KINETIC ENGINEERING P LTD vs SANTOSH KUMAR PRASAD

ON account of having sold highly defective motorcycle and also having represented as to the average of 92 kms whereas it hardly gave average of 55 kms, the appellant has been vide impugned order dated 5. 8. 2005, directed to replace the motorcycle and to pay Rs. 5,000 as compensation towards harassment and Rs. 2,000 as cost of litigation.

FEELING aggrieved the appellant has preferred this appeal. Allegations of the respondent leading to the impugned order in brief were that he purchased a Kinetic Motor Cycle model Velocity bearing registration No. DL 3s AH 4928 from appellant No. 2 for Rs. 40,792 on 24. 10. 2003. He was assured that the motorcycle will give an average of 92 kms for 1 Ltr. Petrol and that it has excellent pick up. In case of any manufacturing problem the vehicle would be replaced by the appellant No. 1. After about one month of its purchase, respondent found that vehicle was heating up even on driving for a few minutes and its pick up was also very low. Even load capacity of the vehicle was low. The clutch plate of the vehicle burnt in January 2004 just after running 5000 kms. When he visited the appellant, clutch plate was changed but thereafter gear while changing started making noise. The gears changed on its own. At times while motorcycle was running the gear suddenly changed to neutral position. On 4. 4. 2004, the respondent went to appellant No. 2 and explained all these problems. Appellant carried out the repairs but the defects were not properly removed, pick up was still low and average did not improve All this happened within a period of five months from the purchase of vehicle. On 26. 5. 2004 engine was opened by the mechanics of appellant No. 2 when vehicle had run only 1,0000 kms. Normally engine is opened only after the vehicle has run about 50,000 kms. In spite of this there was leakage in the oil. Respondent visited the appellant No. 2 again and again and requested for replacement of the vehicle or refund of his money. He again visited the appellant No. 2 on 18. 7. 2004 and major repairs were carried out in the engine, gearbox, clutch plate, steering and shockers, etc. payments for the parts replaced was made by the respondent as insisted by appellant No. 2. The respondent had spent about Rs. 5,000 on the repairs of the motorcycle on different dates and it has not yet been fully repaired. Even the pollution level is higher than the prescribed limit. The respondent has lost many working days for going to the appellant No. 2 and he finds it difficult to frequently visit the appellants. Respondent requested that appellant should be directed to replace the vehicle and compensate him by way of Rs. 2,000 towards cost of litigation, Rs. 5,000 spent by him for repairs, Rs. 20,000 for loss of work and Rs. 10,000 as compensation for harassment.

In its reply appellant admitted that the motorcycle was purchased by the respondent from appellant No. 2 on 24. 10. 2003 but maintained that the motorcycle is free for any manufacturing defect. Requisite free services were rendered to the respondent. The respondent had taken the vehicle after satisfying himself. It is more than a year that the respondent has been using the bike and upto 11. 9. 2004 it had run 17,386 kms. On an average it is being run for 50 -55 kms a day. The warranty is for repair/replacement of certain parts only free of cost during the validity period. The warranty does not provide for replacement of the bike. The average of 92 kms per liter is achieved under standard ideal test conditions and not on road conditions. The compensation claimed is baseless. Respondent is not entitled to any relief as appellants were not liable either jointly or severally for the replacement of the vehicle or to pay any compensation.

WE have taken consistent view in case after case that it is misconceived notion that the vehicle cannot be declared as defective vehicle unless it suffers from manufacturing defect. If a vehicle is found to be suffering from manufacturing defect the replacement may be ordered but if the vehicle suffers from some or the other defects and has to be taken time and again for repair to the garage it reflects either the poor quality of the vehicle or that it is a defective vehicle. Quality of vehicle or for that purpose any goods has to be tested on the anvil of definition of word "defect" as defined by Section 2 (1) (f) of Consumer Protection Act, 1986, which means "any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or (under any contract, express or implied or) as is claimed by the trader in any manner whatsoever in relation to any goods. " Whenever a person purchases a brand new vehicle his minimum expectation is that for few months or year he will have no problem much less the major problem. If he starts taking the new vehicle to the garage every second or third day for removing some or the other defect, he does so at the cost of his time, money, patience, mental agony and harassment and also emotional suffering.

A person goes for a brand new vehicle by paying heavy amount only to avoid any inconvenience or hardship a second or third hand vehicle or goods presents, and if a brand new vehicle or goods also starts giving trouble and the defect starts erupting from the inception and then time and again person is forced to take it to the workshop after every fortnight or month and still the defect continues, the vehicle or the goods has to be declared as defective goods and therefore a trader or the manufacturer can be asked to do one of the following things as prescribed by Section 14 of the Consumer Protection Act, 1986: (a) to remove the defect pointed out by the appropriate laboratory from the goods in question; (b) to replace the goods with new goods of similar description which shall be free from any defect; (c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant; (d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer, due to the negligence of the opposite party.

The plea of the respondent that its claim of average of 92 kms is in standard and ideal test condition and not on road conditions is highly unfair and unethical. By making such claims which are not possible to be achieved in the ordinary condition is unfair trade practice which in terms of Section 2 (1) (r) of Consumer Protection Act, 1986, reads as under: "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely: (1) the practice of making any statement, whether orally or in writing or by visible representation which,- (i) falsely represents that the goods are of a particular standard quality, quantity, grade, composition, style or model; (vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;

It is common knowledge that manufacturer of vehicles in India makes tall claims as to the average of their vehicles and in the past we have come across many such matters where the high average was claimed. In this regard we have taken a view that every manufacturer of the vehicle should first gauge the road conditions of the country and places of their target before coming out with claim of mileage. Any kind of explanation given by the manufacturer with regard to the average which is projected or claimed by the manufacturers is misleading in nature and false representation and deceptive trade practice. Consumer is only concerned about the average of mileage in view of the road conditions of the city where he purchases the vehicle and the day to day use of the vehicle. We have deprecated such representation and directed the manufacturers and traders not to give such advertisement in the newspapers and not to make such claims which are not achievable in the ordinary conditions.

FOREGOING reasons persuade us to dismiss the appeal being misconceived and devoid of merit. The payment shall be made within one month from the date of receipt of this order.

BANK Guarantee/fdr, if any, furnished by the appellant be returned forthwith. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room. Appeal dismissed.