Kerala

Kottayam

CC/71/2023

G Rajesh - Complainant(s)

Versus

Bharat Motors - Opp.Party(s)

30 Apr 2024

ORDER

Consumer Disputes Redressal Forum, Kottayam
Kottayam
 
Complaint Case No. CC/71/2023
( Date of Filing : 10 Mar 2023 )
 
1. G Rajesh
Gopalakrishna Bldg No.1, Muttambalam P O Kottayam. 686004
Kottayam
Kerala
...........Complainant(s)
Versus
1. Bharat Motors
Kodiyattumadam Thazhe vettippuram Mailappara P O Pathanamthitta. Represented by its Manager.
Kerala
2. Mahindra Electric Mobility Ltd
Bommasandra Industrial Ares, 4th phase, Jigani Link Road, Bangalore Represented by its Managing Director.
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. V.S. Manulal PRESIDENT
 HON'BLE MRS. Bindhu R MEMBER
 HON'BLE MR. K.M.Anto MEMBER
 
PRESENT:
 
Dated : 30 Apr 2024
Final Order / Judgement

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated, the 30th day of April, 2024

 

Present:  Sri. Manulal V.S. President

           Sri. K.M. Anto, Member

 

C C No. 71/2023  (Filed on 10/03/2023)

 

                                                            Complainant                    :    G. Rajesh S/o Gopalakrishnan Nair,

                                                                                                         Gopalakrishna Building No.1,

                                                                                                         Muttambalam P.O,

                                                                                                        Kottayam – 686 004.

                                                                                                       (By Adv: Jobin Mathew)

                                                                                              Vs.     

          

                                                 Opposite parties                       :  (1) M/s. Bharath Motors,

                                                                                                          Kodiyattumadam,

                                                                                                         Thazhevettipuram,

                                                                                                          Mailapara P.O,                                                           

                                                                                                           Pathanamthitta  - 689 671,

                                                                                                          Rep. by its Manager.     

                                                                                                           (By Advs: Sony Sebastian &

                                                                                                                              Eldho Jacob Philip                                                                                                                            (2) Mahindra Electric Mobility Limited,

                                                                                                          # 66-69, 72-76,

                                                                                                          Bommasandra Industrial Area,

                                                                                                         4th Phase, Jigani Link Road,

                                                                                                          Bangalore,

                                                                                                         Rep. by its Managing Director.

                                                                                                         (By Advs: George Itty.T,

                                                                                                                         Saji Mathew & Alfi Anwar)

O R D E R

Sri. Manulal V.S. President

The complaint is filed under section 35 of the Consumer Protection Act 2019.

Complainant is the owner of Electric Auto Trio SFT bearing  Registration No. KL-05-AY-6853, manufactured by the 2nd opposite party.  The said vehicle was purchased on 07/06/2022 for a total amount of Rs.2,91,900/- from the 1st opposite party who is the dealer of 2nd opposite party for the purpose of transportation of the grand children of the complainant from home to school and back and for other household purposes. The 1st opposite party had made the complainant believe that the electric auto manufactured by the 2nd opposite party is of such a quality and class from the identical vehicles of similar manufactures and the above vehicle under standard test conditions would get approximately 130 kilometers from a new battery at 100% charge and in any circumstances it will run between 95 to 115 kilometers. After using the said vehicle, it was proved that the auto will not run for more than 65 kilometers, in any circumstances after full charge which is much below than what is offered, assured and guaranteed by the opposite parties. The auto is having inherent manufacturing defects and the vehicle could not be repaired. Even after repeated complaints regarding the mileage the same was not cured by the opposite parties and no probable and reasonable explanation was offered for the lesser mileage than which is assured. The service of the auto was done as per the directions of the opposite parties in a timely manner.  The second opposite party in its brochure and service book also gives such an assurance on the performance of the battery at full charge. False representations and unlawful trade practices were adopted by the opposite parties in selling the auto though it was not having any such performance, quality or standard. The battery charger of the auto was replaced on 23/06/2022 and 10/10/2022 due to complaint. The 1st opposite party though directed to bring the vehicle to Pathanamthitta, it is not possible since the vehicle could not be driven such distance even on full charge and though the complainant stated his inability to them and requested to take the vehicle by themselves, they have not cared to take the vehicle from the complainant’s house for curing the defect. The 1st and 2nd opposite parties had advertised that the vehicle would generate such huge profit based on the mileage after full recharge and it is proved to be false and is unfair trade practice adopted by the opposite parties. Further selling the auto on the assurance of rendering proper service is also not complied and amounts to  deficiency in service from the part of the opposite parties. The complainant has also suffered much mental agony due to the unfair trade practice and deficiency in service adopted by the opposite parties. The complainant is entitled to get compensation for the same. Hence this complaint is filed by the complainant praying for an order allowing to direct the opposite parties to replace the vehicle with a vehicle of similar description which is free from any defect or to return the complainant the price of the auto together with 12% interest, registration charges and road tax and to pay Rs.50,000/- towards the mental agony sustained to the complainant due to unfair trade practice and deficiency in service adopted by the opposite parties along with Rs. 10,000/- towards cost of the complaint.

Upon notice from this Commission opposite parties appeared before the Commission and filed separate versions.

1st  opposite party filed version contending as follows:

The  complainant has purchased the vehicle and registered the same as a taxi availing subsidy, while he is using the same for commercial purpose, engaging driver, in connection with his wholesale business in metal and sheets. Hence the complainant would not come under the purview of a consumer under the Consumer Protection Act, 2019. The  complainant had purchased electric Auto Trio SFT, manufactured by the 2nd opposite party, from the 1st opposite party. The vehicle was brought to the 1st opposite party for service on 3 occasions and it can be seen that 2 visits were with allegation of complaint with regard to the battery charger of the vehicle and the other visit was for the routine first service. On both the occasions the complainant had complained about the battery charger, they were duly looked into and the battery charger were replaced under warranty. On none of these 3 occasions the complainant did not allege about the performance of  the vehicle. The 1st opposite party had not made any false promise as alleged by the complainant and the complainant had purchased the vehicle on his own volition. The allegation that the vehicle of the complainant did not run more than 65 Kms on full charge is misleading. It is submitted that the driving range of the vehicle would depend on factors like road condition and traffic, driving habit, vehicle speed, vehicle pay load and tyre pressure, electrical load from accessories etc., as stated by the 2nd opposite party manufacturer in the owner’s Manual. It would also reduce considerably, while used in peak hour traffic and in traffic blocks. The allegation that the vehicle is having inherent manufacturing defect, that the vehicle could not be repaired even after repeated complaints and that no probable and reasonable explanation was offered for the lesser mileage etc. are all false. The complainant’s vehicle was never brought to the 1st opposite party complaining of lesser mileage as alleged. At the time of taking delivery of the vehicle, the complainant was duly advised on properly charging the battery for the vehicle every alternate night, irrespective of whether full charge was being shown. The allegation that after purchase, the complainant regularly raised complaints with the 1st opposite party with regard to lesser mileage directly, through e-mails and even by registered notice is false and misleading. The only complaint raised by the complainant before 1st opposite party was on 30-01-2023. On the other hand, the last attention of the vehicle at the 1st opposite party was on 24-10-2022 when the complaint of battery charger was raised and the same was replaced under warranty. The 1st opposite party never directed the complainant to take the vehicle to Pathanamthitta nor has the complainant reported any defect or made a complaint to this opposite party regarding lesser mileage as alleged. There has not been any false representation or any unfair trade practice of deficiency in service on the part of the 1ª opposite party.  1st opposite party has always rendered prompt and efficient service to the complainant whenever the vehicle was brought to this opposite party. It is submitted in the version that even now if the complainant brings the vehicle to the 1st opposite party, prompt and efficient service would be meted out to his vehicle. The complainant is not entitled to replace his vehicle with a new one or for the refund of any amount as alleged. The complainant has not suffered any mental agony as claimed and there has not been any deficiency in service or unfair trade practice on the part of the 1st opposite party.

Version of the 2nd opposite party is as follows:

It is submitted that the 2nd opposite party the Mahindra Electric Mobility Ltd. was merged with Mahindra and Mahindra Ltd. under orders of the National Company Law Tribunal and hence the written version in the case is filed by Mahindra & Mahindra Ltd.  It is submitted Mahindra Electric Mobility Ltd. on receipt of consideration from the dealers, as a manufacturer sold motor vehicles to its dealers. The 2nd opposite party is not directly involved in the booking process adopted by the dealers or sale to end customer. The dealers are not agents of Mahindra Electric Mobility Ltd. The 2nd opposite party is not having any transactions with the complainant and therefore there is no privity of contract between the complainant and the 2nd opposite party. The complainant cannot be termed as a ‘Consumer’ as defined under Section 2(7) of the Consumer Protection Act 2019. It is admitted that the complainant had purchased an Electric Auto TREO SFT bearing Registration No. KL-05AY-6853 from the 1st opposite party manufactured by the 2nd opposite party. The estimated drive range at 100% charge from a new battery power pack is approximately 130 kms (Treo) & 85Kms (Treo Yaari) at 25°C of battery power pack temperature in ‘E’ mode without any accessory usage under standard test condition. The actual drive range can vary as the battery power pack ages, and depending on the usage pattern and driving style. Most users experience a drive range between 95 to 115 Kilometers (Treo) and between 65 to 75 kilometers (Treo Yaari) under variable driving conditions. It is submitted that there was no manufacturing defect in the vehicle at any point of time. The allegation of inherent manufacturing defect and vehicle could not be repaired, is also denied. As per vehicle history reported, last reporting of the vehicle to workshop is on 24-10-2022 at 2691 Kms., within this Kms. vehicle has never reported for mileage or battery concern. It is learnt that the current kilometres covered by the vehicle is 7031 kms and the next service is at 10,000 Kms. There is no false representations and unlawful trade practices as alleged. The battery performance can also be affected due to user, if the maintenance point specified in point No. 2.9 of Owner’s Manual, battery life and performance are not adhered. There is no reporting of vehicle to workshop for any battery concern till date. Charger was failed at 2691 Kms and which was replaced under warranty. There is no negligence of service or unlawful trade practice or deficiency on the part of the 2nd opposite party. The complainant is not entitled to get replacement of the vehicle or refund of the price of the vehicle as claimed or any of the reliefs prayed. The manufacturer has no obligation other than what is stated in the warranty policy. Mahindra TREO & TREO yaari vehicles are having a standard warranty and the warranty policy is given in the Owner’s Manual. The terms and conditions of warranty and warranty coverage is specifically mentioned in the Owner’s Manual. The complainant is not entitled to make any claim against the terms and conditions of warranty as specified in the Owner’s Manual. The 2nd opposite party is not liable to give any compensation to the complainant as claimed.

Complainant filed proof affidavit in lieu of chief examination and marked Exhibits A1 to A3.  Vinu Chariya who is the Manager of the 1st opposite party filed proof affidavit and marked Exhibit B1. Vineet. P, who is the authorised person of the 2nd opposite party filed  proof  affidavit and marked Exhibit B2 from the side of the 2nd opposite party. Expert Commissioner’s report is marked as Exhibit C1.

On evaluation of complaint, version and evidence on record we would like to consider the following points :

(1) Whether the complaint is maintainable or not?

(2) Whether the complainant had succeeded to prove any deficiency in service or unfair trade practice on the part of the opposite parties?

(3) If so, what are the reliefs and cost?

For the sake of convenience we would like to consider Point Nos.1 to 3  together.

POINTS  1, 2 & 3  :-

There is no dispute on the fact that the complainant had purchased an electric auto TREO SFT manufactured by the 2nd opposite party from the 1st opposite party.    It  is  proved  by  Exhibit A1 that   the  complainant  had  paid Rs.2,91,900/- to the 1st opposite party towards the price of the autorikshaw. The complaint was resisted by the opposite party stating that the complainant has purchased the vehicle and registered the same as a taxi and he is using the vehicle for commercial purpose engaging a driver in connection with his wholesale business of metal and sheets. However the opposite party did not adduce any evidence to prove that the complainant has purchased the auto for commercial purpose. The opposite parties did not adduce any evidence to prove that the complainant was availing profit from the commercial use of the vehicle. Therefore the first point is answered in favour of the complainant and we are of the opinion that the complainant is a consumer of the opposite parties as envisaged in Section 2(7) of the Consumer Protection Act 2019.

The specific case of the complainant is that though the opposite parties assured that the vehicle would get 130 kilometres from a new battery at 100 percentage charge, the auto will not run for more than 65 kilometres in any circumstances after full charge. According to the complainant the autorikshaw is having manufacturing defects and could not be repaired. It is contended by the opposite parties that the vehicle is not having any inherent manufacturing defect. According to the opposite parties the vehicle was brought to the 1st opposite party who is the dealer of the 2nd opposite  party for service only on three occasions. Out of these 3 visits one is for the regular first service and other two visits were with an allegation of complaint with  the battery charger. Exhibit B1 is the vehicle history of the complainant. On going through Exhibit B1 we can see that at a mileage of 2691 the charger of the vehicle was replaced under warranty and the same was replaced at a mileage of 3300 and the complainant paid for the same. The 2nd opposite party in version as well as in proof affidavit admitted that the estimated drive range at 100% charge from a new battery power pack is approximately 130 kms (Treo) & 85Kms (Treo Yaari) at 25°C of battery power pack. Therefore it is proved that the opposite party offered mileage of 130 Kms. to the vehicle of the complainant  at 100 % charge from a new battery power pack. In order to prove this case the complainant applied for the appointment of an Expert Commissioner to inspect the battery of the vehicle. Accordingly this Commission appointed Roshan Samuel who is a Motor Vehicle Inspector to inspect the vehicle of the complainant. The report of the Expert Commissioner is marked as Exhibit C1. In Exhibit C1 the Expert Commissioner reported that in his examination a mileage of 65 kilometres was got on charging. It is further reported by the Expert Commissioner that the representatives of the opposite parties on discussion informed that mileage issue is due to complaints in the battery cells and they agreed to replace the battery cells. Clause No 7.8 of the Owner’s Manual  states about the warranty of battery pack. On going through the Battery pack warranty, we can see that the 2nd opposite party offered a warranty for the battery for 3 years or 40,000 kilometres  for Treo Yaari and 3 years or 80,000 kilometres for Treo whichever is earlier from the date of  sale of vehicle. On going through the exclusion clause of the warranty conditions it is stated that if the vehicle is stored in a temperature below -25 Celsius or +45 degree Celsius for over seven days the warranty is not applicable. Depending on the weather in Kerala, it is not believable that a vehicle can be kept at -25 degrees Celsius or at 45 degrees Celsius for seven days. It is further stated that if the correct charging procedure is not followed the warranty will not be applicable. However it is evident from the service history of the vehicle that the charger of the battery was replaced twice due to the defect. It is further evident from the service history that there was no endorsement in the service history about the improper charging and not following the proper maintenance points specified in Clause No.2.9 of owner’s manual. If the defect was with the battery charger then the vehicle should have got the mileage offered by the 2nd opposite party after replacing the charger. Section 2(47) of Consumer Protection Act, 2019 defines unfair trade practice as a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:- (i)making any statement, whether orally or in writing or  by visible representation including by means of electronic record, which- (a)falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model.

 Herein case on hand it is evident from the Exhibit C1 report that the vehicle got only 65 kilometres of mileage whereas the 2nd opposite party vide Exhibit A2 offered a mileage between 95 to 115 kilometres. Any imperfection or shortcoming in the quality and standard which is required to be maintained under any contract expressly or impliedly as claimed by the trader in any manner amounts to defects in the product. We are of the opinion that a product is required to meet the common expectations of a consumer, therefore, manufacturers and the sellers are under the responsibility to ensure the quality of the product. When a brand new vehicle is purchased, the minimum expectation of the consumer is that for a few years or at least for one year there shall be no problem. After paying such high consideration if he is compelled to take the brand new vehicle, every second month to the workshop, it is a waste of his money, patience and besides he also suffers mental agony and harassment of emotional nature. Thus we are of the opinion that the opposite parties committed deficiency in service and unfair trade practice by selling a motor vehicle which is having a battery without the standard quality as claimed by them and also committed deficiency in service by not replacing the defective battery of the vehicle. No doubt due to the deceptive practice of the opposite parties the complainant has suffered much mental agony and hardships for which the opposite parties are liable to compensate.

Considering the nature and circumstance of the case we allow the complaint partly  and pass the following order:

We hereby direct the opposite parties to replace the battery of the electric auto Treo SFT bearing Registration Number KL05-AY-6083 with a defect free one having the standard and specification as offered by the opposite parties within 30 days from the date of receipt of  copy of this order.

We hereby direct the opposite parties to pay Rs.10,000/- (Rupees Ten Thousand only)  as compensation to the complainant for the deficiency in service and unfair trade practice on the part of the opposite parties.

The opposite parties are jointly and severely liable to comply the order within 30 days from the date of receipt of copy of this order, failing which the compensation amount shall carry interest@ 9% per annum from the date of this order till realization.

        Pronounced in the Open Commission on this the 30th day of April, 2024

       Sri. Manulal V.S. President    Sd/-

       Sri. K.M. Anto, Member        Sd/-

APPENDIX :

Exhibits from the side of the Complainant :

A1   -   Copy of Bill dated 07/06/2022 for Rs.2,91,900/-

            issued by the 1st opposite party

A2   -   Copy of  Owner’s Manual of the vehicle

A3   -   Copy of complainant’s complaint dated 30/01/2023

            addressed to the 1st opposite party

Commission Report :

C1  -   Commission Report prepared by Roshan Samuel,

           MVI, RTO, Kottayam

Exhibits from the side of Opposite parties :

B1   -   Copy of  Vehicle History of complainant’s vehicle

B2   -   Copy of Owner’s Manual

        By Order,

              Sd/-

Assistant Registrar          

 
 
[HON'BLE MR. V.S. Manulal]
PRESIDENT
 
 
[HON'BLE MRS. Bindhu R]
MEMBER
 
 
[HON'BLE MR. K.M.Anto]
MEMBER
 

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