Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order :  15.09.2015

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To refund the price of the Bike i.e. Rs. 35,940/- ( Rs. Thirty Five Thousand Nine Hundred Fourty only )
2. To pay Rs. 5,000/- ( Rs. Five Thousand only ) visit to opposite party as expenditure.
3. To pay Rs. 500/- ( Rs. Five Hundred only ) as illegal charge of convector .
4. To pay Rs. 50,000/- ( Rs. Fifty Thousand only ) as mental torture and harassment.
5. To pay Rs. 5,000/- ( Rs. Five Thousand only ) cost of the suit.
6. To pay Rs. 2,100/- ( Rs. Two Thousand One Hundred only ) for notice.

2. Brief facts of the case which led to the filing of complaint are as follows:-

1. The complainant above named purchased Hero Electric Bike model wave bearing Chasis No. HJ26935 Motor No. 908892, Controller No. U01210352 charger no. 71104543 on 24.10.2004 and paid the full price Rs. 35,940/- only.
2. Just after the purchase the said bike started creating trouble as the locking system got failed causing mental torture amounting to deficiency in service and unfair trade practice for which opposite party are liable to compensate and refund the entire amount.
3. The receipt of the bike purchase was also given to the complainant bearing bill no. 246 dated 24.10.2011 for 35,940/-. ( Vide Annexure – 1 )
4. The warranty card of bike for one year was also delivered to the complainant which is attached as integral part of the same. ( Vide annexure – 2 )
5. The said bike was also insured by some General Insurance company and the receipt of insurance was also issued to the insured bearing insurance certificate no. USG1ME/2011003073 and the policy states from 24.10.2011 to 23.10.2012. ( Vide Annexure – 3 )
6. During the 1^st servicing on 25.11.2011 opposite parties took away the servicing coupons receipt without consent which proves malafide intention of opposite parties amounting to unfair trade practice.
7. There was convector defect in the said Bike for which complainant reported the same to opposite parties as the parts were under warranty despite that opposite parties charged Rs. 500/-amounting to unfair trade practice despite that convector defect could not be removed amounting to deficiency in service and mental torture. ( Vide Annexure – 4 )
8. The complainant had been to opposite party again on 01.06.2012 and requested to remove defect of convector and starting problem but opposite party could not remove and rectify the defects and told complainant to leave the vehicle in opposite party showroom so that defects can be removed within two days and as such complainant left the Bike in the showroom having receipt of possession of bike from opposite party. ( Vide Annexure – 5 )
9. The bike in question is still in possession of opposite party but defect could not be removed and lying with opposite party since 01.06.2012 as the same is not handed over to the complainant despite visits and enquiry since the date mentioned above great mental torture and harassment amount to deficiency in service for which opposite party is liable to compensate with interest and refund the bike price with interest.
10. The said above bike was purchased due to the reason that the same was without petrol but the said assurance from opposite party has failed as the complainant is an student and has to attend his class and paying the fairs to Rikshaw and tempo as the expenditure becoming unbearable and as such the intention to save money and petrol expenditure has failed and now to keep the said bike has become useless and as such keeping the said view complainant posted a notice to opposite party on 21.06.2012 to refund the bike price from opposite party together with interest and compensation but there was no response from opposite party causing great mental torture and deficiency in service. ( Vide Annexure – 6 )

3. The Opposite Party no. 2 in his reply to the Complaint Petition has submitted as follows :-

1. The present complaint is liable to be dismissed on the ground that there is prima facie no case against the opposite party no. 2. The complainant out of pure greed and nefarious intention has filed the aforesaid complaint and is wrongfully trying to extract compensation from the opposite party no. 2 without any deficiency of service.
2. No cause of action arisen in favour of the complainant to file the present complaint against the opposite party no. 2 moreover complainant has failed to state as to how the cause of action arose in its favour for filing the present complaint against the opposite party no. 2 in the absence of any deficiency on its parts as such the present complaint is liable to be dismissed on this score alone.
3. The complainant is guilty of ‘suggestio falsi’ and ‘suppression veri’ in as much as the complainant has deliberately concealed various material facts from this forum, so on this score alone the present complaint is liable to be dismissed.
4. The complainant has filed the present complaint purely out of the voracity to satisfy its ulterior motives on false and frivolous grounds before this forum just to cause harassment and the present complaint is one of the pressurizing tactics adopted by the complainant to force the opposite party to accede to its illegal demands.
5. The contents of Para – 1 to 2 under reply are admitted to the extent that the complainant had purchased a bike named Hero Electric Model Wave from the opposite party no. 1 for a sum of Rs. 35,940/-. And in reply it is asserted that the vehicle was given to the complainant in the proper working condition without any kind of the manufacturing defect and up to the satisfaction of the complainant rest of the contents are denied for want of knowledge.
6. The contents of the Para – 3 to 5 under reply are matter of record and hence need no reply.
7. The contents of the Para – 5 to 9 under reply do not relates to the opposite party no. 2 and hence needs no reply.
8. In reply to the contents of the Paras it is asserted that the bike purchased by the complainant is an electric operated bike and it does not require any fuel, but in order to get the good mileage the vehicle has to be charged for at least 6 – 8 hours and if the customer like the complainant it seems that he does not re – charge its vehicle properly then it could not give proper mileage and it also effect the battery life. Further it is clearly mentioned in the retail invoice that “Goods once sold will not be taken back”. It is specifically denied that the opposite party has received any notice as alleged by the complainant, further it is asserted that the opposite party no. 2 has always rendered its best and satisfactory service to its customers and in the present case it seems that the complainant was negligent qua handling his vehicle properly, because it is clearly mentioned in the booklet that “ any vehicle that has not been used in accordance with the operating instruction mentioned in the owner’s Manual of the product” then in that case vehicle cannot come under the warranty.
9. The contents of the Para under reply are wrong and denied. And in reply it is asserted that the complainant without any deficiency in service has filed the baseless and frivolous complaint against the opposite party no. 2 just to malign that the last Para prayer to this forum which is also wrong and denied.

Heard the learned counsel for the complainant.

From judicial record it appears that it is a very old case and parties have been successful in lingering the case for about 3 years. It further appears that opposite party no. 2 has appeared and filed written statement as well as affidavit dated 23.02.2015 which has not been replied by complainant. It further appears that registered notice was issued to opposite party no. 1 and when the opposite party no. 1 did not appear then vide order dated 08.05.2013 and 19.08.2013 forum has passed the order that notice was deemed to be served on opposite party no. 1 and hence this case will be heard ex – parte against opposite party no. 1 and as such We have heard this case ex – parte against opposite party no. 1.

We have perused the judicial record of the case.

It is the case of the complainant that he has purchased the aforesaid electric bike on 24.10.2011. It has been further asserted that soon after purchase the aforesaid bike developed some trouble as there was defect in convector and for the purpose of removing the defect the complainant deposited the aforesaid bike with opposite party no. 1 as will appear from Annexure – 4.

From perusal of Annexure – 4 which dated 01.06.2012 it appears that the aforesaid bike was received by employee of the opposite party no. 1 as the same could not be started. It is the complainant case that the defect could not be cured and vehicle is still in the possession of opposite party no. 1 since 01.06.2012 as will appear from Para – 9 of the complaint petition. The complainant has also asserted that all servicing coupons were kept by the opposite party no. 1 at the time of 1^st servicing on 25.11.2011. As the opposite party no. 1 has not chosen to appear hence there is no counter version of the aforesaid statement of the complainant and hence the allegation against opposite party no. 1 stands unrebutted. Opposite party no. 2 has filed a reply of the aforesaid complaint of the complainant and in Para – 2 of the aforesaid reply the Annexure- 1 of the complainant of the complaint petition has been admitted and as such it is admitted that the aforesaid bike was sold to complainant by opposite party no. 1 as will appear from Annexure – 1 of the complaint petition. From Annexure – 2 of the complaint petition it is crystal clear that the bike was under warranty period at the time of handing over the bike to opposite party no. 1 vide Annexure – 4 and 5 of the complaint petition. It has been asserted by opposite party no. 2 in its reply that in retail invoice it is clearly mentioned that “ Goods once sold will not be taken back ” and in the booklet it has been mentioned that “ any vehicle that has not been used in accordance with the operating instruction mentioned in the owner’s Manual of the product ”.

A supplementary affidavit has been filed on behalf of the opposite party no. 2 stating therein that opposite party no. 2 is ready to repair the vehicle of the complainant if vehicle is handed over to opposite party no. 2.

It is needless to say that opposite party no. 1 is master ( i.e., company ) and opposite party no. 2 is its agent, ( i.e., retailer ) both acts in consultation with each other till the opposite party no. 1 acts as a retailer of opposite party no. 2.

From careful perusal of entire fact and circumstances etc. of the parties it is crystal clear that the allegation of the complainant that after purchasing the bike began to starting trouble and he has deposited Rs. 500/- and handed over the aforesaid bike on 01.06.2012 to opposite party no. 1 has not been denied.

It is needless to say that this case was filed in this forum on 13.07.2012 but the opposite party no. 2 chosen to file affidavit on 23.02.2015 sating therein that opposite party no. 2 is ready to repair the vehicle if the same is handed over to the opposite party no. 2. It is surprising that when the complainant handed over the bike to opposite party no. 1 on 01.06.2012 Vide Annexure – 4 – 5 then how the same bike which is still in possession of opposite party no. 1 ( Vide Para – 9 of complaint petition ) then how the same bike will be handed over to opposite party no. 2. It was duty of opposite party no. 2 to take appropriate steps in time with regard to the repair of bike after entering in consultation with his agent i.e. opposite party no. 1 in whose possession the bike is still lying but the aforesaid offer of repairing bike has been given in 1915 on 23.02.2015 through affidavit. It appears that opposite party no. 1 and opposite party no. 2 both are adamant to harass the complainant on one pertex on another. We have taken note of the fact that the complaint is not happily drafted because in Para – 1 of the complaint it has been stated that the bike was purchased on 24.10.204 but from perusal of Annexure – 1 it is crystal clear that the bike was purchased on 24.10.2011. As stated above the geneunity of Annexure – 1 has already been admitted in Para 1 – 2 of written statement ( Reply ) of opposite party no. 2 and hence the aforesaid statement of the complaint petition appears to be mistake due to human error.

We have taken notice of fact that the bike had been purchased by Vide Annexure – 1 on 24.10.2011 and now we are in 2015, hence there have been long wait by the complainant and as such no purpose will be served in directing the opposite parties to return the aforesaid bike after repairing the same because the complainant has deliberately been harassed by opposite parties by not redressing his grievance at appropriate time even after taking Rs. 500/- from the complainant on pertex for repair. As stated above opposite party no. 1 has not chosen to appear and opposite party no. 2 has also not chosen to redress the grievance of the complainant after taking the matter with opposite party no. 1, hence we are not of view to direct opposite parties to get the vehicle repaired as the complainant suffered much agony and harassment due to conduct of opposite parties.

In view of the facts stated above, we hold that there is deficiency on the part of the opposite parties and due to deficiency the complainant had suffered much.

For discussion made above, we direct the opposite parties, jointly and severally, to return the price of the aforesaid vehicle i.e. 35, 940/- ( Rs. Thirty Five Thousand Nine Hundred Fourty only ) Vide Annexure – 1 with interest @ 10% per annum from 01.06.2012 the date on which the vehicle was handed over to opposite party no. 1 within a period of two months from the date of receipt of copy of or certified copy of this order failing which the interest rate will be 12% ( twelve ) per annum till final payment is made.

We further direct the aforesaid opposite parties to pay Rs. 5,000/- ( Rs. Five Thousand only ) to the complainant as composite charge for compensation and litigation within the aforesaid period of two months.

Accordingly, this case stands allowed to the extent indicated above.

                                        Member                                                                   President