Versus
- Hero Electric Vehicles Pvt. Ltd. through its Managing Director, 50, Okhla, Industrial Estate-III, New Delhi-110020.
- Naveen Munjal Managing Director of M/s. Hero Electric Vehicles Pvt. Ltd. through its Managing Director, 50, Okhla, Industrial Estate-III, New Delhi-110020.
- India Autos Through its Prop./Owner/Principal Officer, R/o.14579, G.T. Road, Dholewal, Ludhiana. …..Opposite parties
Complaint Under Section 35 of the Consumer Protection Act, 2019.
QUORUM:
SH. SANJEEV BATRA, PRESIDENT
SH. JASWINDER SINGH, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : Sh. Shiv Kumar, Advocate.
For OPs : Exparte.
ORDER
PER JASWINDER SINGH, MEMBER
1. Briefly stated, the facts of the complaint are that the complainant visited the showroom of opposite party No.3 for the purchase of Hero Electric bike model MNYSX E5 (Black) colour which was represented to be having warranty of 3 years on bike and battery. As per representation of the opposite party No.3, the complainant purchased the said electric bike on 05.12.2018. The complanant also got the vehicle insured from GO Digit General Insurance Company. The opposite parties claimed that the said vehicle has an average of 61 Km at one charge. However, the average of the bike is less than 61 Km to one charge. Even the vehicle could not be charged full on its charging and the battery took more time to charge due to charging problem and got short. The average of the bike was 12 to 15 Km. The motor sensor was also got short due to some battery problem. The complainant visited the showroom of opposite party No.3 on 15.02.2019 and opposite party No.3 repaired the motor sensor but the battery issue remained the same due to manufacturing defect in the same. The complainant faced the same problem after few days and again visited opposite party No.3 and apprised this fact to opposite party No.3 but opposite party No.3 lingered on the matter on one pretext or the other and asked the complainant to come after few days by saying that the defect in the battery would be rectified later as the batteries were not available in the showroom and the battery had to be procured from opposite party No.1. In the year 2019, the complainant visited 3-4 times with opposite party No.3 but the opposite parties failed to resolve the issue. The complainant again approached opposite party No.3 in the month of March 2020 and told it to change the battery as it was under warranty. However, opposite party No.3 told that they had not received the battery till date and asked the complainant to come after some time. Thereafter, the lockdown was imposed in India due to which complainant could not approach the opposite parties. As such, the complainant visited opposite party No.3 on 20.04.2021 and told to change the battery. Opposite party No.3 filled the warranty claim form and sent it to opposite party No.3 along with mail but with no result. Opposite party No.3 every time assured the complainant that the issue would be resolved very soon and asked him to come after few days. The complainant had to suffer financial loss due to repeated visits to opposite party No.3 as he had to leave his work for repair of the vehicle. It is further urged that on 10.08.2021 the bike could not start due to defect in motor and battery. The complainant again visited opposite party No.3 and apprised the same to opposite party No.3 upon which opposite party No.3 took the vehicle and prepared a job order and assured the complainant for the change of battery and motor. Opposite party No.3 further assured to give a new vehicle in case the battery could not be changed. Since then the vehicle is lying in possession of opposite party No.3 and is still under warranty. Many other customers were also facing problem with the electric vehicles of the opposite parties. The complainant suffered financial loss due to non-availability of the electric bike and also suffered mental pain and agony at the hands of opposite parties for which the opposite parties are liable to pay compensation of Rs.5,00,000/- along with refund of price of the vehicle of Rs.54,990/-. The complainant also prayed for litigation expenses at Rs.33,000/-. Hence this Complaint.
2. Notice was issued to the opposite parties but the opposite parties did not appear despite service and were proceeded against exparte vide order dated 24.05.2022.
3. In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered Ex. A1 pamphlet of the electric vehicle, Ex. A2 is the invoice dated 05.12.2018, Ex. A3 is the copy of insurance policy of the vehicle, Ex. A4 is the copy of registration certificate of the vehicle, Ex. A5 is the warranty card issued by opposite party No.3, Ex. A6 is the copy of warranty claim form, Ex. A7 is the copy of job order prepared by opposite party No.3 and closed the evidence.
4. We have heard the arguments of the counsel for the complainant also gone through the complaint, affidavit and annexed documents produced on record by the complainant.
5. From the close scrutiny of the complaint, affidavit and documents, it can easily be gathered that the e-bike was purchased on 05.12.2018 on the assurance of the opposite parties that it covers an average of 61 Km on one charge. However, due to defect in the charging of the battery, it was hardly able to cover distance of 12-15 Km on one charge. The complainant approached the opposite parties on 15.02.2019 and acting upon the complaint of the complainant, opposite party No.3 repaired the motor sensor but the issue of the battery remained the same. Even, thereafter, the complainant had been approaching opposite party No.3 and registering his complaint and requesting him to rectify the defect in the battery by way of replacement but opposite party No.3 kept the matter pending on one pretext or the other including the non-availability of the battery. The core issue of replacement of the battery remained unresolved even though the opposite parties were under an obligation to replace the vehicle as the same was within the warranty period. Even after lifting of lock-down due to COVID pandemic, the complainant again visited and requested opposite party No.3 to do the needful. Opposite party No.3 just to satisfy the complainant, got the warranty claim filled from the complainant and stated that he has sent the same to opposite party No.1. On 10.08.2021, the electric bike could not start due to defect in the motor and the battery. The complainant took the vehicle to opposite party No.3 who assured that the defect will be removed since the vehicle is under warranty period but the opposite parties failed to remove the defect.
6. It is pertinent to mention that the vehicle in question is an e-bike and its smooth running is only possible if the battery is fully functional and operative. In the absence of an efficient battery, it cannot be operated. So the defect in the battery as well as in the motor is a manufacturing defect which the opposite parties failed to rectify despite the repeated visits by the complainant. The complainant was deprived of the full usage of e-bike due to the act and conduct of the opposite parties. Section 84 of the Consumer Protection Act provides for the liability of the product manufacturer and Section 86 of the Act provides for the liability of the product seller which is reproduced hereunder:-
“84. Liability of product manufacturer: (1) A product manufacturer shall be liable in a product liability action, ifthe product contains a manufacturing defect; or
- the product is defective in design; or
- there is a deviation from manufacturing specifications; or
- the product fails to contain adequate instructions of correct usage to prevent any harm or any warning regarding improper or incorrect usage.
(2) A product manufacturer shall be liable in a product liability action even if he proves that he was not negligent or fraudulent in making the express warranty of a product.
86. Liability of product sellers. A product seller who is not a product manufacturer shall be liable in a product liability action, if
(a) he has exercised substantial control over the designing, testing, manufacturing, packaging or labeling of a product that caused harm; or
(b) he has altered or modified the product and such alteration or modification was the substantial factor in causing the harm; or
(c) he has made an express warranty of a product independent or any express warranty made by a manufacturer and such product failed to conform to the express warranty made by the product seller which caused the harm; or
(d) the product has been sold by him and the identity of product manufacturer of such product is not known, or if known, the service of notice or process or warrant cannot be effected on him or he is not subject to the law which is in force in India or the order, if any, passed or to be passed cannot been forced against him; or
(e) he failed to exercise reasonable care in assembling, inspecting or maintaining such product or he did not pass on the warnings or instructions of the product manufacturer regarding the dangers involved or proper usage of the product while selling such product and such failure was the proximate cause of the harm.
7. In the given set of circumstances, the case squarely falls within the ambit of Section 84 and 86 of the Act and the product liability action initiated by him against the opposite parties on account of sale of defective product i.e. e-bike is sustainable.
8. As a result of above discussion, the complaint is allowed with an order that the opposite parties are directed to refund the price of e-bike of Rs.54,990/- to the complainant. The opposite parties shall further pay a composite cost of Rs.7,000/- (Rupees Seven Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
9. Due to huge pendency of cases, the complaint could not be decided within statutory period.
(Jaswinder Singh) (Sanjeev Batra)
Member President
Announced in Open Commission.
Dated:15.11.2022.
Gobind Ram.
Rajinder Vs Hero Electric Vehicles CC/21/549
Present: Sh. Shiv Kumar, Advocate for complainant.
OPs exparte.
Arguments heard. Vide separate detailed order of today, the complaint is allowed with an order that the opposite parties are directed to refund the price of e-bike of Rs.54,990/- to the complainant. The opposite parties shall further pay a composite cost of Rs.7,000/- (Rupees Seven Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
(Jaswinder Singh) (Sanjeev Batra)
Member President
Announced in Open Commission.
Dated:15.11.2022.
Gobind Ram.
