D.O.F. 21.10.2009 D.O.O. 02.06.2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri.K.Gopalan : President K.P.Preethakumari : Member Smt.M.D.Jessy : Member Dated this the 2nd day of June, 2011. C.C.No.286/2009 Abdul Fathah, S/o. Abu Haji, P.A. Surgicals, : Complainant Yogasala Road, Kannur-1 (Rep. by Adv. G.V. Pankajakshan) 1. The Managing Partner, Arjun Associates, Talap, Kannur-2 (Rep. by Adv. P. P. Bhargavan) 2. The Chairman, : Opposite parties Ultra Motor India (P) Ltd, 19, Okhla Industrial Estate-III, New Delhi. (Rep. by Adv. Jaison Joseph) 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 party to replace the vehicle of the complainant and to pay ` 25,000 towards compensation and the cost of this proceedings. The case of the complainant in brief is that complainant purchased an electric two-wheeler from 1st opposite party by brand name ‘Ultra Powered Velocity’ on 20.02.2008 for ` 35,235. 1st opposite party assured regarding the quality and performance of the vehicle as well as its battery. The main attraction of this vehicle is that it is run by battery. Since it is run by battery it is the prime part of vehicle. The vehicle has a warranty of 365 days and battery for 180 days. Complainant purchased this vehicle attracted by advertisement in media and publication in papers by 2nd opposite party and assurance made by 1st opposite party. Soon after purchasing the vehicle it is started showing trouble, mainly the starting trouble. It took much time for starting the vehicle due to the fault of battery. The defect was informed to 1st opposite party at the time of 1st servicing itself. The service man of the 1st opposite party informed complainant that the problem was due to the battery and the same was cured. But after service also the problem was not solved and the vehicle was taken again to 1st opposite party. At that time the 1st opposite party assured that the problem will be solved only after running the vehicle for some more time. Complainant taken back the vehicle believing the word of 1st opposite party . But the problem did not solved even after that and the same was informed to 1st opposite party during the subsequent service also. 1st opposite party has not taken any steps to replace the battery of the vehicle on the strength of warranty. As per the Owners Manual the first 3 services were free. But till 3 services were over 1st opposite party has informed that the battery was defective and the same has to be replaced for curing the defect. It was only in the fag end 1st opposite party informed that the battery is having some manufacturing defect and the replacement of the battery and allied spare parts is the only way to get the vehicle defect free. Complainant entrusted the vehicle with 1st opposite party Expecting the battery will be replaced the strength of warranty without cost but 1st opposite party informed to pay ` 11,000 saying that complainant is not eligible for warranty. Since the malfunctioning of the vehicle took place due to manufacturing defect during the warranty period the opposite party is liable to replace the battery. The complainant is entitled to get the battery replaced and get the vehicle defect free. Lawyer notice was sent to 1st opposite party. He replied admitting the defect but was not ready to solve the problem. Since the grievances not solved complainant has no other way except approach the Forum. Hence this complaint. Pursuant to the notice 1st & 2nd opposite parties entered appearance and filed version separately denying the allegations of the complainant. The contents of version of 1st opposite party in brief are as follows : 1st opposite party is the dealer of 2nd opposite party who is the manufacturer. Complainant purchased an electric two-wheeler on 20.02.2008. This opposite party had not issued any warranty or guarantee. Vehicle was sold subject to given by 2nd opposite party. The vehicle has warranty of 365 days or 12,000 Kilo Metres and battery has 180 days of 600 Kms. This opposite party has not any assurance with regard to the quality. Complainant selected the vehicle of his own choice after test drive. There is no inducement on the part of 1st opposite party. It is false to say that the vehicle has problem soon after the purchase. But allegation of the complainant with respect to the starting problem is also false. Complainant brought the vehicle for 3rd service on 14.08.2008 and complainant stated that he was not using the vehicle for quite sometime and the battery charge appears to be low. Battery was charged on the same day. The vehicle again brought on 23.10.2008 for minor check up. There was no complaint raised at that time. Complainant brought the vehicle again 14.03.2009. There was no charge for the battery. By the time the vehicle had run 7,325 Kilometres. On examination no defects was found. Then it was brought on 30.03.2009 and demanded replacement of battery. There was no defects to the battery. But the complainant insisted to replace the battery free of cost. Since the warranty was expired replacement of free of charge was not possible and complainant was asked to pay price of the battery. When he heard the price of the battery he said he will try to get it from outside. As per the warranty the application of the manufacturer is only to repair or replace the defective part if any. This opposite party is not liable to pay any compensation. Hence to dismiss the complaint. 2nd opposite party filed version denying the allegations of complainant as follows. The complainant suppressed material facts. The defects of the vehicle was not reported to this opposite party before the acceptance of notice. Since it has not been informed in relevant time complainant is not entitled to get any compensation from this opposite party. The complainant deliberately suppressed the fact about the distance covered by the vehicle. As per the warranty the vehicle has the warranty for a period of 365 days and 180 days for the battery. No defects has been informed within the stipulated period. It is not correct to say battery is a prime part of the vehicle. Battery can be replaced. No mental agony was suffered by complainant due to the act of this opposite party. Functioning of battery depends upon how does it has been handled. It is important to note that the motor may get ‘cut off’ at 80% discharge of the battery as indicated in the battery level indicator. There is no deficiency in service on the part of this opposite party and complainant is not entitled for any compensation and it is prayed to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency in service on the part of opposite parties ? 2. Whether the complainant is entitled for any relief ? 3. Relief and cost. The evidence consists of oral evidence of PW1, DW1, Ext.A1 to A4. 2nd opposite party has not adduced any evidence. Issues 1 to 3 Admittedly complainant purchased an electric two wheeler on 20.02.2008 from 1st opposite party. The vehicle has one year warranty whereas the battery has warranty of 180 days or 6000 Kms. The case of the complainant is that soon after the purchase of vehicle the battery became defective though reported before 1st opposite party the defect, 1st opposite party could not rectify the defect though promised during all the three services. After the third service when the period of warranty was expired 1st opposite party told complainant that there is manufacturing defect for the battery and it has to be changed in order to cure the defects of the vehicle. Non disclose of these facts during any one of the three free services is an unfair trade practice on the part of 1st opposite party. Since there is manufacturing defect 1st opposite party is also liable for replacing the vehicle. 1st opposite party took the contention that vehicle was repaired all the times it has been taken before him. It was first brought on 14.08.2008 since the battery charge appeared to be low battery and it was charged. Then it was brought on 23.10.2008 for minor check up. Therafter it was brought on 14.03.2009 with a complaint of no charge for the battery. At this time the vehicle covered 7,325 Kms. Since no defect was found on examination the vehicle was taken back and then again came back with demand of replacement. There was no defect to the battery. Complainant was told that the warranty is only for a period of 180 days or for 6,000 Kms. Since the warranty was over he was asked to pay the price of the battery and on hearing the price of the vehicle complainant informed that he will try to get battery from outside. 2nd opposite party, the manufacturer took the contention that the defects has not been informed him during the relevant period of warranty so that he is not liable to pay the compensation. Ext.A1 is the vehicle sales Bill which proves that the price as shown by the complainant ` 35,235 is correct. Ext.A2 is the lawyer notice sent by complainant to Arjun Associates, 1st opposite party. The notice covers the same pleadings of the complainant. Ext.A3 is the reply notice admitting the purchase. The reply stated that as per warranty policy the vehicle is warranted for one year and the battery has a warranty of 180 days of 6000 Kms. The detail of services also furnished as follows : Service Date Kilo Metre I 20/03/08 494 II 21/05/08 1652 III 14/08/08 3194 IV 23/10/08 14/03/08 7325 It has also stated that complaint of battery was reported on 14.03.2009, on 14.08.2008 the battery was charged during the regular service. It is also stated that the customer brought the vehicle for replacement on 30.03.2009. Complainant adduced evidence by way of chief affidavit in lieu of chief examination as follows : Immediately after purchase of it showed certain defects. There was starting trouble. It could not started many times. It was reported to 1st opposite party on the 1st service date itself and was recorded in job card by their Service Engineer. Their employees assured that it will be cured. But after service also the defects continued. He met again but pacified that it will become alright after some more use. On the 1st and 2nd service also the same complaint was brought to the notice of 1st opposite party but complainant was mislead by wrong information. They were cheating the complainant without replacing the battery. The first three services were free. Opposite party is liable to replace the spare parts free of cost within the warranty period. They told wrong stories till the expiry and therafter told the complainant that the defects can be cured only changing the battery. Even after legal notice 1st opposite party did not repair the vehicle and cured the defect by replacing the battery still the scooter is with 1st opposite party. Since the defect is manufacturing one both opposite parties are liable for the deficiency in service. In the cross examination for the 1st opposite party complainant deposed thus : 2nd opposite party is the manufacturer. It is the advertisement by 2nd opposite party that attracted complainant to purchase the vehicle. It is not noted how much Kms the vehicle has covered when the vehicle entrusted atlast. After reporting the 1st complainant the vehicle was continuously used but the time of charge reduced. There is no document to show that it was reported that the battery was in default before the expiry of warranty. Copy of the job card was not given to complainant. It is not correct to say that there was no fault to battery till the three services were over. It is also not correct that sample battery was taken when asked to change the battery. During the course of cross examination of 2nd opposite party complainant deposed that the vehicle was continuously used for one year. The battery was in default right from the beginning. He has also admitted that he has not seen the condition in the manual that every two months the working condition of the battery should get examined. Complainant subsequently produced the Owner’s Manual, though not produced earlier at the time of cross examination marked as Ext.A4. The main case of the complainant is that the vehicle showed malfunctioning from the beginning itself. The starting of the vehicle is not proper and taken much time to start the vehicle. From the 1st service itself the complainant brought the problem before 1st opposite party and the same got entered in the job card. The case of the opposite party that the defects of the battery was reported only after third service. This could have been easily proved if the job card was produced. Complainant adduced evidence that the complaint was recorded in job card. If that be so, 1st opposite party has to produce job card before the Forum. Complainant deposed in cross examination that copy of job card was not given to complainant. It was kept by 1st opposite party. 1st opposite party has no explanation why he has not produced job card. DW1 in his cross examination deposed that “km[m-cW customer hn sImp h¶m XI-cm-dp-IÄ tcJ-s¸-Sp-¯p-¶Xv job cardþem-Wv. CX-\p-k-cn-¨mWv hn-bpsS XI-cm-dp-IÄ R§Ä a\-Ên-em-¡p-¶-Xv. B job card R§-fpsS h-i-am-Wp-m-hpI. Customer¡v job cardsâ copy sImSp-¡pT. Gate pass sImSp-¡m-dn-Ã.” This evidence makes it clear that there is entry in the job card with respect to the fault of the vehicle. Complainant adduced evidence that default of the battery has been recorded in the job card. He has also given evidence that the copy of the job card has not been given to complainant. Under such circumstance the burden of proof lifts upon the shoulders of 1st opposite party to prove, whether or not, it has been recorded in job card with respect to the fault of the battery, by producing the job card before the Forum, as he is the custodian of the document. Since it is a most importance document and the apt document to reveal the actual truth which alone is sufficient to establish at what point of time the alleged fault recorded. DW1 admitted that the defects will be recorded in the job card. Thus there is no justification in non-production of job card by 1st opposite party. This suppression is not without reason but can very well be assumed that it is intended to hide the truth that the fault of battery has been recorded without much delay of purchase of scooter. Thus the circumstances leads to a conclusion that 1st opposite party somehow or other managed to pacify the complainant consumer to hide the actual manufacturing defect from the complainant till the expiry of free service. This is clearly an unfare trade practice. 2nd opposite party contended that complainant suppressed material facts before this Forum. The defects of the vehicle was not alleged to be reported to him. The dealer has the liability to report the defect to manufacturer. Complainant customer approached the dealer from whom the vehicle was bought and reported the fault. Then it is dealer who has to report the matter to manufacturer. If unfare trade practice played by the dealer manufacturer cannot escape from the liability. The circumstances and the available evidence reveals that the unfare trade practice done by the dealer is to save the manufacturer. The evidence of DW1 proves that the job card is kept by 1st opposite party by the direction of 2nd opposite party. That itself is a clear indication that the same is not produced before the Forum with his instruction. If he is of very particular to prove the truth he could have ask 1st opposite party to produce the job card. Hence the role of the manufacturer in committing unfare trade practice is undoubtedly clear. 1st opposite party has asked to complainant to replace the battery since the defect suffered was manufacturing one. Hence 2nd opposite party cannot escape from the liability. It is seen that the complainant’s vehicle has been continuously used for more than one year. Ext.A4 Owner’s Manual will reveal that it has run 7,325 Kms. Thus it is clear to certain extent in any way the vehicle was used, whatever may be the complaint alleged to be suffered by the vehicle. Considering the present situation there is no meaning in ordering to replace the battery at this juncture. It can be assumed that the condition of the vehicle undoubtedly become worthless. Hence we are of opinion that half of the price of the vehicle has to be returned by opposite parties. 1st opposite party has to pay this amount ` 17,600 to complainant and he shall be entitled to recover half of that paid amount from 2nd opposite party. Hence issues 1 to 3 are found in favour of complainant and order passed accordingly. In the result, complaint is allowed directing the opposite parties to pay ` 18,000 (Rupees Eighteen Thousand only) to complainant as compensation and cost within one month from the date of receipt of this order. 1st opposite party has to pay this amount first to complainant and 1st opposite party is entitled to recover half the amount paid from 2nd opposite party. Since the vehicle is already in the custody of 1st opposite party it is left with opposite parties to handle according to their choice. If 1st opposite party failed to pay the amount within stipulated time complainant is entitled for 12% interest from the date of order till the payment. Complainant is at liberty to execute the order after the expiry of 30 days as per the Provisions of Consumer Protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the Complainant A1. Vehicle sales bill. A2. Copy of Lawyer notice dated 14.07.2009. A3. Reply letter dated 20.07.2009. A4. Velociti Owner’s Manual Exhibits for the opposite parties Nil Witness examined for the complainant PW1. Complainant Witness examined for opposite party DW1. M.K. Sathyan /forwarded by order/ SENIOR SUPERINTENDENT
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
