SMT. RAVI SUSHA: PRESIDENT
This complaint has been filed U/s 35 of Consumer Protection Act 2019 seeking to get an order directing opposite party to replace the vehicle in dispute with a good quality new vehicle or to pay the cost of the vehicle along with compensation.
The brief facts of the case are as follows:-
On 30/09/2019 the complainant purchased Mahindra Treo SFT electric Auto Rickshaw bearing reg. No. KL59U9604 from the OP No.1 at the cost of Rs.2,60,383/-. At the time of purchase OP No.1 informed this complainant that he will get 130 Km, if the battery is fully charged, and it is also emphasized clearly in the manual book as the estimated drive range at 100% charge of the new battery as approximately as 130 KM, if the battery is fully charged, and it is also emphasized clearly in the manual book as the estimated drive range at 100% charge of the new battery as approximately as 130 Kms. This complainant at the initial period of purchase got around 130 Km as promised by the OPs soon after it reduced and now this complainant is getting only around 50 Km even if the battery is fully charged. The user manual clearly says that a normal full charging takes approximately 3 hours and 50 minute to get he promised kilometer which the complainant did from the beginning itself. The charger supplied by the OPs along with the vehicle turned out to be an effective on and so the inflow of charge to the battery failed even after charging the device for the required period. In consequence the battery failed to store the required charge needed for the smooth running of the vehicle. Due to the defective charger served by the OP complainant ever able to run the vehicle as expected. The considerable rate of decrease of the charge from the battery makes the vehicle stop unexpectedly in the course of running. The complainant installed 16 A 230 AC plug point to charge the battery as said by the OP,, due to the defective charger supplied complainant never got expected and guaranteed battery life. This complainant further informed the OP No.1 about the defective charger supplied by them and inconvenience and suffering under gone by him due to this. The defective charger supplied along with the Tre SFT by OP No.1 have put the complainant to irreparable loss and mental agony. This complaint completely depends on this vehicle for his lively hood. Within limited period the complainant approached more than 6 time s before the OP NO.1 with the request to replace the defective charger. Many a times the charger burst out which the complainant brought in to the notice of the OPP No.1 and asked the OP NO.1 to address them after before OP No.2, who is the manufacturer of the concerned vehicle Apart from the assured warranty period of 3 years and 80000/- Kms there was an extended warranty give by the OP No.2, excluding extended warranty with in the period of 3 years itself the vehicle has undergone various defects out of which the defect of the charger is the serious one, which after bringing into notice before the OP they failed to rectify it. There is clear deficiency of service and unfair trade practice on the part of OP No.1 by supplying defective vehicle to the complainant. The warranty given by the OP No.2 is for a period of 3 years. During this period the complainant can avail the service if they needed by t OP NO.1 never responded to this need as an emergency. Apart from this the OP No.1 has no proper and experienced hands to rectify the defects. This complainant has to many times attempt to approach OP NO.1 to replace the defective charger which they ignored considerably. Even after paying the entire amount the compliant could not able to utilize the vehicle in its full strength. The defective vehicle supplied by the OP No.1 and manufactured by OP No.2 are liable to pay compensation to the complainant. The complainant has sent legal notice to the OP No.1 and 2 for replacing good quality new vehicle or to pay compensation. Whereas OP No.1 and 2 has not sent any reply. Hence this complaint.
After service of notice, OPs appeared through their counsels and filed their version admitting about the purchase of Auto rickshaw from OP No.1. OP No.1 submitted that this OP is only a dealer cum service person f Mahindra Treo SFT electric Auto rickshaw manufactured and supplied by the 2nd OP. Further the fact that this OP is in no way responsible or answerable to the defect in manufacturing of the vehicle and it accessories. The fact that the complainant has purchased the vehicle described n the above case form this Op as the dealer of the said vehicle manufactured and supplied by the 2nd OP and the periodical services of the said vehicle had been undertaken by this OP for free of cost in terms of the warranty available to the said vehicle are true and hence admitted. Any manufacturing defect or any defect pertaining to the performance of the said vehicle does not impose any obligation or liability upon this OP. Whenever the complainant approached this OP complaining any defect inurning condition of the vehicle, such all such complainant were timely attended by this Op as evidence by the vehicle service history documents and the complainant was well satisfied on each occasions. The allegation that this OP had supplied poor quality of charger machine to the complainant is totally false and baseless. Being a dealer, this OP sells vehicles to the customers in the same condition that were supplied by the OP No.2. The service center is always ready to attend any complaint and to solve the technical issues even by replacing any parts whenever it requires by reporting the same to the manufacturer free of cost within the permissible warranty period of three years granted by the manufacturer. When the complainant caused a legal notice upon this OP, that has been replied promptly. It is respectfully submitted that the complainant is not entitled to get any relief from this OP. Being a dealer of the vehicle, this OP can’t be held liable for any manufacturing defect and hence prayed to dismiss the complaint against OP No.1
OP No.2 in their version contended that Mahindra Electric Mobility Ltd. on receipt of consideration from the dealers, as a manufacturer sells Motor Vehicles to its dealers who are Motor Trade License holder’s from the State Motor vehicles Department under the Motor Vehicles Act. This answering OP is not directly involved in the booking process adopted by the dealers or sale to end customer. The transactions between the answering OP and the dealers are on principal to principal basis. The dealers are not agents of Mahindra Electric Mobility Ltd. This answering OP is not having any transactions with the complainant and therefore there is no privity of contract between he complainant and this OP. It is true that the complainant purchased Mahindra Treo SFT Electric auto rickshaw. The allegation that the complainant is getting only a mileage of 50 Kms even if the battery is fully charged is not correct and hence denied. It is submitted that here is no deficiency of service or unfair trade practice on the part of OP No.1 as alleged. It is submitted that the charger was replaced whenever required, free of cost. It is submitted that the OP compensated the complainant for the charger complaint occurred. The complainant wads paid for each day the charger was under repair/service or the charger was with the dealer. It is submitted that the complainant had received Rs.57,915/- from the OPs claiming charger complaint. The manufacturer protected the complainant to the maximum extent. The complainant modified the vehicle as per his requirement. Enough modification was done dealer or OP No.2 have not restricted the vehicle for warranty claims or support.
There is no defect in the vehicle supplied by the OP No.1 manufactured by OP No.2. This OPs are not liable to pay any compensation to the complainant. The warranty conditions are applicable to both the complainant as well as the manufacturer. The complainant is not entitled for direction to the OP to replace with a good quality new vehicle or to pay the cost of the vehicle along with the compensation also the mental agony financial loss occurred to the complainant. Hence, prayed for the dismissal of the complaint.
While this complaint is pending complainant has taken steps to appoint an expert commissioner to inspect the Auto rickshaw and produce a detailed report. After giving due notices to the parties the expert commissioner filed his report. 1st OP filed objection to the expert report.
Complainant filed his chief-affidavit and documents. Examined as Pw1 and marked Ext.A1 to A6 and the expert report as Ext.C1. Complainant was cross-examined by OPs 1 and 2 and marked Ext.B1 to B3 through complainant. Service Manager of OP No.1 Mr. Prajeesh P V filed his proof affidavit. Examined as Dw1 cross-examined by OP No.2 and complainant. From the side of OP No.2, Mr. P Sajeesh, customer care Manager of OPNo.2 filed his proof affidavit and examine as Dw2. Cross-examined by complainant. After that learned counsels of complainant, OPs 1 and 2 filed their written argument notes.
The points that arise for considerations are:
- Whether the vehicle purchased by the complainant from OP No.1 is having any inherent manufacturing defect or any other defects as alleged by the complainant?
- Whether there is deficiency of service or unfair trade practice on the part OPs1 in effecting sale of the vehicle of 2nd OP to the complainant?
- Whether both OPs are held liable
- Relief and cost?
Point 1 to 3
Complainant is alleging deficiency in service and unfair trade practice on the part of the OPs 1 and 2 in effecting sale of a vehicle having manufacturing defects or other defects in the vehicle which was purchased by the complainant from the 1st OP, authorized dealer and 2nd OP manufacturer. It is the case of the complainant that the vehicle in dispute was purchased by the complainant for using it for his livelihood. Complainant was examined as Pw1 and marked Exts.A1 to A6. Documents were also marked through Pw1. According to complainant even after paying the entire amount, the complainant could not able to utilize vehicle in its full strength. According to complainant the defective charger supplied along with the vehicle by OP No.1 have put him to irreparable loss and mental agony. Due to defective charger the complainant could not run the vehicle as expected. The considerable rate of decrease of the charge from the battery makes the vehicle stop unexpectedly in the course of running. At the initial period of purchase got around 130 KM as promised by the OPs soon after it reduced and now only around 50KM even the battery is fully charged.
As per Ext.C1 expert report the commissioner Mr.Haris E P, Assistant Motor Vehicles Inspector inspected the vehicle on 14/03/2023 at the inspection ground of SRTO Payyannur in the presence of complainant. It is submitted by the commissioner that OPs were not present even though they were repeatedly informed about the inspection. In the report, the expert has reported that 1) The odometer reading at the time of inspection is 41831 Kms., 2)It is found that the vehicle is road worthy 3) A road test was conducted so as to find out the range of the vehicle after the battery is fully charged and it s revealed that the vehicle gets an average of only 60Kms before the battery pack drain out.4) Also jerking noticed from the rear with two passengers occupying the passenger cabin (on partial load) when driven on rough roads. In the light of the above facts it is revealed that the problem of low mileage raised by the complainant is due to the underperformance of battery pack fitted in the vehicle.
It is opinion by the Expert Commissioner that the vehicle is road worthy and the odometer reading at the time of Inspection is 41831 KMs. It is further reported in C1 report that the expert commissioner could not notice any major mechanical defects at the time of inspection of the vehicle. It is reported that the vehicle get an average of only 60KM before the battery pack drain out. Final conclusion of the expert is that the problem of low mileage is due to the underperformance of battery pack fitted in the vehicle. Thus, Ext.C1 report would give an indication that OP No.1 dealer and the 2nd OP manufacturer of the Mahindra Electric Mobility Ltd. effected sale of a defective vehicle to the complainant. A perusal of the written objections filed by OPs, that under performance of battery pack, as noted by the expert, not stated that it was due to the improper maintenance of the system. Though OP No.1 filed objection to C1 commission report, there is nothing available on record to show the improper maintenance from the side of complainant. On the other hand the expert noted that the vehicle got regularly serviced at AMG Commercial Vehicles, Thottada, Kannur since 04/12/2019 till date. It is also to be noted that OPs have not taken any steps to examine the expert commissioner who submitted Ext.C1 report. A perusal of the written objection filed by OP No.1 would also make it clear that there is no serious allegations about C1 report. So, this commission have no hesitation to rely to Ext.C1 expert report submitted by expert commissioner Mr. Haris E P, Assistant Motor Vehicles Inspector.
The expert commissioner has categorically reported about the underperformance of battery pack fitted in the vehicle. The complainant purchased the vehicle on 30/09/2019 at the cost of Rs.2,60,383/-. OPs admitted that the charger of the vehicle was replaced whenever required, free of cost. Further submitted that the OP compensated the complainant for the charger compliant occurred. Further submitted the complainant was paid for each day the charger was under repair service or the charger was with the dealer. Thus complainant had received Rs.57,915/- from the OPs. OPs alleged that the complainant modified the vehicle as per his requirement. It is submitted that the complainant made modifications in leaf spring and addition of coil spring, seat of them are also modified. OPs submitted Ext.B1 series to establish their contention. OPs argued that the mileage discrepancy is due to the additional fittings, road conditions, driving habits, load conditions etc.
It is to be noted that OPs could have reported those facts to the expert commissioner at the inspection time. Here the expert has not observed that the mileage discrepancy was due to the above said fact. Ext.B3 shows the complainant has received Rs.57,915/- from AMG commercial vehicle, Mahindra towards compensation. OPs also contended that OPs had replaced the parts of the vehicle on different times free of cost and on this account they had spent Rs.1,85,315/-. To establish the said contention Ext.B3 vehicle history was submitted. On perusal of Ext.B3, it is revealed that on 23/12/2019 itself, the vehicle was repaired for running complaint etc. shows that repair done for the vehicle on different dates and also the charges collected by the OP No.1. Complainant alleged that OPs have replaced the charger with substandard China made charger.
The expert commissioner has also reported about the present condition of the subject vehicle and also noted that the odometer reading is 41831 KMs.
It is evident that the vehicle is at AMG Kanjangad service center for repair work.
O perusal of the entire facts, circumstances and evidence on records, it can be concluded that there was deficiency in service on the part of the 1st OP authorized dealer and the second OP manufacturer of the vehicle by effecting sale of a defective vehicle with substandard battery.
Here the main contention of OP No.1 is that he is only a dealer and the defects if any to the vehicle and battery, OP No.2 manufacturer alone is responsible.
As Ext.A1 to A3 clearly shows that OP 1 is a dealer and received the amount from the complainant towards the sale consideration of the vehicle, he cannot escape from joint liability because he being a dealer purchased the vehicle from OP No.2 manufacturer in turn sold to the complainant and undertaken to provide free service and rectify the defects during warranty. So we are of the opinion that OP No.2 manufacturer alone is not responsible.
In the result the complaint is allowed. The opposite parties 1 and 2 are directed to carry out the necessary repairs to the vehicle, which is in the possession and custody of the representative of OP NO.2 and to make the vehicle in a defect free. Further replaced the battery of the vehicle with a standard model and handed over the same to the complainant without levying any fee towards the repair charges or spare parts and battery cost. The Ops are made jointly and severally liable to comply the order. Further directed to pay compensation towards Rs.25,000/- with cost Rs.5000/-. OPs 1 and 2 shall comply the order within one month from the date of receipt of the copy of this order, failing which compensation amount will carry interest @ 9% per annum and also shall pay the value of the auto rickshaw Rs.2,60,383/- to the complainant with interest 4% per annum. The interest will carry from the date of order till realization. Complainant can execute the order as per provision in Consumer Protection Act 2019.
Exts.
A1- Vehicle order issued by OP1
A2- Performa invoice issued by OP1
A3-Tax invoice
A4- Lawyer notice
A5-Postal receipt
A6-Acknowledgement card
C1-Expert report
B1(series)- Photographs
B2-Vehicle history
B3-Copy of mail
B4- Owners manual
Pw1- T K Abdul Khader- Complainant
Dw1- Prajeesh P V- Witness of OP1
Dw2- P Sajeesh-Witness of OP2
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
/Forward by order/
Assistant Registrar
