KERALA STATE CONSUMER DISPUTES REDRESSAL CMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM

FIRST APPEAL.144/2012

JUDGMENT DATED: 30..6..2012

PRESENT

SRI.K.CHANDRADAS NADAR  : JUDICIAL MEMBER

Hero Electric Company,                     : APPELLANT

Hero Nagar, G.T.Road, Ludhiyana,

Punjab.

(By Adv.G.S.Kalkura)

               Vs.

1. K.Damodaran,                                : RESPONDENTS

    Lalitha Bhavan, Valiyakattakkal,

    Venjaramoodu,

    Thiruvananthapuram.

2.  Marikar Motors Pvt. Ltd.,

     Statue, Thiruvananthapuram.

JUDGMENT

SRI.K.CHANDRADAS NADAR  : JUDICIAL MEMBER

            The appellant was the 1^st opposite party in CC.61/10 in the file of CDRF, Thiruvananthapuram.  1^st respondent was the complainant.  He approached the Forum alleging deficiency in service on the part of the appellant and the 2^nd  opposite party in the following matter.  The complainant is an agriculturist and wanted to purchase a two wheeler.  He approached the 2^nd opposite party and told his requirements.  The 2^nd opposite party recommended Hero Electric scooter.  The complainant was told that the vehicle weighs 65Kgm and it can run a distance  of 70KM,  when the meter for the battery  shows full charge.  The complainant had specifically enquired whether the vehicle was suitable  to be used in a place like Venjaramood which has terrain having up and down gradients.  The 2^nd opposite party assured that the vehicle was suitable for such a terrain.  Accordingly the complainant purchased the vehicle on 31.3.09.  On 14.3.09 when the vehicle was driven to Venjaramood it stopped on the way.  The fact was informed to the 2^nd opposite party.  The complainant took 1 ½ hours to cover 30Kms. From the very next day the complainant started using the vehicle  it was found that the vehicle could run only at a speed of 10Kms per hour  even in a level terrain at up gradients it even stopped and the complainant had to get down and push it through the road. By using the vehicle for 3 days the complainant  could make  out that the vehicle was not suitable for a place like Venjaramood.  The 2^nd opposite party promised to send their staff immediately to look into the matter but no one was sent.  Even after 4 months no one attended the complaint. Hence the complainant issued a letter to the 1^st opposite party.  The vehicle had to be taken to the 2^nd opposite party by the  complainant .  When the complainant went to take  the vehicle back he was not told what exactly was the problem.  Anyhow the complainant took back the vehicle and found that the defects still persisted.  Accordingly the complainant approached the Forum and  sought refund of the cost of the vehicle and compensation.

          2. The opposite parties filed separate version.  1^st opposite party contended that the complainant was given copy of Owner’s Manual and brochure that features the specifications of the vehicle.  Nobody has ever misleaded the complainant .  The complainant has not disclosed where he has kept the vehicle  after purchase on 31.3.09 till 14.4.09.  The electric battery will give optimum performance only when it is regularly charged.  If the battery was left idle  for 14 days that itself will drain the battery and it may not give optimum performance.  The complainant was  well briefed  about the vehicle and he had taken  the vehicle  for test ride in the city and was fully convinced about the performance of the vehicle before buying the same.  He was aware of the fact that the weight of the vehicle was 106Kg from the owner’s manual.  The complainant  brought the vehicle for first service on 28.4.09. No defect was mentioned while the complainant brought the vehicle for the  first three services.  Thereafter the vehicle was serviced on 5.10.09. The complaint was low mileage and low speed.  The  complaints were duly attended to.  It was found that low battery charge was the reason for low speed.  The complainant  is taking  undue advantage of his   own laches.  There was no deficiency in service for un fair trade practice.

          3. The 2^nd opposite party contended that the allegation that the complainant approached them and apprised of his requirements is false.  The complainant had  made enquiries regarding Hero Electric vehicle.  The 2^nd opposite party explained the details of the vehicle as  was published in the Owner’s Manual.  The complainant selected the vehicle on his own free will and after conducting test ride.  The condition of the residential area of the complainant was never divulged to the 2^nd opposite party. What was sought for was a vehicle with lesser horse power as the complainant was aged 78 years and was not able to manage or ride a high power vehicle.  The complainant opted this vehicle as the same did not require either license or registration or payment of road tax.  The complainant had deliberately suppressed  the fact of bringing the vehicle to the service centre for carrying out service.  The vehicle is still roadworthy and able to be plied as per the specifications in the manual.  In other respects the contentions are similar to the contentions of the 1^st opposite party.

          4. Before the CDRF, the complainant gave evidence and Exts.P1 to P5 were marked on his side.  One witness was examined on the side of the  2^nd opposite party. An expert commissioner was appointed by the Forum.  His report was marked as Ext.C1. The Forum relying mainly on the report of the expert commissioner directed the opposite parties to refund the cost of the bike after taking back the vehicle.  No compensation was ordered.  The opposite parties were directed to pay costs of Rs.2000/-.  The 1^st opposite party has challenged the correctness of the conclusions of the CDRF.

          5. In order to decide the dispute that the vehicle purchased by the complainant suffered   from inherent lack of capacity to run up gradients and  was performing poorly,  the main evidence available is the report of the expert commissioner marked as Ext.C1.  The main defect in the vehicle pointed out by the Commissioner in Ext.C1 is that the vehicle is not fitted with  a odometer to monitor the distance covered for  recharging the battery or doing the regular maintenance.  This is certainly a serious drawback as observed by the Commissioner.  If the battery of the vehicle is to be recharged at the appropriate time the user must certainly know how much distance it covered. It has come out that the area in which  the complainant resides is full of  steep gradients and tortuous roads.  It is also observed that the vehicle could not run up gradients in the expected speed.  Further at that time the batteries got discharged rapidly.  So the user was not in a position to know the appropriate time to recharge the battery.It  followed that he could not certainly be found fault with if there was some lapse on his part in  recharging the battery at the appropriate time .  Commissioner’s report clearly shows that the vehicle was well maintained in other respects. From the operating instructions provided by the opposite parties itself,  it is seen that many factors govern the mileage of the vehicle .  Those factors included terrain, road surface and hills. Travelling on a soft surface such as  dirt or gravel or climbing a hill would consume more power.  So the complainant could not be found fault with,  if on the half way unexpectedly the battery got discharged.  So the contention that because of the fault of the complainant the efficiency of the batteries might have been lost cannot be accepted.  Further the problems persisted even after changing the batteries. As rightly observed by the Forum,  the complainant chose to purchase a new vehicle so that he can use it without any trouble.  In view of the circumstances available from Ext.C1 the CDRF was fully justified in ordering refund of the value of the vehicle particularly when the 1^st opposite party has ceased production of this model.  There is no merit in the appeal.

          In the result the appeal fails and is accordingly dismissed but without costs.

                   SRI.K.CHANDRADAS NADAR  : JUDICIAL MEMBER

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