cost price of the car. The facts and circumstances of this case are also similar with the facts and circumstances of Complaint No. 182/1991 disposed by this Commission on 25.1.1992 and in other earlier cases.

THE complainant is entitled for refund of the cost price of the car paid by him to the respondent. As the complainant has so far used the car, in our opinion, he is not entitled to any interest on the said amount of cost price paid by him.

IN the result, therefore, the complaint is allowed and the Respondent is directed to pay a sum of Rs. 1,31,131.62p to the complainant together with costs of Rs. 1,000/- within one month from this day. The complainant shall deliver the car to the respondent and execute the necessary documents in his favour at the time of receiving the amount from the respondent. Appeal allowed.