DOF.14.05.2009
DOO.07.09 .2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR
Present: Sri.K.Gopalan : President
Smt.K.P.Preethakumari : Member
Smt.M.D.Jessy : Member
Dated this, the 7th day of September 2011
CC.120/2009
Abdul Salam,
No.3/619, Hajee Building,
Nr.Moopanpara,
Valapattanam.P.O.,
Kannur. Complainant
(Rep. by Adv.Sreeja.D.K)
1.Kichu Motors,
TC.49/962, Sree Moolam Nagar,
Manakkodu,P.O.,
Thiruvananthapuram.
(Rep. by Adv. K.Kusalakumar)
2. Eco Vehicles Pvt.Ltd.,
Kasa Brihjita,10,Brooten Road,
M.G.Road Cross,
Banaglore 560 025
(Rep. by Adv.K.Kusalakumar) Opposite parties
O R D E R
Sri.K.Gopalan, President
This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite parties to [pay an amount of `34,990 as price of the vehicle together with `15,000 as compensation and a sum of `5000 as cost.
The case of the complainant in brief is as follows: Complainant purchased electrical two-wheeler, the product of opposite parties. Attracted by advertisement the complainant contacted 1st opposite party and the vehicle was delivered at Kannur with assurance that the vehicle would run more than one lakh k.m without any mechanical problem. He has also promised to provide up to date after sale service. Complainant purchased the vehicle attracted by the advertisement and on the strength of the promise of 1st opposite party 2nd opposite party is the manufacturer of the vehicle. But the vehicle became defective useless to run even before covering 100 km. The condition was informed to 1st opposite party but he did not respond positively. Complainant purchased the vehicle by paying `34,990 but he could not use the vehicle even to run a 100 k.m. On enquiry it is understood almost all the vehicles manufactured by the 2nd opposite party became defective and useless. Due to the manufacturing defect of the vehicle the complainant could not use the vehicle not more than 100 km and thereby sustained loss and sufferings. Lawyer notice was sent calling upon to take back the vehicle and to return the price of the vehicle. The 2nd opposite party sent reply denying the allegation. 1st opposite party kept silence. The deficiency in service by delivering defective vehicle by the opposite parties complainant suffered financial loss and much sufferings. Hence this complaint.
Pursuant to the notice 2nd opposite party made appearance and 1st opposite party remained absent. 1st opposite party was called absent and set exparte but afterwards petition moved to setaside the exparte order and the petition was allowed. Both parties filed version jointly.
The contention taken by the opposite parties in brief are as follows:
It is the complainant who has to prove that he has purchased Eco- consumic C-1 Electrical two wheeler. The question of attraction of advertisement, the assurance with regard to maintenance service, that the vehicle became defective before running 100 km etc. are not correct. It is also not correct to say that above matter had been informed to opposite parties and opposite parties prolonged the matter telling unnecessary things. The allegation that he could not use the vehicle which he has bought for 34,990 is not correct. So also the allegations that almost all the two wheelers manufactured by opposite party were useless and he suffered the loss due to the manufacturing defect of 2nd opposite party, that he has taken steps due to irresponsible attitude of 2nd opposite party are all not correct. It is not correct to say that complainant had sent notice to opposite parties demanding to return the amount by taking back the vehicle. It is also not correct to say that 2nd opposite party sent notice denying the allegations and saying with baseless things are incorrect. The allegations that complainant suffered irremediable loss due to irresponsible attitude of opposite parties is false. He is not entitled for any remedy. The allegations are unsustainable and hence to dismiss the complaint.
On the above pleadings the following issues have been taken for consideration.
1. Whether there is any deficiency on the part of opposite
parties?
2. Whether the complainant is entitled for the relief as
prayed in the complaint?
3. Relief and cost.
The evidence consists of the affidavit filed by complainant and Exts.A1 to A11. Opposite party remained absent during the evidence stage. Both opposite parties remained absent continuously though there were several posting for the purpose cross examining the complainant
During trial opposite party had been maintained the habit of remaining absent many occasions. When the matter was posted for cross examination of the complainant, opposite party remained absent on the particular day. It was again posted for cross examination and opposite party made representation but not ready for cross examination. The matter was again posted for cross examination on cost. Next posting date also opposite party was not ready to cross exam the complainant. It was again posted for cross examination. On that day also opposite parties were not present. They did not pay the cost also. Since complainant already filed the affidavit the documents Exts.A1 to 11 marked and posted the matter for further evidence. Opposite party did not appear on the posting date. Since opposite party continuously remained absent not taking interest to cross examine the complainant, Complainant’s evidence closed and posted the mater for opposite party’s evidence. But that posting day also opposite parties remained absent and hence closed the evidence posting the same for hearing. Though there are several postings meant for hearing, the opposite parties did not turn up and finally the matter has been taken up for orders.
Issue Nos.1 to 3
The specific case of the complaint is that attracted by the advertisement he has purchased from 1st opposite party an Electrical two wheeler manufactured by 2nd opposite party for `34,990. 1st opposite party delivered the vehicle at Kannur. He has assured that the vehicle should run more than one lakh km and also made assurance of up-to-date after sale service. The vehicle soon became defective even before running 100 km. The matter was reported to opposite parties but they did not respond positively. Then lawyer notice was sent calling upon to refund the amount. But there was no result. Opposite party in their version stated that none of the allegations of complainant are correct. He has stated that purchase for `34,990 is a matter to be proved by complainant.
Complainant filed affidavit evidence and marked Exts.A1 to A10 to substantiate his case. Exts.A3 sales Bill issued by kitchu motors proves that complainant Abdul Salam A.P has purchased Motor No.XF2006070155 EKD COSMIC-1 for an amount of `34,990. Ext.A3 also certified that the goods mentioned in the bill are warranted to be of the nature and quality which it purports to lie. Exts.A1 proves that the insured’s declared value of vehicle accessories is `33240. Ext.A2 letter proves that Kichu Motors 1st opposite party has sent necessary papers for the permanent Registration. The content of Ext.A2 also proves that 1`st opposite party is the dealers for EKD vehicles Pvt. Ltd. Bangalore, the 2nd opposite party.Ext.A6 certificate of Registration also shows the Dealer’s names. Ext.A7 is the copy of the legal notice. Ext.A8(a) and Ext.A8(b) proves that complainant sent legal notices to opposite parties 1 and 2 respectively calling upon to replace the vehicle.
Ext.A9 reply sent by 2nd opposite party M/s.EKO Vehicles (P)Ltd. States that it may be true that the complainant had purchased an Electric two wheeler bearing Registration NO>KL.13.R.4429 on 23.3.2007 from M/s./Kichu Motors. In the version jointly filed by opposite parties 1 and 2 stated it is complainant who has to prove that he had purchased the vehicle. But he has not specifically stated that no such vehicle was sold by him to complainant. In Ext.A9 what he has stated is it may be true that the complainant had purchased the vehicle. The Registration No.K.13.R.4429 also given. Ext.A2 also bears the No.KL.13R.4420. Ext.A6/RC also bears the same number. The available facts given above proves beyond doubt that the said vehicle manufactured by 2nd opposite party had been purchased by complainant from 1st opposite party/dealer for 1st opposite party for an amount of 33,240. Anyhow the reply notice of 2nd opposite party sent on 8.1.09 has promised to replace the battery if found defective. Even in notice his defense is thus:
“Your client had neither contacted my clients nor had on any occasion, lodged a complaint with them with regard to the working of the vehicle. Hence there is no loss on your clients part, for him to demand refund of the money”.
Except saying that what complaint alleged was false, opposite party could not specifically deny in detail that the vehicle was not defective. He had contended that no complaint was lodged before them, as if, the whole defect would have been cured then and there on such report. Ultimately there is no answer for not treating the lawyer notice as complaint. This itself is sufficient to cast deficiency on the part of opposite parties on delivering defective vehicles.
The vehicle became defective within a short period of time. Ignoring to attend the defect the opposite party is only assign that they were aware of the fact that it was not curable. Or otherwise on hearing the complaint, they would urge to solve the problem without delay since it is a new type of product in the market. Complainant purchased his vehicle by spending 33,240 in the year 2007. It cannot be believed that the complainant will simply sit idle without informing the problems to opposite parties. The general behavior of our people under such circumstances in ordinary course, cannot be discarded while assessing the situation.
The report of the expert commissioner on his detailed inspection found that vehicle is an electric powered one and had covered only 95 kilometers, but Battery Assly has been completely discharged, and Electric Motor not functioning and both Unit were in a completely unserviceable condition, Electrical systems and light Assly and control mechanism were not working. The report Ext.C1 makes it clear that the vehicle was not road worthy condition within a time covering 95 km. No doubt a consumer who had spend rupees more than thirty thousand rupees with expectation of owing a latest vehicle would certainly fed up with disappointment suffering high degree of mental agony with feeling of shame in front of others. Apart from facts available the report of the expert also reveals that there is manufacturing defect. The opposite parties are liable to meet the loss sustained by the complainant.
On going through the evidence and on discussion in details we find that there is manufacturing defect to the vehicle and the opposite parties are liable to refund the price of the vehicle. The vehicle became defective within four days of its purchase even without running 100 km.The disappointment and mental sufferings of complainant cannot be ignored and we are of opinion that the complainant is entitled to get an amount of `5,000 as compensation together with `1000 as cost of this proceeding. Thus the issues 1 to 3 are found in favour of complainant.
In the result, the complaint is allowed directing opposite parties to refund an amount of 33,240/-(Rupees Thirty Three Thousand Two hundred and forty only) as price of the vehicle and `5,000 (Rupees Five Thousand only) as compensation together with a sum of `1000 (Rupees One Thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is entitled for interest @12% on the amount of price from the date of filing of this complaint till the date of order and there from interest @ of 12% for the entire amount due till receiving the amount. The complainant is at liberty to execute the order as per the provisions of consumer protection Act. Opposite party is entitled to take back the vehicle on payment of the amount.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the complainant
A1.Cover note issued by Unite India Insurance Co.
A2.Letter dt.23.3.07 issued by OP1
A3.Sales Bill issued by 1st OP
A4.Receipt dt.24.3.07 issued by OP1
A5.License issued by Motor vehicle Dept. to the complainant
A6.Copy of the Registration of the vehicle KL.13.R.4429
A7.Copy of the lawyer notice sent to Ops.
A8.Postal AD
A9. Reply notice sent by OP2.
A10.User Manual issued by OP
A11. Insurance policy issued by United India Insurance Co.
Exhibits for the opposite party: Nil
Exhibits for the court
C1.Commission report
Witness examined for either side: Nil
/forwarded by order/
Senior Superintendent
Consumer Disputes Redressal Forum, Kannur.
