Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.102/09.05.2019
Jasbir Singh Rana, Chamber No.115-116, Western Wing,
Tis Hazari Court, Delhi-110054 ...Complainant
Versus
OP1- Imperial Cycle Company, (through its Proprietor)
53-2, D.B. Gupta Road, Karol Bagh, Delhi-110005
OP-2 Hero Cycle Limited, (through its Manager,
Customer Care), 2A-1001, 10th Floor, Two Horizon Centre,
Sec 43, DLF Phase-V, Gurgaon, Haryana-122002 ...Opposite Party
Order Reserved on: 27.02.2023
Date of Order: 04 05.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER
1.1. (Introduction to case of parties) : The complainant/Jasbir Singh Rana saw and read an advertisement by OP2/Hero Cycle Limited of its product Lectro e-bike (hereinafter referred as e-bike or e-cycle), he contacted OP12, who advised to contact OP1/Imperial Cycle Company being dealer of OP2. Complainant was lured by the advertisement and presentation shown by OP1 on visit there. He gave advance amount of Rs. 3,000/- and then paid further amount to the OP1 for buying e-bike, however, the e-bike was not as per specifications of quantity and quality assured, for which OP1 was complained apart from contacting customer care centre of OP2. Since OP1/retailer and OP2/manufacturer are in collusion of each other for selling sub-standard e-bike/e-cycle. The complainant had paid total cost of Rs. 26,999/- and the same is being sought returned from OP, apart from compensation of Rs. 20,000/- for suffering mental harassment, agony and pain due to deficiency in services and cost of Rs. 20,000/-.
1.2: OP1 abstained from the proceeding, it was proceeded ex-parte. However, the OP2 filed its detailed reply and opposed the complaint vehemently, in substance there was no manufacturing defect as such pointed out in the entire complaint nor there is any deficiency in services against OP2. The complainant was explained features and specifications of e-bike by the staff of OP1, e-bike was not of sub-standard in the quality or any deficiency in specification of the product.
2.1 (Case of complainant ) : It was December, when complainant saw advertisement of electro e-bike, he was also influenced by the sales staff of OP1, being dealer of OP2 and after explaining of the features of e-bike to him, the complainant was also handed over printed manual of e-bike (being annexed with the complaint), that e-bike/e-cycle speed will go up-to 25 km/h and will run 25 km/h on throttle and at a constant speed, without using pedals, which is also mentioned in the brochure. Moreover, it was also told that front wheel was detachable and could be detached without using any tool, known as Quick Release System (QRS), which was also found mentioned in the brochure provided. Thus, complainant bought the e-bike, firstly making advance payment of Rs. 3,000/- on 24.12.2018, before actual date of purchase on 04.01.2019 and total amount paid was Rs.26,999/- vide invoice no. 1456 (annexed with the complaint). Thus, complainant is a consumer.
2.2: However, the advance money of Rs. 3,000/- transferred online on 24.12.2018 but it was not adjusted in the final invoice, thus excess amount was charged from him. After complainant was actually delivered e-cycle, no head lamp/head light was found on e-bike, whereas it was demonstrated and mentioned in the picture in manual of e-cycle by OP. When OP1 was confronted, he told that light was being sold separately on paying of Rs. 2,000/-. The complainant also explained the e-cycle is running only 14-15 km on battery/throttle without using pedal, the speed was also not exceeding beyond 20 km/h, which is contrary to as promised and mentioned in the brochure. The QRS was also absent from the cycle. On 05.01.2019 the complainant called OP1 and apprised him, however, he asked the complainant to wait for improve performance of e-cycle after subsequent charge, since it is new cycle. Whereas there was no improvement even after a month of use but actually the performance deteriorated. On 02.02.2019, the complainant again called OP1 but he took the plea that OP1 is just seller of the bike and in case complainant has any issue, he should contact customer care of OP2. The complainant called customer care of several times on phone, it remained unanswered, the screen shots thereof are annexed with the complaint. Moreover, there was warranty on various parts of e-cycle ranging from six month to one year but OPs were deliberately trying to keep wait to expire warranty period, under false excuses and gain time knowing well the e-cycle is inherently sub-standard and issue cannot be resolved. The complainant could not use and enjoy the e-cycle, consequently, he suffered financially as well as mentally. On the other side OPs are in collusion with each other, they duped the complainant by selling a sub-standard e-cycle. That is why the complaint.
The complaint is accompanying with the invoice, brochure Electro e-bike, warranty card, screen shots of telephone calls.
3.1 (Case of OP1): OP1 abstain from the proceeding, there is no reply by OP1.
3.2 (Case of OP2) - However, OP2 has filed its reply in detail. The OP2's reply is based on three aspects broadly, firstly some of the facts are stated being manufacturer of e-cycle, some other facts are narrated as per information received from OP1 and some other facts are left to response that it is being case of OP1 in its cognizance.
OP2 opposed the complaint vehemently, in substance, there was no manufacturing defect as such perceived in the complaint nor there is any deficiency in services. The complainant was explained features and specifications of e-bike by the staff of OP1 in show-room, being a standard practice, while dealing with the customers. The complainant was handed over a manual containing all the technical and user related information about the e-bike, which complainant has already filed. The relevant information provided in the manual is of - (a) Ideal riding conditions for the e-bike would be -(1) environmental temperature of 10o-45oc; (2) mild wind, flat road (tarmac); (3) no frequent starting or braking; (4) the running range is about 25-30 kms.; (b) e-bike covers 30 kms in pedaled mode and 25 kms in throttle mode at a constant speed under appropriate conditions in one full charge; (c) some of the components of e-bike require weekly, monthly, six-monthly and yearly lubrication for smooth and efficient running of the e-bike; (d) maximum speed of the e-bike is 25 kms per hour. The OP also narrates (in paragraph 3 of the preliminary submissions) about potential problem, fault reasons and how the same may be eliminated. OP also gives details of warranty period for various components. However, there was no sub-standard in the quality or any deficiency in specification of the product.
3.3 The head lamp/head light shown in the manual was a part of standard fitment with e-bike initially, but it was discontinued by OP2 in October 2018, which was also posted (as a disclaimer) on the website of OP2. The OP2 also circulated internally indicating discontinuation of head lamps of e-bike but without any change in MRP of e-bike. The feature of QRS is not standard feature available in all modes of e-bike and it comes separately along with front wheel, the manual clearly states “If your bike comes with a quick release front wheel, this will usually come separate to the wheel and will look something like the picture below.”
3.4 The information was made available to the complainant by OP1 and after satisfying with the features of e-bike and other terms and conditions, the complainant paid Rs. 3,000/- online to OP1 on 24.12.2018 and total price of bike was Rs. 26,999/- and on 04.01.2019, balance amount of Rs. 24,000/- was paid to OP1 and he took the delivery of e-bike from the showroom of OP1. The warranty provided with e-bike covers all manufacturing failures for a period of one year from 04.01.2019 to 04.01.2020, which was under warranty on the date of filing of complaint. The complainant did not ask for model of e-bike with QRS features and the manual of e-bike was a common manual for all model of e-bike, which clearly states that specification may vary with a different model. It was not necessary all features given in the manual and/or explained by the staff of OP1, are to be a part of all models of e-bike. The complainant took the delivery of vehicle after making the payment of Rs. 26,999/- as per invoice, particularly he is a practicing Advocate. There was no misrepresentation to the complainant by the OP2. Otherwise, there are many facts known or related with the OP1, including that amount was asked to be deposited in the cash.
3.5 On 02.02.2019, the complainant called OP1 regarding issue of brake of e-bike and OP1 advised to bring e-bike for check-up at the showroom of OP1. However, he did not show and bring the bike at showroom, there was no any other issue. As per the record of OP2, no call of complainant was received at customer service helpline.
3.6 Since there is no deficiency of services and as per information received by OP2 from OP1, the complainant had just an issue of brake in the e-bike but despite advises the e-bike was not brought to showroom. There is no manufacturing defect, therefore, the complaint is liable to be dismissed.
The reply is accompanying with Board resolution of OP2 and also copy of internal circular dated 28.10.2018 regarding discontinuation of head -lamp.
4. (Replication of complainant) : The complainant filed rejoinder to the reply of OP2, he reiterates the contents of complaint as well as he denies the allegations of reply of OP2, by culling out that there are admitted facts by the OP2 of misleading information given in the manual to lure the buyers or showing excuses about the specifications, which may vary of different model, if so then why the manual does not specify by them model wise. The OP1 is agent of OP2, therefore, on the principle of law agency the OP2 cannot rescue from the charges and liabilities just by saying that the same relates to OP1. When a customer tries to contact OP2, they do not respond. The feature of e-bike mentioned in manual is different from practical use of the e-bike purchased, which may be either of manufacturing defect or a devise of OPs to cheat innocent customers.
5.1 (Evidence): Complainant filed his own affidavit of evidence, in detail, coupled with documentary record on the lines of complaint and rejoinder.
5.2: On the other side, OP2’s Sh. Sumit Aggarwal, Vice President of OP2 filed his affidavit of evidence, it is also on the pattern of reply along with documents filed with the reply.
6. (Final hearing): The complainant and the OP2 have filed their respective written arguments; the written arguments are compilation of the pleading and evidence. Moreover, Sh. Milan Sharma Advocate for complainant and Shri Sanchit Gauri, Advocate for OP2 made the final submissions. Their contentions will be dealt appropriately.
7.1 (Findings): The contentions of both the sides are considered, keeping in view the material of record. There are some undisputed facts. It is not disputed that complainant had bought e-bike from OP1, being retailer of OP2/manufacturer, the invoice is of Rs. 26,999/-. The complainant was handed over the manual/brochure of e-bike. It is also not disputed that the brochure is common for all models, and specifications may vary in different models. There was a separate circular of October 2018 of disclaimer that 'head -lamp shown in picture is not part of standard fitment'. Such supplementary information is not mentioned in brochure but separately on the website [being OP2’s reply paragraph 3 (iv) of preliminary submission and paragraph 5 on merits).
7.2.1: There are rival stands and disputed facts, the complainant contends that he paid advance amount of Rs. 3,000/- and later-on at the time of purchase and delivery of e-bike, he paid the price in cash but that amount of Rs. 3,000/- was not adjusted. On the other side, the stand of OP2 is the total price was Rs. 26,999/- and initially Rs. 3,000/- was paid online and subsequently Rs. 24,000/- was paid, consequently there was no excess charges by OP1.
On plain leading of complaint (paragraph 4) and affidavit of evidence (5) of complainant, it is specifically mentioned the total amount was paid Rs. 26,999/-. The invoice issued on 04.01.2019 is also of Rs. 26,999/-. Therefore, there is nothing emerging that excess amount was paid or the previous amount was not adjusted. This contention is disposed off.
7.2.2: The other controversy that OP2 contends that brochure is a common for all different models of e-bike and on the other side complainant has grievances that manual should also contain specifically about the specific model being sold so that the purchaser may remain aware of features or conditions of a bike being purchased.
By comparing the submission of both sides, what emerged is that the brochure is common and it is not indicating specifically about the e-bike sold to the complainant. Thus, there is substance in the submissions of complainant that when the costly product is being manufactured and sold specifically model-wise having distinct features and functions, then why there cannot be a small booklet of brochure be prepared and provided to be in consonance with the product being sold, it will also do clarity to all concern about the products, its specifications, its features and so on.
7.2.3 Similarly, in continuation of the previous discussion, the OP2 relies upon 'disclaimer clause' of head -light on the web-site of OP2 and an internal circular of October 2018 (which is annexed-B at page 17 of the reply; Exh. RW1/2 being part of affidavit of OP2) that it was made norms to the dealers that and lamp shown is not part of the standard fitment. However, this establishes two aspects, firstly this information was not made part of common brochure, there is also no supplementary brochure or any endorsement in the common brochure about the disclaimer. Accordingly, when broacher/manual is provided, the information given therein is incomplete but it is but natural for customer takes such information as complete information being provided at the time of selling the product. Lastly the circular mentions names of dealers whom circular was sent, this circular does not contain name of OP1. Thus, when the circular was even not sent to OP1, then how it can be assumed that the disclaimer clause was communicated by OP1 to the complainant, while buying e-bike. The brochure is a important document, it communicates the information available with the manufacturer and retailer to the buyer so that the consumer may know as to what are the features and conditions of the product being sold and bought. It is also not fair on the parts of OPs that some information is left without communicating it is left and it is to be consulted by visiting the web-site. Why so? Therefore, the circular of October 2018 is in fact goes against the OPs.
7.2.4 The next core issue is with regard to the product in question, as on the one side complainant claims that he had contacted the OP2 after looking at the published advertisement of e-bike, as per advise he went to retailer OP1. He was demonstrated and also handed over the manual that the product is having feature of QRS which was factually missing when he experienced the product immediately after buying it. Moreover, it was pointed out to OP1 immediately, On the other wise OP2 has reservation that QRS in the bike is not a standard feature in all the models of e-bike, which comes separately along with the front wheel, the manual also specifies so, which was also mentioned by OP1. OP2 also refers Maruti Udyog Ltd. Vs Hasmukh Lakshmichand & others Manu/CF/0218/2009 to emphasize definition of 'manufacturing defect' in dictionary meaning 'frailty or shortcoming in a product resulting from a departure from its design specification during production'.
In order to resolve this controversy, the grievances of complainant is of shortcoming in the product that he was demonstrated as well as convinced that there is feature of QRS in e-bike. However, OP1 remained absent, it was proceeded ex-parte for want of appearance and the stand of OP2 is based as to whatever was told by OP1. OP2 is not witness to the facts taken inter-se between the complainant and the OP1 and what OP2 asserts it is just hear-say. Therefore, on the one side complainant bought the product having QRS feature pursuant to demonstration of features of product by OP1 but actually that feature of QRS was not in e-bike purchased by the complainant. The OP1 could have rebut the evidence of complainant, if the situation was otherwise but OP1 opted to remain away from the proceedings of this case. There is also no evidence by the OP2 to rebut the case of complainant. Although, OP2 took the stand that there was brake issue of e-bike for which complainant had contacted OP1, however, on what basis and evidence OP2 says so, it has not been proved. There is also no record proved by the OP2 to this effect.
At this stage, it is relevant and material to refer definition of unfair trade practice mentioned in section 2 (r) of the Consumer Protection Act 1986 that in order to promote the sale of product, the means are adopted which are not fair, which includes falsely representing that product being sold is of particular standard, quality, composition, style or model. The situation of present case is squarely covered in the definition of 2(r) of the Act 1986, since the complainant was demonstrated and sold e-bike having feature of QRS without any extra charges but the e-bike delivered was without this feature of QRS. The OP2 could not rebut the case of complainant on the basis of hear-say from OP1 nor it could establish that complainant had bought e-cycle without QRS. The complainant had filed the complaint for composite grievances, which are falling under unfair trade practice, as well as for non-performance as demonstrated, while perceiving it may be manufacturing defect, which the OP2 is construing exclusive case of manufacturing defect, whereas it is not so.
The complainant had also filed screen shots that he tried to contact the customer care center but there was no answer to it. This is deficiency of services on the part of OPs. It is apparent that OP1 is not appearing in the proceedings, however, OP2 has pleaded many facts which were pertaining to OP1, vis a vis OP1 and OP2 are retailer and manufacturer, there is also relationship of agency. That is why both the are held liable.
8.1 In view of the analysis, discussion and conclusion drawn in the aforementioned paragraph, the complainant has established his complaint against the OPs and he is held entitled for return of invoice price of e-cycle of Rs. 26,999/. Accordingly, OP1 and OP2 are directed to pay jointly or severely a sum of Rs. 26,999/- to the complainant. The complainant has also claimed damages of Rs. 20,000/- on account of mental harassment, agony and pain on account of sufferings, the same are quantified as Rs. 5,000/- in favour of complainant and against the OP1 and OP2 jointly or severely, apart from cost of Rs. 5,000/-.
The amount will be payable by the OPs, jointly or severely within 30 days from the receipt of this order, failing which the OPs will be liable pay to simple interest at the rate of 6% p.a. on amount of Rs. 26,999/- from the date of complaint till realization of amount.
8.2. Since, the OPs are directed for payment of amount, therefore, the complainant is also directed to return the e-bike to the OPs and OPs will write to complainant to collect the e-bike as well as to pay the amount too. The OPs will issue acknowledgement of receipt of e-bike from complainant. Accordingly, the complaint is disposed off.
9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
10: Announced on this 4th day of May, 2023 [वैशाख 14 , साका 1945].
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
