NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 2132 OF 2016
(Against the Order dated 22/04/2016 in Appeal No. 818/2012 of the State Commission Delhi)
1. M/S. MARUTI SUZUKI INDIA LIMITED
(FORMERLY KNOWN AS MARUTI UDYOG LIMITED,) THROUGH MR. SURENDER KUMAR ADVISOR LEGAL,REGISTERED OFFICE AT PLOT NO. 1, NELSON MANDELA ROAD, VASANT KUNJ
NEW DELHI-110070
...........Petitioner(s)
Versus 
1. RAJIV SHARMA & ANR.
R/O. B-5/192, DDA S.F.S. FLATS SECTOR 8, ROHINI,
NEW DELHI-110085
2. M/S. D.D. MOTORS
WAZIRPUR INDUSTRIAL AREA, BEHIND PUNJAB KESRI PRESS, RING ROAD,
NEW DELHI
...........Respondent(s)

BEFORE: 
 HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER

FOR THE PETITIONER :
MR. VIPIN SINGHANIA, ADVOCATE WITH
MR. DIWAKAR, ADVOCATE
FOR THE RESPONDENT :
MR. TARUN KUMAR TIWARI, ADVOCATE FOR R-1
ALONGWITH RESPONDENT IN PERSON
NEMO FOR R-2

Dated : 17 January 2024
ORDER

1.       The present Revision Petition (RP) has been filed by the Petitioner(s) against Respondent(s) as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 22.04.2016 of the State Consumer Disputes Redressal Commission, Delhi, New Delhi, (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 818/2012 in which order dated 08.08.2012, District Consumer Disputes Redressal Forum VI, (Dist. New Delhi) (hereinafter referred to as District Commission) in Consumer Complaint (CC) no. 1674/2005 was challenged, inter alia praying to set aside the order passed by State Commission.

 

2.       While the Revision Petitioner (hereinafter also referred to as OP-1) was Appellant; the Respondent-1 (hereinafter also referred to as Complainant) was Respondent-1 and the Respondent-2 (hereinafter also referred to as OP-2) was Respondent-2 in the said FA/818/2012 before the State Commission, the Revision Petitioner was OP-1; Respondent-1 was Complainant and Respondent-2 was OP-2 before the District Commission in the CC no. 1674/2005.

 

3.       Notice was issued to the Respondent(s). As Respondent-2 did not appear despite service of notice, Respondent-2 was proceeded ex-parte. Parties filed Written Arguments/Synopsis on 07.08.2023 (Petitioner) and 02.11.2023 (Respondent-1) respectively.

 

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:-

 

The complainant purchased a new Maruti Zen from respondent-2/OP-2, the dealer, based on the vehicle's reported excellent performance with a mileage of 16-18 kilometers per liter of fuel under city conditions. This claim is substantiated by an advertisement published in the Times of India on 20.10.2004. However, the complainant alleges that the vehicle has not achieved the promised or advertised mileage, registering an average mileage of only 10.2 kilometers per liter of petrol. Attempts to address this concern by visiting the dealer on 26.06.2004, and subsequently another dealer did not result in an improvement in the vehicle's mileage. The complainant then corresponded with the Petitioner/OP-1, the manufacturer, but received no resolution to their grievance. Dissatisfied with the lack of improvement in mileage and inadequate responses from the parties involved, the complainant approached the District Consumer Disputes Redressal Forum seeking remedies, including a refund of the vehicle's purchase cost, along with interest, registration expenses, and insurance totaling Rs. 4,00,000/-.

           

5.       Vide Order dated 08.08.2012, in the CC no. 1674/2005 the District Forum has allowed the complaint and awarded compensation of Rs. 1,00,000/- to the complainant.

 

6.       Aggrieved by the said Order dated 08.08.2012 of District Forum, Petitioner appealed in State Commission and the State Commission vide order dated 22.04.2016 in FA/818/2012 has upheld the District Forum’s order and dismissed the appeal. 

 

7.       Petitioner has challenged the said Order dated 22.04.2016 of the State Commission mainly/inter alia on following grounds:

 

  1. The District Forum's decision, rendered without eliciting evidence from both parties, deviated from the intended scheme of the Act. The crux of the complaint rested on misleading information about the vehicle's performance, specifically its mileage. The advertisement claiming a mileage of 16.7 kilometers per litre relied on Autocar India's study, a reputable magazine. However, the State Commission failed to substantiate the falsehood of this claim, particularly regarding the source. Moreover, the Commission's reliance on a correspondence as evidence of falseness was misguided. The interpretation suggesting that the OP disowned the alleged representation was incorrect. The OP aimed to disclose the source without intending to deny the representation itself. Additionally, the State Commission overlooked various factors influencing fuel economy, crucial for achieving the represented mileage under specific conditions. These essential aspects were not duly considered by the lower courts, contributing to their erroneous conclusions.

 

  1. The order assumes the stated mileage representation is false based solely on a correspondence, without addressing the achievability of the claimed mileage. The mentioned correspondence discusses fuel economy under normal driving conditions, ranging between 12-15 kilometers per litre, and explores possibilities for further optimization. It does not admit to any falsehood in the representation. The order overlooks the complainant's responsibility to substantiate claims of unfair trade practices, lacking the necessary evidence and prerequisites for establishing such claims. The determination of deficiency in service based on mileage misinterprets the Act's definition of "deficiency" and disregards the manufacturer's warranty. Moreover, the assessment of fuel economy fails to consider various factors that influence mileage, suggesting that it is not determined by a fixed formula.

 

  1. The court's decision regarding the claim lacks proper establishment by the complainant, thus undermining procedural integrity and the essential burden of proof. To substantiate claims of unfair trade practices, proving false or misleading representation is crucial, yet this element remains unsubstantiated in this case. The order establishes the manufacturer's alleged false representation without sufficient evidence, overlooking the requisite examination of defined parameters. The application of the provision on "Unfair Trade Practice" seems misaligned with the act's essence, demanding thorough scrutiny regarding falsity and representation before categorizing it as such. The order appears to neglect the consideration and appreciation of evidence, warranting a re-examination under the Act's revisional jurisdiction.

 

8.       Heard counsels of Petitioner and Respondent-1. Respondent-2 was proceeded ex-parte.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

 

  1. The counsel for Petitioner/OP-1 argued that the advertisement cited by the complainant emerged five months after the car purchase, making it an irrelevant factor in the complainant's decision to buy. The complainant's assertion of low mileage primarily rested on verbal assurances from the dealer, not the advertisement. The court's overemphasis on the advertisement and letter, without due consideration for the main argument of the Consumer Complaint, represents a misdirection. The complainant failed to substantiate the claim of low mileage, a legal obligation that necessitates expert evidence. The advertised mileage of 16.7 kilometers per liter, based on a magazine report, differs from the content of the letter, which advises on optimizing mileage. Mileage is inherently variable, influenced by various factors, as established in prior cases, and the reliance on petrol receipts alone lacks sufficient evidence for asserting low mileage. The finding of an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act doesn't align with the case's pleaded facts, rendering the conclusion perverse. The appeal was decided without adequate consideration of all raised grounds.

 

  1. The counsel for Petitioner/OP-1 relied on following judgements:-

 

  1. In Sophy Thomas v. Indus Motors Co. Pvt. Ltd., 2015 SCC OnLine NCDRC 2142, the National Commission held that:-

 

“12. Learned Counsel for the respondent has placed reliance on judgment of this Commission in II (2015) CPJ 32 (NC) — EM Pee Motors Ltd. v. Ramesh Kirloskar Motors Pvt. Ltd. and Toyota Kirloskar Motors Pvt. Ltd. v. Ramesh Kumar Bamal 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.

 

8. 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-à-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-à-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-à-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.”

 

  1. In Sadanand Bhojraj Adyanthaya (Dr.) v. Chairman, 2015 SCC OnLine NCDRC 3276, the National Commission held that:-

“8. In the present case also, it has been clearly stated in the reply filed by respondents no. 1, 2 & 5 before the District Forum that average of the vehicle is certified as per ARAI certification required under Section 115 of Central Motor Vehicle Rules/Act and average given by a vehicle depends on several factors such as driving habits which having person to person and the driving conditions. Since the vehicle in question was driven by the complainant on city road highway and not on a testing track, the average which the car was able to achieve on the testing track could not have been achieved. Moreover, the person who drive the vehicle on a testing track is a trained person who knows how much should be the speed at a particular point on the track, which gear is to be used at what speed and when the break if necessary is to be applied. Those ideal testing conditions are not available on a city road or even on a highway. There was no claim by the manufacturer that car gives average of 17.7 kms per liter of petrol on a city road or on a highway. Therefore, there was no false assurance given to the complainant.”

 

  1. In KLM Royal Dutch Airlines v. DG of Investigation and Registration, (2009) 1 SCC 230, The Hon’ble Supreme Court held that:-

 

“24. …… Element of unfair trade practice definitely stands at a higher and onerous platform than the deficient service. For making out a case of unfair trade practice, an element is involved to the extent of making false and misleading statement and representation and in order to make a case of unfair trade practice, such ingredients which are part and parcel of the concept of unfair trade practice have to be alleged and must be proved and established. In the present case there is neither such allegation of any such false and misleading representation nor is there any proof provided by way of evidence, which also we have perused. Therefore, there could be no finding by the MRTP Commission that the appellant is guilty of unfair trade practice. That being so, the order of the Commission cannot be upheld and the same is set aside.”

 

  1. In SGS India Ltd. v. Dolphin International Ltd., 2021 SCC OnLine SC 879, the Hon’ble Supreme Court held that:-

 

“20. This Court in a Judgment reported as  v. , held the the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:—

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

 

  1. Union of India vs. Ibrahim Uddin, (2012) 8 SCC 148

 

  1. Branch Manager, Indigo Airlines vs. Kalpana Rani, (2020) 9 SCC 424

 

  1. Gopal Aggarwal vs. Metro Motors, (RP/1854/2011), NCDRC, 17.12.2019

 

  1. Telco Ltd. Vs. Brijmohini Chauhan & Anr. [2022 SCC Online NCDRC 549]

 

  1. Manali Singhal vs. Skoda Auto Volkwagen & Anr. [CC/1/2015]

 

  1. Sophy Thomas & Anr. Vs. Indus Motors & Maruti, 2015 SCC Online NCDRC 2142

 

  1. Dr. Sadanand Bhojraj Adyanthaya vs. Chairman, Maruti Suzuki India Ltd. & Ors., 2015 SCC OnLine NCDRC 3276

 

  1. The counsel for Respondent-1/complainant argued that the petitioner/OP-1, Maruti Suzuki India Pvt. Ltd., seeks a re-evaluation of facts presented in this Revision petition. However, it's crucial to note that the revisional jurisdiction doesn't typically intervene in concurrent findings of fact, as emphasized by the Supreme Court in various judgments. Both the District Forum and the State Commission arrived at their conclusions after considering the evidence on record. It is essential to draw the attention of this Commission to the statement provided by the OP company regarding the publication of a false representation of the mileage of the ZEN car in an advertisement in "Times of India" dated 20.10.2004 for the general public. The OP initially acknowledged the advertisement's basis as "Auto Car India" before the District Consumer Forum. Consequently, the District Consumer Forum categorized the claim as an "Unfair Trade Practice" and directed Maruti Suzuki to conduct authentic fuel efficiency tests and disclose the margin of error in future advertisements. However, in their appeal before the State Commission, the OP altered their stance, distancing themselves from the advertisement's publication by disowning it.

 

  1. The State Commission upheld the District Consumer Forum's finding, based on the material presented before the District Forum. Given that the impugned order was within the jurisdiction provided under the Consumer Protection Act, 1986 and no illegality or material irregularity was committed by the lower forum, the OP's request for re-assessment within the revisional jurisdiction is not be permissible. The impugned order have been passed after due consideration of the evidence available at the time.

 

  1. The counsel for Respondent-1/complainant relied on following cases:-

 

  1. In Rajiv Shukla v. Gold Rush Sales & Services Ltd., (2022) 9 SCC 31, The Hon’ble Supreme Court held that:-

 

“12. At this stage, it is required to be noted that on appreciation of evidence on record the District Forum as well as the State Commission concurrently found that the car delivered was used car. Such findings of facts recorded by the District Forum and the State Commission were not required to be interfered with by the National Commission in exercise of the revisional jurisdiction. It is required to be noted that while passing the impugned judgment and order [ v. , 2016 SCC OnLine NCDRC 702] the National Commission was exercising the revisional jurisdiction vested under Section 21 of the Consumer Protection Act, 1986.

 

13. As per Section 21() the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction.

 

14. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order [ v. , 2016 SCC OnLine NCDRC 702] the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21() of the Consumer Protection Act.”

 

  1. Rubi (Chandra) Dutta vs. M/s United India Insurance Co. Ltd., (2011) 11 SCC 269

 

  1. Lourdes Society Snehanjali Girls Hostel & Ors. vs. H & R Johnson (India) Ltd., and Ors. (2016) 8 SCC 286

 

9.       We have carefully gone through the orders of State Commission, District Forum, other relevant records and rival contentions of the parties. In this case, there are concurrent findings of both the fora below against the Petitioner herein. Extract of relevant paras of orders of State Commission is reproduced below:-

 

“2. Defence raised by M/s Maruti Suzuki India Ltd. (OP-1) in the District Forum was that the claim of the mileage of 16.7 km/It. is based on the information published by Auto Car India, 2004 issue. In other words, OP-1 washed its hands off from the alleged claim of the mileage 16.7 km/lt.

 

3. Ld. District Forum in its orders which are impugned observed that the advertisement floated by Maruti Suzuki India Ltd. highlighted mileage efficiency simply to promote sales. The fine print showing source of Auto Car India study is simply deceptive. Print was so small that it was not readable. Maruti Suzuki India Ltd. has thus adopted the 'mileage' to its advantage and without clarifying to the customers that it had not vouchsafed the accuracy.

xxxxxxx

 

7. Coming to the first objection raised by the appellant, the appellant in its letter dated August 2004 admitted that as per feedback received by them from their customers, the fuel consumption was 12 to 15 km/It, in normal driving conditions (with equal mix of city and highway driving with A/C on). Stand taken by the appellant in its letter dated August 2004 is an admission to the effect that the claim of mileage of 16.7 km/It. was false.

 

  1. Vehicle was admittedly/ purchased on 20.05.2014. The advertisement in question though appeared in the newspaper issue after a period of six months of the purchase i.e. on 20.10.2004 but it relates to the study by the Auto Car India in April 2004. In other words, the claim of mileage of 16.7 km/It. was made to the public at large prior to the purchase in question. On both these grounds, the appeal is devoid of merits. Before parting it may be mentioned here that Maruti Suzuki India Ltd. in its advertisement got printed the relevant lines in a very fine print. On the contrary the claim of 16.7 km/It. in respect of mileage is given in a bold print. To the reader it gives an impression that it is the Maruti Suzuki India Ltd. alone making the aforesaid claim. Appeal is, therefore, dismissed.”

 

10. Extract of relevant para of order of District Forum is also reproduced below:-

 

“On careful appreciation of matter in issue and other case law placed on record, we are of the view that Maruti Zen Car in its advertisement Annexure-II, in Times of India, has highlighted mileage efficiency alone to promote sale. The fine print showing source of Auto Car India study is only deceptive and so small as to be not readable when compared for 16.7km./lt. It has adopted the mileage to its advantage without a corresponding clear information to consumers that this is not vouchsafed by Maruti itself for accuracy, nor based on its own results. Such advertisements enhance sales enormously by inducing consumer without corresponding benefits. In our view OP-1 explained Auto Car-Sales data to explicit consumers and this is guilty of unfair trade practice.”

 

11.    Normally a prospective purchaser of a car enquires into the fuel efficiency feature of the car as an important aspect and makes comparative study of different brands/cars in the same segment with respect to their respective fuel efficiency. Car manufacturers and/or their authorized dealers attract their prospective clients with advertisements, either through print media or otherwise, including oral assurance, with a particular fuel efficiency of their car in terms of mileage per km. No doubt such claims are based on tests done in certain specified/ideal conditions and subject to observance of certain conditions, but in normal real-life situation it is difficult to achieve such ideal conditions. Hence, while some variation from the notified fuel efficiency is understandable, when such variation is large, the purchaser of such cars feels aggrieved/ cheated. Hence it is essential that where car manufacturer/dealers make any claims about the fuel efficiency of their cars, they should clearly specify all such test conditions under which such results were achieved and indicate broad range of fuel efficiency likely to be achieved in normal condition of driving in city, highway and/or mix of both. They should also disclose the source of such test results, period when it was done and who funded such test studies, mentioning specifically whether such test/study was funded by the manufacturer/dealer, whether partly or fully. We have carefully gone through the advertisement dated 20.10.2004 in this regard, and are of the considered view that it is a misleading advertisement. Issuance of such advertisement amounts to unfair trade practice on the part of manufacturer/dealer. The facts of present case are distinguishable from the one covered in some of the judgements of NCDRC relied upon by the Petitioner. We are in agreement with the concurrent findings of both the fora below.

 

12.    As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.”

 

13.    The Hon’ble Supreme Court in Rajiv Shukla vs Gold Rush Sales And Services Ltd. Civil Appeal No. 5928 of 2022, decided on 8th September, 2022, held that:- “13. As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction.

 

14.   We find no illegality or material irregularity or jurisdictional error in the order of State Commission, hence the same is upheld. Accordingly RP is dismissed.

 

15.     The pending IAs in the case, if any, also stand disposed off.

 
................................................
DR. INDER JIT SINGH
PRESIDING MEMBER