SOPHY THOMAS & ANR. vs INDUS MOTORS CO. PVT. LTD. & ORS.

These revision petitions arise out of common order of the State Commission; hence, decided by common order.

Revision petition Nos. 3235-3236 of 2011 - Sophy Thomas & Anr. Vs. Indus Motors Co. Pvt. Ltd. & Ors. have been filed by the complainant and R.P. Nos. 3582-3583 of 2011 - Maruti Suzuki India Ltd. Vs. Sophy Thomas & Ors. have been filed by OP against the order dated 14.07.2011 in Appeal No. 454 of 2010 - Sophy Thomas Vs. Indus Motors and Appeal No. 524 of 2010 - Indus Motors Co. Pvt. Ltd. Vs. Chairman, Indus. Motors Col Pvt. Ltd. passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, ''the State Commission'') by which, order passed by District Forum directing OP No. 1 & 2 to return repaired vehicle without claiming charges was upheld, but the order directing OP No. 1 & 2 to pay compensation of Rs.10,000/- was set aside and OP No. 3 was directed to pay Rs.2,00,000/- as compensation to the complainant with 9% p.a. interest from the date of complaint.

Brief facts of the case are that complainant no. 1 is registered owner of Maruti Suzuki SX4 ZXI car having registration no. KL-01-AR-4613 and complainant no.2 is husband of complainant no. 1. Complainant no. 1 purchased aforesaid car from OP No. 1 & 2 manufactured by OP No.3 for a sum of Rs.7,77,668/- on 22.8.2007 with 2 years warranty and extended 3 rd year warranty. It was further submitted that from very beginning, vehicle was not performing well and was suffering from mechanical defects such as starting trouble, loss of power, transmission not smooth, very low mileage and rusting. Complainant reported defects to OP but defects were not rectified. It was further submitted that on 7.2.2008, vehicle met with an accident and was taken for repairs to OP No. 1 on 8.2.2008, but so far vehicle has not been returned after repairs, though, 5 months have passed, which has caused huge economic loss to the complainant, as they were spending money on taxi for to and fro journeys. Alleging deficiency on the part of OPs, complainant filed complaint before District forum with a prayer to replace the vehicle with new model vehicle or to refund price with 18% p.a. interest and also claimed compensation of Rs.10,00,000/-. OP No. 1 & 2 resisted complaint and submitted that vehicle was brought to the workshop of OP No. 1 for regular free service and checkup and all defects noted at that time were removed without any delay. It was further submitted that after accident inspite of repeated requests complainants have not given any approval for repairing the vehicle and only on 15.4.2008, complainant gave consent in writing to repair the vehicle. Any manufacturing defect was denied. It was further submitted that OP No. 1 submitted claim papers and estimate to Insurance Co., but Insurance Co. raised doubt as in the claim form complainant no. 1 declared that accident had occurred due to failure of power brake, though, it was sufficient on action as reported by Motor Vehicle Inspector. It was further submitted that OP No. 1 by letter dated 2.8.2008 informed complainant that vehicle is ready for delivery, but complainant instead of taking delivery levelled further allegations by letter dated 8.8.2008 and he wanted replacement of vehicle or refund of price whereas complainant was liable to take delivery of vehicle after giving balance amount after adjusting claim amount sanctioned by Insurance Co. It was further submitted that defects were caused because of accident committed by complainant no. 2 against whom case has been registered and prayed for dismissal of complaint. OP No. 3 resisted complaint and submitted that complainant no. 1 has suppressed the fact that she had filed complaint before MRTP Commission before filing this complaint. It was further submitted that vehicle was 100% defect free and had undergone all checks before delivery. It was further submitted that complainant has not pointed out any defects during first and second service of the vehicle and services under warranty were carried out to the satisfaction of the complainant. This complaint has been filed to escape liability from the accident as complainant was driving the vehicle at very high speed,and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint partly and directed OP No. 1 & 2 to return the vehicle in perfect running condition within two weeks without collecting cost of replaced ECM and were further directed to pay Rs.10,000/- towards compensation for delay in returning the vehicle and Rs.2,000/- as cost of litigation. Both the parties preferred appeal and learned State Commission vide impugned order allowed appeals partly and modified order of District forum as mentioned above against which, these revision petitions have been filed.

Heard complainant no. 2 in person and Auth. Representative of complainant no. 1 and Counsel for the OPs and perused record.

Complainant No. 2 submitted that inspite of proof of manufacturing defect in the vehicle, learned District Forum committed error in disallowing refund of price or replacement of vehicle and learned State Commission further committed error in dismissing appeal to this extent; hence, revision petition be allowed and impugned order be modified. On the other hand, learned Counsel for the Maruti Suzuki submitted that learned District Forum rightly dismissed complaint against Maruti Suzuki, but learned State Commission has committed error in allowing compensation of Rs.2,00,000/-; hence, revision petition be allowed and impugned order be set aside qua Maruti Suzuki.

As far manufacturing defects in the vehicle is concerned, complainant has mentioned in the complaint that there was mechanical defect pertaining to starting trouble, loss of power, transmission not smooth, very low mileage and rusting. Learned District Forum after elaborate consideration observed that there was no manufacturing defect in the vehicle. Learned State Commission also observed that there was no manufacturing defect in the vehicle. Perusal of job cards pertaining to first free service dated 11.10.2007 and second free service dated 1.2.2008 reveals that complainant not mentioned any manufacturing defect in the car pertaining to starting trouble, loss of power, transmission not smooth, very low mileage and except general service only it was mentioned in second free service that dickey was rusting. I do not find any complaint regarding manufacturing defect in aforesaid job cards and learned District Forum as well as learned State Commission rightly observed that there was no manufacturing defect in the vehicle. In the light of judgment of Hon''ble Apex Court in Civil Appeal No. 2588 of 2011 - Mrs. Rubi (Chandra) Dutta Vs. M/s. United India Insurance Co. Ltd. as there is concurrent finding of District Forum and State Commission regarding no manufacturing defect in the vehicle and perusal of record further reveals that there was no manufacturing defect, I do not find any infirmity in the order of State Commission to the extent that there was no manufacturing defect in the vehicle.

It is admitted case of the parties that vehicle met with an accident on 7.2.2008 and was brought to the service station of OP No. 1 on 8.2.2008. If any defect had occurred on account of accident, it cannot be treated as manufacturing defect for replacement/refund of price of the vehicle.

Complainant submitted that vehicle was returned on 31.10.2011 after order of State Commission and vehicle was unnecessarily detained by OP No. 1 & 2 and learned District Forum committed error in allowing only Rs.10,000/- and learned State Commission further committed error in exonerating OP No. 1 & 2 from making its payment. Perusal of record reveals that complainant himself delayed taking delivery of the vehicle as he wanted replacement/refund of price of the vehicle without paying charges for repairs of the vehicle. Learned State Commission rightly modified order and exonerated OP No. 1 & 2 from making payment of Rs.10,000/- and I do not find any infirmity in the order to this extent and complainant is not entitled to any payment on account of delay in delivery of vehicle to the Complainant.

Learned Counsel for the OP No. 3 Maruti Suzuki submitted that District Forum rightly dismissed complaint against OP NO. 3, but learned State Commission committed error in directing OP to pay compensation of Rs.2,00,000/- on account of low mileage whereas mileage depend on number of factors. On the other hand, complainant submitted that on account of low mileage average complainant has to incur lakhs of rupees on fuel and learned State Commission has committed error in allowing only Rs.2,00,000/- as compensation; hence, impugned order be modified.

Complainant in his complaint has not mentioned about the promise by OP regarding mileage to be given by the vehicle. He has simply mentioned that there was complaint of low mileage. During the course of arguments, complainant has drawn my attention towards brochure of SX4 in which it has been mentioned as under: Particular SX4 ZXI City E MT Mileage (Highway)* 18.1 kmpl 18.2 kmpl Fuel Tank Capacity (litres) 50 42 Distance gtravelled in 1 tank full (kms) 905 764.4 *Source: Overdrive Nov. 2008 As per this brochure, mileage of this car on the highway is shown to be 18.1 kmpl and source has been shown as overdrive November, 2008. Admittedly, this brochure was not given by the OP to complainant at the time of purchase of vehicle as vehicle was purchased on 22.8.2007, but mileage has been shown on the basis of overdrive in November, 2008.

Learned State Commission while allowing compensation of Rs.2,00,000/- observed as under: "We find as already noted that the vehicle is not of the quality assured by the opposite parties vide brochures i.e. 18.1 kmpl fuel efficiency or at least 14 kmpl fuel efficiency as promised to the complainant and also had certain defects. In the circumstances, we find that it would be appropriate to direct the 3 rd opposite party/manufacturer to pay a compensation of Rs.2 lakhs to the complainants. The complainants will also be entitled for interest at 9% on the above amount from the date of complaint. The 3 rd opposite party will make the above payments. The 1 st complainant/RC owner is directed to take possession of the vehicle within 15 days of receipt of this order. The vehicle is to be kept ready in a proper running condition by opposite parties 1 & 2". Perusal of aforesaid observation reveals that aforesaid observations are not correct as complainant has not placed any document on record to substantiate that OP by any brochure at the time of sale of vehicle assured 18.1 kmpl fuel or at least 14 kmpl fuel efficiency. Complainant has not pleaded aforesaid assurance even in his complaint. Learned State Commission has observed in its order that the Commission on test report of repaired vehicle noted mileage as10.1 kmpl and of a new vehicle on similar condition average fuel consumption was 13.5 kmpl. On the other hand, ARAI certification reveals that vehicle was having mileage of 15.1 kmpl. Learned State Commission further observed that Commissioner has given fuel consumption of 13.5 kmpl of vehicle of another series SX4 VXI whereas complainant''s vehicle was SX4 ZXI. In such circumstances, it cannot be held that new vehicle of SX4 ZXI must be having fuel consumption of 13.5 kmpl. in the light of ARAI certifications which indicates that it was having average of 15.1 kmpl.

Learned Counsel for the respondent has placed reliance on judgment of this Commission in II (2015) CPJ 32 (NC) - EM Pee Motors Ltd. Vs. Ramesh Kirloskar Motors Pvt. Ltd. and Toyota Kirloskar Motors Pvt. Ltd. Vs. Ramesh Kumar Bamal & Anr. in which as per information of the manufacturer fuel consumption was 17.75 kmpl, but on test average was found 10.69 kmpl with air conditioner and 12.13 kmpl without air conditioner, but still dismissed complaint and observed as under: "7. In our opinion, if the manufacturer of a vehicle claims a particular mileage based upon the result of a test conducted by a third party such as ARAI which is a body under the aegis of the Government of India, it cannot be said to have published false information or made a false representation with respect to the fuel economy of the vehicle. The very use of the word "falsely" in clause I of Section 2(r)(1) of the act clearly indicates that the representation which is impugned before a consumer forum should be false to the knowledge of the person by whom it is made. If a person bonafidely believes upon the report submitted by a third party such as ARAI and represents accordingly to the members of the public, it cannot be accused of having made a false representation. As far as clause VII of the aforesaid provision is concerned that in our view may not be strictly applicable since the said clause applies only to a warranty or a guarantee given by the manufacturer/seller of the vehicle. In any case, even if the mileage of a vehicle under ideal conditions is taken as a warranty or guarantee of the performance of the vehicle, it cannot be said that it was not based on adequate or proper test when the manufactures bases the said warranty or guarantee on the report taken from a third party such as ARAI which before submitting its report subjects the vehicle to test in terms of Rule 115 of the Central Motor Vehicle Rules.

As regards the report given by the Punjab Engineering College, Chandigarh, a perusal of the report clearly shows that the vehicle was driven in the city, before the said report came to be given. There is nothing in the report to even suggest that the vehicle was driven under the same controlled conditions under which it was tested by ARAI. There is no information available to us as regards the comparative condition of the road on which the vehicle was driven by ARAI vis-?-vis the condition on which the vehicle was driven by PEC. We have no information (i) as regards comparative qualification, experience and driving habits of the persons who drover the vehicle, (ii) as regards the traffic conditions which were available at the time the vehicle was driven at Chandigarh vis-?-vis the traffic conditions under which the vehicle was driven by ARAI, (iii) as regards the quality of the fuel which was used by PEC Chandigarh vis-?-vis the quality of the fuel used by ARAI and (iv) as regards the load which the vehicle carried when it was driven by the experts of the Punjab Engineering College, Chandigarh. More importantly, the vehicle came to be driven by the experts of Punjab Engineering College sometime in July 2013 whereas it was purchased by the complainant in March 2011. Thus, the vehicle had already been used for about two and half years before it was tested by the experts of Punjab Engineering College, Chandigarh. It can hardly be disputed that with the passage of time, and due to use of the vehicle, the vehicle may not give the same mileage as is given when it is absolutely new. The mileage given by a vehicle is the result of a number of factors including (a) the road on which the vehicle is driven, (b) the traffic on the road at the time it is driven, (c) the quality of the fuel used in the vehicle, (d) the speed at which the vehicle is driven, (e) the number of times brake is applied to stop the vehicle, (f) load carried in the vehicle, (g) air pressure in the tyres/tubes, (h) condition of the tyres and (i) the overall condition of the vehicle, etc.. Therefore, a vehicle which gives a particular mileage under standard test conditions will never be able to deliver the same mileage when it is driven on a city road and that too, under conditions different from the conditions under which it was test driven".

In the case in hand, Commissioner had test drive of the repaired vehicle after long period of sale of the vehicle and mileage depends on number of factors as observed in Em Pee Motors Ltd. (Supra) and in such circumstances, learned State Commission has committed error in allowing compensation of Rs.2,00,000/- to the complainant on the ground of low mileage average.

Perusal of record reveals that complainant no. 1 had purchased the vehicle and was registered owner of the vehicle. Complainant No. 2 being merely husband of complainant no. 1 does not fall within purview of consumer and there was misrejoinder of parties.

Complainant has already delivered repaired vehicle without charging any extra amount for repairs as well replacement of ECM. In the light of aforesaid discussion, I do not find any manufacturing defect in the vehicle and learned State Commission has committed error in directing OP No. 3 to pay compensation of Rs.2,00,000/- on the ground of low mileage average and OP No. 3 revision petitions are to be allowed. As revision petition filed by OP is allowed, revision petitions filed by complainant are liable to be dismissed.

Consequently, revision petition Nos. 3582-3583 OF 2011 filed by OP No. 3 - Maruti Suzuki India Ltd. Vs. Sophy Thomas & Ors. are allowed and order dated 14.7.2011 passed by learned State Commission in Appeal No. 454 of 2010 & 524 of 2010 is partly modified and direction regarding payment of compensation of Rs.2,00,000/- by OP No. 3 to complainant is set aside and rest of the order is upheld. Revision Petition No. 3235-3236 of 2011 filed by the complainant are dismissed. Parties to bear their own costs.