KINETIC ENGINEERING LTD. vs MILIND S.CHAURASIA

BY this order, we intend to dispose of both the above titled Revision Petitions as both arise out of the order dated 4th August, 1993 by which the appeal filed by the Complainant (now Respondent in these Revision Petitions) against M/s. Ajahtha Motors Pvt. Ltd. (Petitioner in Revision Petition No. 579 of 1993) and M/s. Kinetic Engineering Ltd. (Petitioner in Revision Petition No. 511 of) was allowed.

THE Complainant, had filed a complaint the District Consumer Disputes Redressal Forum, Nagpur. According to his allegation he had purchased a Luna-TFR Plus from M/s. Ajantha Motors Pvt. Ltd. (hereinafter d to as Dealer) on 14.8.90, who were the authorised Dealers of M/s. Kinetic Engineering Ltd. (hereinafter referred to as Manufacturer), who are the Manufacturers of the said make of Luna. He alleged that right from the ting the vehicle had a poor pick up and high petrol consumption and that it gave only 40 km. per litre as against 60 km. as advertised by the Opposite Parties. The Dealer carried out four services from time to time and the repairs arrived out but every time the fault per-After every free servicing the Dealer d him that the vehicle would run well and give proper mileage per litre but to no effect. After the fourth free servicing in July, 1991 the average mileage given by the vehicle was 35 to 40km. per litre and the Dealer also charged Rs. 530.80Ps. from him for the replacement of some parts. According to the Complainant, the defect has not been rectified and therefore, the Opposite Parties were asked to replace the defective vehicle with a new one immediately. He also for the refund of Rs. 530.80 Ps. paid on 23rdJuly, 1991 plus Rs. 10,000/- as compensation for higher consumption of petrol and mental torture. The Dealer filed its counter version admitting the sale of the said vehicle to the complainant. It was further averred that on 23rd July, 1991 when the vehicle was brought it was found that the gear box was in a damaged condition because there was no oil in it and since under warranty period, it was repaired and some parts were changed and Rs. 530/- were charged with an endorsement that the amount would be returned if the replacement of the part was accepted by the Manufacturers. All other allegations of the complainant were denied.

THE Manufacturers filed their counter alleging that the fuel consumption of the vehicle depends on various conditions such as maintenance of vehicle, manner of driving, road condition etc. and the conditions normally experienced in actual use on roads and are far off from the ideal conditions envisaged for 60 kmpl. performance of the vehicle. That every time the complainant brought his vehicle for a ''free service", the vehicle was thoroughly checked and during the first three free servicings certain parts had to be changed but that was done as goodwill and not because there was any manufacturing defect. At the time of the fourth servicing it was noticed that there was no oil in the gearbox whereas in the Operation and Maintenance Manual, the use of oil is insisted as per recommendation. After every servicing the complainant took the vehicle for trial and he was fully satisfied. They state that a fuel consumption test was carried out in the presence of the complainant on 1st July, 1991 and that showed 6.5 km. per 100 ml. which mean 65 km. per litre. On 23rd July, 1991 when the complainant had approached them, there was no oil in the gear box and this resulted in the failing of components due to negligence are not covered under warranty and hence when the parts were changed the complainant was charged for the same. It was further alleged that the complainant was using the vehicle without proper care and attention.

AFTER considering all the evidence, the District Forum held that the Ex. op-5 which is the Free Service Coupon No. 1 distinctly indicate 500-800 kms. or 45-60 days from the date of purchase which ever occurs first. However, the complainant took the vehicle for the first time to the Dealer for a free service on 26th December, 1990 i.e. four and a half months after the purchase and 3,450 kms. of running and that indicates that the complainant has not been taking proper care for it. The second free servicing is after another 6 months i.e. on 7th June, 1991, here was no complaint between the first servicing and the second servicing. From the date of purchase i.e. from 14.8.90 to 7.6.1991, altogether the vehicle has run for 7,600 kms. with only two services which indicated that the complainant was very negligent about the vehicle. It was, further held that at the time of the fourth servicing, the complainant was charged for the damaged parts which was due to the negligence of the complainant as there was no oil in the gear box and, therefore, the Dealer and the Manufacturer cannot he held liable. It was further remarked that as per the document Ex. op-4 (marked before the District Forum) the fuel consumption test showed that the vehicle gave 65 km per litre which is a normal consumption and that this test was done in the presence of the complainant and the report bears his signature. Before the District Forum, the Complainant did not deny the documents produced by the Opposite Parties nor filed anything contrary to them. In view of the above evidence, the District Forum held that the complainant failed to prove that there was deficiency on the part of the Opposite Parties and on the contrary, they have given free services and first two repairs free of cost even when the time and mileage factors governing the servicing were violated by the Complainant. Having come to the above findings, the District Forum dismissed the complaint. Feeling aggrieved by that order, the Complainant filed an appeal before the State Commission and it was contended before it that the Dealer/Manufacturer had never given any literature or maintenance operation manual to him nor any instructions were given to the complainant at the time of sale of the vehicle. It was further maintained that even at the appellate stage, no such literature or maintenance book has been placed before the State Commission to make it clear that such caution was given to the purchaser. The State Commission remarked that in the absence of such instructions on record, it was wrong on the part of the District Forum to attribute negligence on the part of the appellant and therefore, the conclusion that the gear box was damaged due to negligence of the complainant for not putting oil in it is thus without any basis or foundation. However, we have not been able to appreciate that conclusion of the State Commission. Before the District Forum, it was never pleaded by the complainant that the instructions book and operation manual were not supplied to him. Otherwise, also a person who purchases a vehicle usually asks for the instructions and operation manual. The user of a vehicle has to note that different kinds of oils have to be put in the containers meant for them. Therefore, the finding of the State Commission that during the warranty period the Dealer failed to replace the damaged parts of the vehicle free of cost and, therefore, the complainant should not have been saddled with the price of Rs. 530.80, cannot be upheld. The State Commission further held that the District Forum was wrong in not giving some finding on the point whether the vehicle in question was giving good consumption which was advertised by the Opposite Party and it was not enough to reject the complainant''s claim on the ground that the consumption depends on the manner of driving, road condition etc. The State Commission failed to note that the District Forum has clearly stated in its order that the mileage test was carried out in the presence of the Complainant and it was found to be giving mileage at 65 km. per litre which is a normal consumption and the report bears the signature of the Complainant.

THE State Commission also failed to notice that the full documentary evidence has been discussed by the District Forum and that the first two free services were not got done by the complainant at the proper time.

CONSIDERING the above facts, we are of the opinion that the order of the State Commission cannot be sustained as it has been passed by exercise of its jurisdiction with material irregularity by ignoring material evidence. Accordingly we set aside the order of the State Commission and restore that of the District Forum. We further order that in" each of the Revision Petitions, the Respondent shall pay Rs. 1,000/- as costs to the Revision Petition.