SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/s 35 of Consumer Protection Act seeking to get an order directing opposite parties to replace the good quality new vehicle to the complainant or to pay the cost of the vehicle along with compensation and also the mental agony and financial loss occurred to the complainants to the tune of Rs.4,00,000/- and the cost of this case to the complainant.
Brief facts of the case are that the complainant purchased Mahindra Treo SFT Electric Auto rickshaw bearing Reg.No.KL/60/S 4038 from OPs branch office at Kanhangad by paying Rs.2,87,900/-. At the time of purchase of the vehicle, OP No.1 assured that if the battery is fully charged, the vehicle will get 130 kilometer. Whereas the initial period of purchase complainant got around 130 kilometer but soon after it reduced and now he is getting only around 50 kilometers even if the battery is fully charged. The user manual clearly says that a normal full charging takes approximately 3 hours and 50 minutes to get the promised kilometer which the complainant did from the beginning itself. Further due to the defective charger, complainant never able to run the vehicle as expected. Further alleged that many times charger given by the OP burst out during the process of charging of the vehicle. The complainant completely depends on this vehicle for his livelihood. Complainant further alleged that due to the defective of the charger, the vehicle covered only low mileage. Apart from the assured warranty period of 3 years and 80,000 kilometers there was an extended warranty given by the OP No.2, excluding extended warranty within the period 3 years itself the vehicle has undergone various defects out of which the defect of the charger is the serious one, which after bringing o into notice before OP they failed to rectify it. Due to the continuous service undergone by the vehicle this complainant have to keep this vehicle idle at hum which seriously affected his livelihood and also increased his financial in security. This clear deficiency of service and unfair trade practice on the part of OP No.1 and 2 by supplying defective vehicle to the complainant. The warranty given by OP No.2 is for a period of 3 years. During this warranty period itself OP No.1 failed to cure the defect of the charger and to put the vehicle back to the working condition. Hence the defective vehicle supplied by the OP No.1 and manufacture by OP No.2 both are liable to pay compensation to the complainant. Hence the complaint.
After receiving notices OPs 1 and 2 filed separate versions. Main contentions in the versions of both OPs are more or less same. It is submitted that it is submitted that this OP as a manufacturer sells motor vehicles to its dealers who are motor trade license holders from the State Motor Vehicle Department under the motor vehicles Act. The transaction between the OP and the dealer were on principal to principal basis and therefore there is no privity of contract between the complainant and the OP. There is no defect in the vehicle purchased by the complainant or any deficiency in service involved in the case. At the time of purchase of the vehicle, OP No.1 assured that if the battery is fully charged, the vehicle will get 130 kilometer. Soon after it reduced and now he is getting only around 50 kilometers even if the battery is fully charged, this answering OP is not aware of he said allegation. Further as per vehicle service history, complainant has never reported the concern of low mileage during any of his visit. Further submits that it is it is learnt from the other OP that complainant charger had failed as mentioned in service history the 1st failure reported on 21/06/2021 and 2nd failure reported on 18/11/2021 verbally, but physically vehicle reported and replaced the charger on 28/12/2021. That during failure reported on 21st June 2021, 1st OP workshop facility was only partly working due to covid containment zone restrictions. During the 2nd failure first OP arranged support for complainant to charge the vehicle. And the kilometer difference during the reporting of first and 2nd failure ie 3456 Kilometers and 11784 Kilometers clearly shows that the complainant has used the vehicle. The other allegations there in are incorrect and hence denied. Further the allegation in the compliant that complainant in limited period of time approached the first OP more than six time with the request to replace the defective charger , it is learnt from the first OP at the complainant had reported charger failure only 2 times which was addressed and supported by the first OP. The allegation that the vehicle has undergone various defects and they failed to rectify the defects is not correct. It is submitted that answering Op provided an amount of Rs.21,285/- as gesture support on 19/05/2022 as compensation for the period of non availability of charger. There was no deficiency in service from the part of this OP. Hence, prayed for the dismissal of the complainant.
Complainant has submitted chief affidavit and documents. Examined as Pw1 and marked the documents as Ext.A1 to A5. On the side of OPs, service manager of OP No.1 filed chief affidavit and was examined as Dw1. Marked Ext.B1 and B2. On the side of OP No.2, customer care manager filed his chief affidavit and was examined as Dw2. Owner’s manual was marked as Ext.B3. After that the learned counsels of complainant and OP No.2 filed their argument notes.
The undisputed facts are 1) Purchase of an electric Auto rickshaw having Reg. No. KL/60/S4038 by the complainant from OP No.1 manufactured by OP No.2 for an amount of Rs.2,87,900/- (2) (Within 6 months of its purchase ie 21/06/2021 complainant reported the charger of the vehicle failed and second failure reported on 18/11/2021 and the charger was replaced on 28/12/2021. (3) Within the warranty period ie 3 years The charger was replaced two times. 4) OP No.2 provided an amount of Rs.21,285/- to the complainant on 19/05/2022 towards compensation for the period of non-availability of charger.
Complainants allegations are that at the time of purchase of the vehicle, OP No.1 assured that if the battery is fully charged, the vehicle will get 130 kilometer. Whereas in the initial period of purchase, complainant got around 130 kilometer but soon after it reduced and now he is getting only around 50 kilometers even if the battery is fully charged. Further due to the defective charger, complainant never able to run the vehicle as expected. Further, alleged that many times charger given by the OP burst out during the process of charging of the vehicle. Complainant further alleged that due to the defective of the charger, the vehicle covered only low mileage.
OP No.1submitted that the complainant placed an order after conducting test drive of the vehicle and only after satisfying with performance, complainant selected the vehicle. Further OP No.1 submitted that as a dealer and service provider, the duty of OP No.1 is to sell the vehicle and provide service to the customers as per the agreement with the manufacturers. Any manufacturing defect or failure of performances, OP No.1 has no liability. On the other hand OP No.2 the manufacturing company of the vehicle submitted that OP No.2 is not directly involved in the booking process adopted by the dealer and the transaction between the OP No.2 and the dealer OP No.1 were on principal to principal basis and there is no privity of contract between the complainant and the OP. Further submitted that as per vehicle service history, complainant have never reported the complaint of low mileage during any of his visit. Further submitted that from OP No.1, they realized that complainant reported first failure of battery on 21/06/2021 and 2nd reporting was on 18/11/2021, verbally and the charger was replaced on 28/12/2021. It is also submitted that during these two periods the kilometer reading was 3456 Km and 11784 Km. According to OP, which clearly shows that complainant is using the bike.
1st contention of OP No.1 dealer is that the complainant purchased the vehicle after conducting test drive and with fully satisfaction of its performance. It is be noted that during cross-examination of Dw1, service Manager of OP No.1, the learned counsel of complainant put a question in page 4 of his deposition “വാഹനം ടെസ്റ്റ് ഡ്രൈവ് നടത്തിയാണ് പരാതിക്കാരൻ വണ്ടി വാങ്ങിയത് എന്നതിന് രേഖ ഉണ്ടോ? ഇല്ല.” More over complainant’s case itself is that at the time of purchasing of the vehicle from OP No.1, they offered that at 100% charge of the battery as approximately as 130 Km will get and at the initial stage complainant got around 130 KM, but subsequently it reduced and now getting only around 50 Km even if the battery is fully charged. Here, it is also to be noticed that complainant does not have complaint on the mechanical side of the vehicle. From the evidence it can be realized that he is raising complainant about the delivery of the vehicle with defective charger and due to that defect, the mileage of the vehicle became low. OP NO.1 admitted that the complainant has been regularly servicing the vehicle from OP No.1 Both OPs admitted that the complainant raised failure of battery within 6 months of its purchase and also admitted the replacing with new charger ie within the warranty period. Further submitted that OP2 as a manufacturer provided an amount of Rs.21,285/- as gesture support on 19/05/2022 as compensation for the period of non-availability of charger. This contention clearly support the allegation of the complainant that though OP had supplied charger a many times, he could not run the vehicle as expected. Further many times charges given by the OP burst out during the process of charging. This admission of OP goes to show that OP2 is supplying of only low quality charger to their customers, which itself is deficiency in service and unfair trade practice on the part of OP No.2 as the manufacturer of the vehicle. OP No.2 contended that charger is a third party product and its vendor name is Exicom. Here OP No.2 cannot wash off their hand by taking such a contention. The poor customers purchased the vehicle for their livelihood, by believing the offers and advertisement given by the manufacturers and dealers. The charger supplied by the manufacturer along with new vehicle cannot be considered as a third party product and the manufacturer have no responsibility of its quality and performance. Here OP No.1 also raised a contention that as a dealer and service provider the duty of the OP1 is to sell the vehicle demanded and provide service to customers and as per the agreement with the manufacture’s. Further if at all any issues arise due to manufacturing defects or failure in performance, OP No.1 cannot be blamed. Here it is an admitted fact at the OP No.1 is the authorized dealer of the manufacturer company (OP2) and not an agent. So responsibility is vested on the dealer also. As stated above the dealer cannot wash off his hand after selling a defective product to its customers. The customers are directly approaching the dealers for purchasing the vehicle. Here Ext.A1 to A4 receipts clearly shows that OP No.1 has received the price of vehicle from the customers. So the privity of contract is between the complainant and OP No.1. It is their responsibility, if customers raised any issue regarding the product sold by them, to inform to the manufacturer and to resolve it. So in the instant case, there is clear deficiency in service and unfair trade practice on the part of OP No.1 also.
The learned counsel of OP No .1 submitted owner’s manual of the vehicle, in which it is stated that the driving range of the vehicle depends on the state of charge, weather, temperature, usage, driving style, Geographical to poqrshy and the age of battery power pack.
Though the above said statements are correct, the recurring damage of the charger supplied by OPs 1 and 2 itself clears that they supplied low quality or 2nd hand charger to the customers. The said action will affect the use of vehicle by the customers who purchased it for their lively hood and it amounts unfair trade practice on the part of OPs.
On considering the entire facts and circumstances we are of the view that both OPs ( OPs 1 and 2)are responsible and the complainant is liable to get relief from them.
In the result complaint is allowed in part. Since some other complaints also pending before this commission in the similar manner, we are not inclined to direct opposite parties to replace the good quality new vehicle to the complainant. Hence opposite parties 1 and 2 are directed to pay the cost of the vehicle Rs.2,87,900/- to the complainant after taking back the vehicle in dispute. Opposite parties 1 and 2 are also directed to pay Rs.1,00,000/- towards compensation for the mental and financial agony happened to the complainant. Further Rs.10,000/- towards litigation expense. Opposite parties 1 and 2 shall comply the order within one month from the date of receipt of the certified copy of this order. Failing which Rs.2,87,900+Rs.1,00,000 will carry interest @ 9% per annum from the date of order till realization. Complainant on execute the order as per provisions in Consumer Protection Act 2019.
Exts.
A1-Vehicle order
A2 to A4 - Receipts issued by OP1
A5- Deva Meter service
B1-Owners manual
B2-Vehicle history 8 pages
B3- Owner’s manual
Pw1- Jayan K V- Complainant
Dw1- Rajan C-OP1
Dw2-Witness of OP2
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forwarded by order/
Assistant Registrar
