BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
C.C. No. 61/2010 Filed on 24.02.2010
Dated : 30.09.2011
Complainant :
K. Damodaran, Laila Bhavan, Valiyakattakkal, Venjaramoodu, Thiruvananthapuram.
(Appeared in person)
Opposite parties :
Hero Electric Company, Hero Nagar, G.T. Road, Ludhiyana, Punjab.
(By adv. P. Sajeev Kumar)
Marikar Motors Pvt. Ltd., Statue, Thiruvananthapuram.
(By adv. G.S. Kalkura)
This O.P having been heard on 31.08.2011, the Forum on 30.09.2011 delivered the following :
ORDER
SMT. S.K. SREELA, MEMBER
This complaint has been filed by Sri. K. Damodaran aged 78, agriculturist, against the opposite parties alleging as follows: The complainant approached the 2nd opposite party and detailed the requirements needed for the 2 wheeler he is planning to buy. Accordingly, the 2nd opposite party recommended Hero Electric Scooter stating that the vehicle weighs 65 kg and it can run a distance of 70 km. Meter for the battery charge shows full charge. Besides the above, the complainant had specifically enquired whether the vehicle is suitable to be used in a place like Venjaramoodu which has terrain having up and down gradients, for which the 2nd opposite party had assured that this vehicle is suitable for the same condition. As per the assurance given, the complainant purchased the vehicle on 31.03.2009. On 14.04.2009 when the vehicle was driven to Venjaramoodu it stopped on the way and as it was informed by Marikar motors that it had dripped, the same was cleared and complainant took 1½ hours to cover 30 k.m. From the very next day, complainant started using the vehicle, and it was found that the vehicle could run in a speed of 10 km even in a small terrain and at high terrains it even stopped and the complainant had to get down and push it through the road. By using the vehicle for a period of 3 days, the complainant could make out that the vehicle was not suitable for a place like Venjaramoodu. The complainant informed the matter to the 2nd opposite party. Though they promised to send their staff immediately, no one was sent. Even after 4 months no one turned and hence the complainant issued a letter to the M.D, Hero Electric Company, complainant had to take the vehicle to the 2nd opposite party and after some days when the complainant went to take the vehicle, he was not told what exactly the problem was. Anyhow the complainant took back the vehicle and on use it was found that the defects still persist. Hence this complaint for refund of the cost of the vehicle along with compensation.
The opposite parties have filed separate version. The 1st opposite party in their version contends as follows: The complaint is not maintainable. The complainant were given copy of Owner's Manual and Brochure i.e; features and specifications of the vehicle. The weight of the vehicle is clearly stated and also the gradeability that is ability to climb up hills. Nobody has ever misleaded the complainant. The complainant admits that he bought the vehicle on 31.03.2009, but he took the vehicle to his house at Venjaramoodu only on 14.04.2009. Where and how the vehicle was kept those days are not disclosed in the complaint. An electric battery will give optimum performance only when it is regularly charged and discharged. It is a cardinal or golden rule regarding batteries. Leaving the vehicle idle for 14 days itself will drain the battery and may not give optimum performance. The complainant was well briefed about the vehicle and he had taken test ride in the city and fully convinced about the vehicle even before buying the same. Regarding the weight of vehicle the complainant admits his knowledge of weight of vehicle as 106 kg from owners' manual in letter dated 26.08.2009. The complainant had brought the vehicle for first service on 28.04.2009. The 2nd service was carried out on 29.06.2009. The 3rd service was carried on 22.09.2009. No defects were mentioned while bringing the vehicle on above said dates. The vehicle was serviced on 05.10.2009. The complaint was low mileage and low speed. The complaints were duly attended. It was found that low battery charge was reason for low speed. The complainant is taking undue advantage of his laches. The vehicle was performing well but the complainant had used the vehicle contrary to the direction in owners manual. There is no deficiency of service or unfair trade practice from the side of this opposite party. Hence prays for dismissal of the complaint.
In the version of the 2nd opposite party it has been contended as follows: The complaint as framed is not maintainable either in law or on facts. This opposite party is not aware as to whether the complainant had owned a Bajaj Sunny Vehicle, the purpose for which it was used or the reason for its sale. The reason alleged by the complainant for purchasing the vehicle is not known to the opposite party. That when the complainant approached the opposite party, the opposite party had represented the matter as alleged in the 2nd page 3rd paragraph of the complaint are false and hence denied. The complainant had made enquiries regarding the Hero electric vehicle. The opposite party had explained the details of the vehicle as was published in the Owner's manual. The complainant of his own choice, free will, and consent and after carrying a test drive by himself had purchased a hero electric vehicle. The condition of the complainant's area of residence was never divulged by the complainant or his son, what was sought for was a vehicle with a lesser horse power as the complainant was aged 78 and was not able to manage and ride a higher power vehicle. The complainant opted for the vehicle Hero Electric Wave as the same did not require either licence, registration or payment of road tax, thus considering the benefit of the vehicle the complainant had purchased the same. The complainant had deliberately suppressed the fact of bringing the vehicle to the service centre for carrying out service, which itself would evident that the complainant case is a cooked up one. The assumption and presumption of the complainant regarding the so called defect in the vehicle is a forfetched imagination of the complainant. The vehicle is still road worthy and able to ply the vehicle as per the manual. Further the details in the service manual depend on the load and road condition, where as the claim of the complainant cannot be equated with the terms of the service manual due to his riding habits. The claim of the complainant that the vehicle is not performing well as was represented by the opposite party are baseless, bereft of truth and denied. The complainant has been using the vehicle contrary to its direction in the owners manual and therefore there is no deficiency in service or unfair trade practice on the part of the opposite party. Any violation of the terms and conditions of the service manual would affect the performance of the vehicle for which the opposite party is no way liable. The complainant is not entitled to any of the reliefs claimed in the complaint. Hence prays for dismissal of the complaint.
Complainant as PW1 has produced Exts. P1 to P5 in support of his case. 1st opposite party had no evidence. One witness of 2nd opposite party has been examined as DW1. An expert commissioner was appointed by the Forum and his report has been marked as Ext. C1.
The points for consideration are :-
Whether the vehicle suffers from any defects as alleged in the complaint?
Whether there is any deficiency in service on the part of opposite party?
Whether the complainant is entitled for the reliefs claimed in the complaint?
Points (i) to (iii):- According to the complainant the two wheeler purchased by him is not performing as assured by the opposite parties. But the opposite parties have contended that the vehicle has no defects and it is due to the geographical condition of the place where the complainant resides, which has hilly terrains the vehicle is not suitable for such a road condition. Since the vehicle is with the opposite party, the 2nd opposite party has taken out a commission to examine the vehicle. The expert commissioner appointed by the Forum has examined the vehicle and filed his report.
As per the preliminary observations in Ext. C1, it has been stated that the vehicle is not fitted with an odometer to monitor the mileage covered for recharging or for doing the regular maintenance, which is a real drawback. That the complainant resides near a place called Valiyakattaikkal, near Venjaramoodu in Trivandrum District. This area is full of tortuous roads and there are many steep gradients very close to the house of the complainant, which he has to cover on each trip. The above cited vehicle was delivered to the complainant on 31.03.2009. As per the job records of M/s Marikar Motors, the vehicle was serviced four times there before the complaint was registered (Job card No. 3 dated 28.04.2009, Job card No. 12 dated 29.06.2009, Job card No. 64 dated 22.09.2009 and Job card No. 76 dated 05.10.2009). The commissioner further reports that, 'It may be noted that the complaint regarding low mileage and charging was reported by the complainant on job cards 12 and 76. As per the technical feed back report dated 23.01.2010, the existing batteries on the vehicle were tested and they found that the condition of the battery is defective. Hence on the report it was suggested to replace the battery under warranty. The charging system and other related components of the vehicle were found correct at that time. As per the entries on the job card No. 149 dated 20.01.2010, all the four battery of the vehicle were replaced with new set of battery under warranty'. Further the commissioner has reported that the exterior body and painting of the vehicle appears to be in good condition. The vehicle was found to be maintained and kept in a good condition. No corrosion was found on any body parts. Commissioner has concluded that the mileage of the electric vehicle is largely dependent on the road as well as the load conditions, when compared to Internal Combustion engine powered conventional vehicles. Hence the reason for low range per charge could be the geographical conditions. The vehicle is not fitted with an odometer. That this is a drawback and is a great inconvenience to the owner for monitoring the mileage covered per range or full charge. Considering the geographical conditions of the area where the complainant is residing, the vehicle was a wrong choice. That this vehicle is more suitable for city and level road application. As per the owners' manual produced before the Forum and which has been appended along with Ext. C1, it could be seen that there is no mentioning regarding the use of the vehicle in terrain areas. It has been mentioned under the operating instructions under the head Range that “Many factors govern the mileage that your electric vehicle gives you. These include …..... Terrain (road surface and hills, travelling on a soft surface, such as dirt or gravel, or climbing a hill consumes more power)”. Hence from the above it could be seen that more power will be consumed if it is used in the geographical condition as that of the place where complainant lives. But nowhere it has been mentioned that it is not suitable for usage in terrain areas. From the above, we find that since the battery which is the cardinal part of electric bike has been replaced 3 times during the warranty period itself, the complainant has been made to suffer unnecessarily. The complainant has not been able to enjoy the benefits of a new vehicle defect free and the desire of a new buyer has been disappointed by the performance of the vehicle. The complainant has paid for a new and hassle free vehicle and if it had any defect it should have been replaced forthwith. Now that the production of the vehicle has been stopped, we find that the complainant who is an 80 year old farmer/agriculturist is entitled for refund of the cost of the bike along with a cost of Rs. 2,000/- from the opposite parties. In the facts and circumstances of the case there is no order as to compensation.
In the result, complaint is allowed. The opposite parties shall take back the vehicle and shall jointly and severally refund Rs. 31,721/- along with a cost of Rs. 2,000/- within one month from the date of receipt of the order failing which the entire amount shall carry interest @ 9% from the date of receipt of the order.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30th day of September 2011.
Sd/-
S.K. SREELA : MEMBER
Sd/-
G. SIVAPRASAD : PRESIDENT
Sd/-
BEENAKUMARI. A : MEMBER
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C.C. No. 61/2010
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - K. Damodaran
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of letter dated 26.08.2009 issued by the complainant.
P2 - Copy of letter dated 14.09.2009 issued by the complainant.
P3 - Copy of letter dated 04.11.2009 issued by the complainant
P4 - Copy of letter dated 05.01.2010 issued by the complainant.
P5 - Copy of invoice dated 31.03.2009
III OPPOSITE PARTY'S WITNESS :
DW1 - V. Lakshmanan
IV OPPOSITE PARTY'S DOCUMENTS :
NIL
V COURT EXHIBIT :
C1 - Commission Report
Sd/-
PRESIDENT
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