DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM

 Dated this the 15^th day of November 2024

Filed on: 22.02.2023

PRESENT

Shri. D.B. Binu                                                                               Hon’ble President

Shri. V. Ramachandran                                                                          Hon’ble Member

Smt. Sreevidhia T.N                                                                     Hon’ble Member

C.C No. 121 OF 2023

COMPLAINANT

Saif Bin Aslam, S/o Muhammad Aslam, Padinjarechalil House, Azad Road, Market P.O., Muvattupuzha 686 673.

(Complainant Rep. by Adv. Tom Joseph, Advocate, Court Road, Muvattupuzha – 686 661)

VS

Opposite Parties

1. M/s Hero Electric Vehicle Pvt Ltd., Plot No. 57, Udyog Vihar 1V, Sector 18, Gurugram Haryana-122015. Represented by its Managing Director
2. M/s Parx Hero Bikes & batteries, East Kadathy, Market P.O, Muvattupuzha-686673 Represented by its Managing Director

(OPs’ Rep. by Adv. U. Jayakrishna, Adv. C.C. Anoop, Adv. Sooraj .D, Adv. Sruthy Xavier, Advoates, 1^st Floor, Vallamattom Estate, TD Road, Ernakulam-682 035)

FINAL ORDER

D.B. Binu, President

1. A brief statement of facts of this complaint is as stated below:

The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The complainant purchased a Photon Black electric bike, model MEPHELP0003AL4434 (motor no. HEMI2112R2797), from the 2nd opposite party on May 21, 2022, for Rs. 120,980, including a Rs. 21,000 exchange bike value. Manufactured by the 1st opposite party, the bike started experiencing abnormal jerking and rusting on the shock absorber in December 2022. Although the complainant reported the issues, and the opposite parties conducted two repairs, they failed to identify or fix the root cause of the jerking. The complainant alleges that the defect is likely a manufacturing fault, and the jerking has worsened over time, along with increased rusting on the shock absorber.

According to the complainant, the failure to identify or rectify the defect and the sale of a bike without adequate quality testing indicates a deficiency in service and an unfair trade practice. They stated that the Product Liability Clause under the New Consumer Protection Act is relevant to this case, given the mental agony and hardships endured due to the faulty product.

Despite serving legal notices, the opposite parties have not taken further action or responded to the complainant. The complainant is now seeking a full refund of Rs. 120,980 with 12% annual interest from the purchase date, along with Rs. 100,000 as compensation for financial loss, mental distress, and hardships caused by the defective bike.

2. NOTICE:

The commission issued a notice to the opposite parties, who subsequently filed their versions.

3. THE VERSION OF THE OPPOSITE PARTIES

The complaint is legally and factually unsubstantiated and was filed with malicious intent for undue financial gain.

The complainant reported jerking and rusting issues, these were addressed promptly through repairs, effectively resolving any defects. They sent a letter on February 25, 2023, instructing the complainant to contact their service engineer for further assistance, but the complainant did not follow up or bring the bike for verification.

They also state that the complainant failed to fully utilize the bike’s three-year warranty, presenting it for service only three times without mentioning issues with the shock absorber. Job cards signed by the complainant on these service visits are submitted as evidence, supporting their stance that they were responsive and willing to address any concerns.

The opposite parties stated against the complainant’s demands for a refund, interest, and compensation, maintaining that the issues were either resolved or unsubstantiated. They contend that the Product Liability Clause under the Consumer Protection Act is not applicable in this case and believe the claim is meritless.

In conclusion, the opposite parties request the commission to dismiss the complaint, deeming it an abuse of legal process, and seek exemplary costs to deter such actions.

4. Evidence:

The complainant submitted a proof affidavit along with four documents, which are marked as Exhibits A1 to A4.  Additionally, the Expert Commission report is marked as Exhibit C1.

• Exhibit A1: Copy of the tax invoice dated 21.05.2022 issued by the 2^nd  opposite party.
• Exhibit A2: Copies of the receipts issued by the 2^nd  opposite party                   (3 Nos)
• Exhibit A3: Copy of the warranty policy issued by the opposite party.
• Exhibit A4: Copy of the lawyer notice, receipt, and AD Card.

The opposite parties also submitted five documents, which are as follows:

1. Reply to the Legal Notice
2. Postal receipt of the Reply delivered to the Complainant
3. Job Card dated 07.09.2022
4. Job Card dated 24.11.2022
5. Job Card dated 09.01.2023

5. Points for Consideration:

i) Whether the complaint is maintainable or not?

ii) Whether there is any deficiency in service or unfair trade practice by the opposite parties?

iii) If so, whether the complainant is entitled to any relief?

iv) Costs of the proceedings, if any?

6. ARGUMENT NOTE FILED BY SRI. TOM JOSEPH, COUNSEL FOR THE COMPLAINANT

The complaint is regarding the defect in the electric bike supplied by the opposite parties, including abnormal jerking that began within seven months from the date of purchase. The bike has been kept idle since December 2022 onwards.

1. Exhibits A1 to A4 were marked on the side of the complainant. Exhibit A3 is the warranty policy provided for the bike, and Exhibit A4 is a copy of the evidence submitted. The opposite parties have not provided any counter-evidence.
2. Upon a perusal of Exhibit C1, it is clear that the bike suffers from manufacturing defects. The commissioner has specifically stated in the conclusion paragraph of the Exhibit C1 report that the jerking problem is due to a manufacturing defect.
3. Therefore, the complainant is entitled to a refund of the amount paid to the opposite parties, along with compensation.

7. Findings of the Expert Commission:

1. Inspection Details:

The inspection of the Hero Electric Bike, bearing Registration No. KL-17-W-7352 took place on 07/10/2023 at the complainant’s residence in Moovattupuzha, Ernakulam. Relevant representatives, including those from Hero Electric Kerala and Parx Hero Moovattupuzha, were present.

2. Vehicle Specifications:

 The bike inspected was a Hero Electric Photon LP, manufactured in March 2022 and registered in May 2022. It is powered by a 1.8 KW lithium-ion battery and a 1.2 KW motor, with peak power reaching 1.8 KW.

3. Observations:
   • The electric scooter switched on successfully, with a fully functional battery and display. However, upon acceleration, the motor did not rotate, indicating a jam in the rear wheel motor due to a rotor-stator issue.
   • Additional rust was observed on the shock absorber, and the rear wheel was stuck.
   • The complainant reported persistent jerking noises from the underbody, a problem that was not resolved by the service dealership, even after multiple attempts.
4. Required Repairs:
   • Replacement or servicing of the motor to resolve the rotor jam.
   • Removal of rust on the shock absorber.
   • Renewing the rear wheel motor, though there’s no guarantee that the issue won’t recur.
   • Recharging the battery for further use.
5. Quality Assessment:
   • The scooter’s performance was noted as below expected standards, attributed to a manufacturing defect and substandard build quality.
   • The service dealership failed to adequately address the complaints, leading to a loss of trust and diminished customer satisfaction.

Conclusion (as per the Expert Commissioner’s report):

"As a known vehicle brand, clients will expect a higher level of quality and mileage from these types of scooters. However, this scooter falls short of providing such promises. This is evident from the instances encountered by the complainant that the scooter's performance fell short of expectations when compared to company offers. The problem with this scooter was a manufacturing defect. The scooter service dealer has not taken the proper initiatives to rectify the issues. Proper checking of the scooter during periodic servicing could have avoided the instances encountered by the complainant."

We have meticulously considered the detailed submissions of both parties, as well as thoroughly reviewed the entire record of evidence, including the argument notes.

i) . Maintainability of the Complaint:

The complaint filed under Section 35 of the Consumer Protection Act, 2019 is deemed maintainable as it pertains to an alleged deficiency in service and manufacturing defect in the electric bike sold to the complainant. The complainant has the standing as a consumer under the Act, having purchased the bike for consideration. The facts and submissions confirm that the complainant has a legitimate grievance under the Consumer Protection Act, 2019. Hence, the complaint is maintainable.

ii). Deficiency in Service and Negligence by the Opposite Parties

The complainant’s primary grievance is the persistent jerking issue and rust formation in the shock absorber, which appeared within seven months of purchase. Despite repairs on two occasions, the opposite parties failed to identify or permanently resolve the defect, resulting in the continued deterioration of the vehicle. As per the Expert Commissioner’s report (Exhibit C1), the jerking issue is attributed to a manufacturing defect in the motor and the bike’s substandard build quality. The report also highlights rust in the shock absorber and a jammed rear wheel motor, making the bike unusable.

The Consumer Protection Act, 2019 defines "deficiency" under Section 2(11) as any fault, imperfection, shortcoming, or inadequacy in the quality, nature, and manner of performance that is required to be maintained by law or as per a contract or otherwise. The opposite parties’ failure to remedy these issues constitutes a deficiency in service. Additionally, under Section 2(47) of the Act, which defines "unfair trade practice," the complainant’s experience indicates that the opposite parties provided a product that was defective in quality, thereby misleading the consumer.

The opposite parties’ response in stating that they attempted repairs but that the complainant failed to follow up is unsubstantiated, as records indicate multiple service attempts. The opposite parties have also relied on job cards dated 07.09.2022, 24.11.2022, and 09.01.2023 as proof of service, but these did not resolve the jerking issue. The opposite parties, thus, failed in their duty to provide adequate post-sale service, which constitutes a deficiency in service.

The Expert Commissioner’s report confirms significant defects in the complainant's Hero Electric Bike, including a jammed motor, rusted shock absorber, and persistent jerking. These issues, which arose within months of purchase, point to inherent manufacturing flaws. Despite service attempts, the opposite parties failed to resolve the problems, indicating both product and service deficiencies. The Commissioner’s findings highlight a lack of adequate quality control, compromising the bike’s usability and reliability. The report underscores the complainant’s right to quality assurance, validating the claims for a refund and compensation under consumer protection laws for distress and inconvenience faced.

The Product Liability Clause under the Consumer Protection Act, 2019, is central to this case. This clause holds manufacturers, sellers, and service providers accountable for any harm or loss caused by defects in goods or services. Here, the complainant’s Hero Electric Bike showed significant defects within months, including motor issues and rusting, which impacted its usability and safety. Despite service attempts, these flaws persisted, indicating manufacturing deficiencies. Under this clause, the complainant is entitled to seek redressal, as the opposite parties failed to provide a product that met expected safety and quality standards, thereby breaching consumer trust.

iii). Liability of the Opposite Parties:

Based on the Expert Commissioner’s findings, it is evident that the jerking issue and rusting of the shock absorber are manufacturing defects. The opposite parties, the manufacturer and authorized dealer, are jointly liable for delivering a defective product to the complainant. The Product Liability Clause, as per Section 82 of the Consumer Protection Act, 2019, makes manufacturers and sellers liable for harm caused by manufacturing defects or inadequate services.

iv). Entitlement to Relief:

Considering the facts and circumstances of this case, the complainant has sufficiently proven that the opposite parties failed to provide a defect-free product and failed to perform adequate repairs.

                        In this case, the Commission empathizes with the frustration and disappointment of the complainant, who placed trust in a brand known for reliability, only to face persistent issues with a product that fell far short of expectations. Buying a vehicle is a significant investment, often made with hopes for long-term service and reliability. The complainant, instead, faced continuous defects, resulting in stress, financial strain, and a sense of helplessness when their concerns were not adequately addressed. This judgment seeks to restore faith in consumer rights, acknowledging the emotional and financial impact of such experiences, and reinforces that consumers deserve products that truly deliver on the promises made to them.

We determine that issue numbers (I) to (IV) are resolved in the complainant's favour due to the significant service deficiency on the part of the Opposite Parties. Consequently, the complainant has endured considerable inconvenience, mental distress, hardships, and financial losses as a result of the negligence of the Opposite Parties.

In view of the above facts and circumstances of the case, we are of the opinion that the Opposite Parties are liable to compensate the complainant.
Hence, the prayer is allowed as follows:

1. The Opposite Parties shall refund ₹ 1,20,980 (Rupees One Lakh Twenty Thousand Nine Hundred and Eighty Only) to the complainant as per Exhibit C1.
2. The Opposite Parties shall pay ₹ 50,000 (Rupees Fifty Thousand Only) as compensation for financial loss, mental distress, and hardships caused by the defective product and failure to provide adequate service. This amount is awarded for deficiency in service, unfair trade practices, and the mental and physical hardships endured by the complainant.
3. The Opposite Parties shall pay ₹ 10,000 (Rupees Ten Thousand Only) towards the costs of proceedings incurred by the complainant in pursuing this complaint.

The Opposite Parties are jointly and severally liable for the fulfilment of the above orders, which must be executed within 45 days from the date of receiving this order. Failure to comply with payment orders under points I and II will result in interest at the rate of 9% per annum from the date of filing the complaint (22.02.2023) until the date of full payment realization.

Pronounced in the Open Commission this the 15^th day of November , 2024.

 Sd/-

D.B. Binu, President

Sd/-

V. Ramachandran,  Member

Sd/-

Sreevidhia T.N, Member

Forwarded/By Order,

                                                                               Assistant Registrar

APPENDIX

Complainant’s Evidence

1. Exhibit A1: Copy of the tax invoice dated 21.05.2022 issued by the 2^nd  opposite party.
2. Exhibit A2: Copies of the receipts issued by the 2nd opposite party                   (3 Nos)
3. Exhibit A3: Copy of the warranty policy issued by the opposite party.
4. Exhibit A4: Copy of the lawyer notice, receipt, and AD Card.
5. Exhibit C1: Expert Commission report.

Opposite Parties’ Evidence

NIL

Date of Despatch

By Hand       ::

By post         ::

AKR/

Order in CC No. 121/2023

Dated : 15/11/2024