The 1st respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to replace the defective vehicle sold to the complainant with an undefective one, to pay the loss of earning and the amount of installments paid to the financiers to the tune of Rs.2 lakhs, to pay Rs.2 lakhs towards mental agony and physical strain suffered by the complainant and to pay the cost. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.21.09.2007 in C.C.70/2004.
This appeal coming before us for hearing finally on24.01.2011, upon hearing the arguments of the either counsels and perused the documents, as well as the order of the District Forum, this commission made the following order:
M. THANIKACHALAM J, PRESIDENT
1. The second and third opposite parties in C.C.70/2004 on the file of the District Consumer Disputes Redressal Forum, Krishnagiri, are the appellants.
2. The first respondent in this appeal, who is the complainant, had purchased a vehicle, Eicher 11.10 Turbo, manufactured by the third opposite party from its authorized service dealer/second opposite party on 27.08.2003, on the assurance given by the opposite parties, that the vehicle will give mileage of 8 to 9 kms per litre. But it has given only 5.3 kms per litre, which was reported to the opposite parties. Not only that, on 31.01.2003, the vehicle broke down due to cease of engine. Though the second opposite party fixed the fuel pump, upon complaint on 13.5.2004, there was no improvement and the vehicle has not had the capacity of pickup, when it was reported, a gear box was given, not belonging to the third opposite party, thereby the opposite parties have committed negligent act, as well as deficiency in service, adopting unfair trade practice also. Despite issuance of legal notice, the opposite parties failed to replace the vehicle, which had caused financial loss, as well as mental agony, totaling a sum of Rs.4 lakhs. Hence, a consumer complaint, for replacement of the vehicle as well for recovery of a sum of Rs.4 lakhs, as compensation was filed.
3. The opposite parties in their Common Written Version, admitting the sale of the vehicle in favour of the complainant, disputing other allegations, including negligent act as well as deficiency in service, opposed the complaint, inter alia, further contending that at no point of time, they have informed the complainant that the vehicle would yield or give mileage of 8 to 9 kms per litre, that whenever the vehicle was brought for free service, it was attended promptly, that the mileage of the vehicle, will depend upon so many factors, including the manner of driving, that the complainant?s family adopting rowdism, even attempted to prevent the sale of the vehicle, that in spite of all these things, the gear box of the vehicle was replaced on 23.09.2004, though the existing gear box was in good condition, since requested by the complainant and her husband, that since the purchase of the vehicle is for the commercial purpose, the Consumer Forum cannot decide the case, thereby praying for the dismissal of the complaint.
4. The District Forum, based upon Ex.A1 to Ex.A15, as well as Ex.B1 to Ex.B8 while assessing the case of the parties, felt that the first and second opposite parties rendered service in repairing the vehicle, however despite that fact, there was poor mileage, for which, the opposite parties should be held responsible, that in view of the frequent taking of the vehicle to the opposite parties, for repairing or service, that would prove, there was no fuel efficiency, thereby the complainant had established, the deficiency of service. In this view, allowing the complaint, a direction was issued against the third opposite party, to replace the defective vehicle, issuing further direction to all the opposite parties, individually and jointly to pay a sum of Rs.50,000/- as compensation, in addition to, pay a sum of Rs.5,000/-, which is challenged by second and third opposite parties alone in this appeal.
5. The first respondent, who is the complainant, though served, has not appeared before this Commission to defend the judgement or oppose the appeal and therefore, this Commission is constrained to dispose the case on merit, based upon the available materials.
6. The learned counsel for the appellants urged before us, that there was no promise or agreement between the parties, regarding the fuel efficiency of the vehicle, that too, fixing between 8 to 9 kms per litre, which was not properly considered by the District Forum. A further submission was made, when the complainant had not alleged or proved any defect in the vehicle, the direction issued to replace the vehicle, is most unfortunate and erroneous, which requires to be nullified. Further, a final submission was made, that as per the findings of the District Forum, the first and second opposite parties have rendered services as and when the vehicle was brought for service or repair, as the case may be, this being position, there is no question of ordering compensation, but the District Forum did, requires to be uprooted. The above submissions are not challenged or opposed, since as said above, the complainant who obtained an order in her favour, failed to come before this Commission, that does not mean the order should be set aside, and we are not going to accept, the case of the appellants, as such, the appeal is meritorious, whereas we are inclined to dispose the case on merit, despite no opposition in this appeal.
7. There is no dispute between the parties, regarding the vehicle purchased by the complainant, which was manufactured by third opposite party, on 27.08.2003. The first and second opposite parties are the authorized service dealers and it appears, the first and second opposite parties not only the agents or dealers of the third opposite party, but also service providers.
8. The main accusation of the complainant against the opposite parties appears to be, poor mileage given by the vehicle, not any manufacturing defect or other defects in the vehicle. Admittedly, whenever the vehicle was taken to the first and second opposite parties, they have attended the service promptly even changed the fuel pump, as well gear box also though the original gear box was not damaged, which is also not the case of the complainant. Even as recorded by the District Forum, as seen from the judgement ?admittedly the first and second opposite parties rendered service in repairing the vehicle?. This being the position, as service providers, being the agent of the third opposite party, it should be held, that the first and second opposite parties have not committed any deficiency in serviced. Therefore, there cannot be any liability, to pay any amount to the complainant by the first and second opposite parties. If the District Forum had find fault with the first and second opposite parties in providing the service, negligence, then only the Consumer Forum could come to the aid of the consumer, enabling the Consumer Forum also to issue direction to pay compensation. In this view, when there is no finding of negligent act or deficiency in service on the part of the first and second opposite parties, we feel, with certainty that the direction issued by the District Forum, directing the opposite parties 1 to 3, to pay compensation for mental agony, as if, first and second opposite parties had caused any mental agony is factually incorrect, legally unsustainable, and in this view, at present, we conclude, the order against the first and second opposite parties, regarding the second direction should go.
9. A consumer/purchaser of a vehicle is entitled to have the benefit, for the money paid by him, based upon the assurance given by the opposite parties or based upon the contract entered into between the parties. Our endeavour by going through the entire complaint, ended in failure, to note any manufacturing defect, leading to deficiency, namely not giving proper mileage. As and when the complainant reported about the problems, if any, in the fuel pump or in the gear box, those defects were rectified. As rightly submitted on behalf of the appellants, in a vehicle, if certain part of the Engine is defective, the consumer is entitled for replacement that part alone, and not entitled to replacement of the entire vehicle, unless it is shown that the defective parts made the vehicle not only immobilized at present, but also that would immobilize the vehicle in future, which is not the case here. This being the position, when on the basis of inefficiency in fuel capacity, fuel pump was replaced and on the basis of slow pick up, gear box was also changed, and after the change of these parts, as seen from the records, further complaint was not made. Therefore, taking into account that the vehicle was taken to the service providers for free service, frequently or for replacement of certain spare parts alone will not take us or compel us to arrive a conclusion that, as if, the vehicle was having manufacturing defect or other defects, which cannot be rectified at all, warranting replacement of the vehicle. The District Forum without giving any finding, only on the basis of the fuel efficiency was, not to the satisfaction of the complainant, ordered replacement of the vehicle, which is not in accordance with law and even we would say, it is not in accordance with the terms and conditions of the purchase.
10. The complainant has not produced, either the manual of the vehicle, which may indicate, what was the fuel efficiency declared or has not produced any brochure or advertisement, wherein the opposite parties would have declared about the mileage, thereby attracting the purchasers or consumers. In that case, if the vehicle has not given the assured mileage, as per the Brochure, issued by the third opposite party, then we would come to the aid of the purchaser, to replace the vehicle, not otherwise. It is the specific case of the opposite parties, that they never promised that the vehicle would give 8 to 9 kms per litre. In the absence of any such assurance by the opposite parties or in the absence of any such advertisement by the opposite parties, for fuel deficiency if any, ordering replacement of the vehicle is unjust, since the efficiency of the vehicle especially this kind of goods carrier, would depend upon not only the road condition, weight, mode or method of driving such as frequently changing the gear, suddenly giving acceleration etc., The complainant has also not filed any expert opinion indicating, what kind of mileage is expected, from this kind of vehicle. Even assuming that reasonable mileage is expected as claimed by the complainant 8 to 9 kms per liter, some of the documents prove that the vehicle has given such mileage and therefore, ordering replacement of the vehicle is not proper.
11. As seen from Ex.B1, mileage check up said to have been done by one Kumaran Auto Works was 5 kms, when the vehicle had run 17,786 kms. As seen from Ex.B2, the mileage was worked out as 6.1 kms., Ex.B3 says at some point of time, mileage worked out 8.28 kms., and 7.41 kms per liter. Further, as seen from Ex.B8, wherein the complainant or her husband, signed fuel average was worked out at 7.04 kms, at the average speed of 55 to 60 kms. If further disclosed, when the vehicle was unladen condition, it had given 8.29 kms., satisfying, the customer also signed. Therefore, it should be construed, based upon, unquestionable documents, in the absence of any other positive document on the side of the complainant, that there was reasonable mileage and when the opposite parties have not pr
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omised or assured any mileage, for the mileage deficiency or efficiency, ordering replacement of the vehicle in the absence of manufacturing defect, may not be legally sound, which was not properly considered by the District Forum. This Commission as well as the National Commission, has repeatedly held that if a consumer purchased some machineries and some parts, if it was found as manufacturing defect, that part alone can be replaced and ordering replacement of the entire machinery will be prejudicial to the interest of manufacturer, that too, when a manufacturing defect is not made out. For the reasons recorded by us supra, when the opposite parties have not committed any deficiency or negligent act, and when the complainant has not proved manufacturing defect, the order of the District Forum is erroneous, liable to be set aside. 12. In the result, the appeal is allowed, the order of the District Forum in OP No.70/2004, dt. 21.09.2007 is set aside, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost, throughout. 13. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellants duly discharged, since appellants succeeded, and there is no need to retain the FDR.