BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 13/01/2011

Date of Order : 31/01/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

 

C.C. No. 25/2011

Between

And

O R D E R

C.K. Lekhamma, Member.

1. The brief facts of the complainant's case are as follows :

The complainant purchased an Ultra Electric Velocity Scooter on 01-04-2008 from the 1^st opposite party by paying a sum of Rs. 34,000/-. The 2^nd opposite party is the manufacturer of the vehicle. From the date of its purchase itself, the vehicle had many problems. The repair works of the scooter will be done only by the mechanics of the 1^st opposite party, the complainant has to heavily depend upon the 1^st opposite party for getting the defects cured. On 16-09-2010, the vehicle became break down and the same was entrusted with the 1^st opposite party for the repair they assured to deliver the same on 18-09-2010. But did not do so and the complainant was forced to file a complaint before the Thevara Police Station on 06-10-2010. Due to the interference of the police authorities, the vehicle was delivered on 12-10-2010 and collected repairing charges. But the defects were persisted. Thereafter, on 28-10-2010 its charger had replaced and on 27-11-2010, sensor of the vehicle had replaced. All those occasions the opposite parties have collected repairing charges. Even thereafter that the vehicle was not in proper condition to use. The complainant brought the matter to the notice of the 1^st opposite party and the 1^st opposite party asked the complainant to bring the vehicle to his workshop at Thevara. The complainant entrusted with the 1^st opposite party and till this date there is no positive action from the side of the 1^st opposite party. Till the date, the 1^st opposite party had collected nearly Rs. 27,000/- from the complainant for curing the defect of the vehicle. The complainant also informed the 2^nd opposite party, the manufacturer regarding the defects of the vehicle through e-mail. But there was no response. The action of the opposite parties amounts to deficiency in service and also amounts to unfair trade practice. The complainant is a heart patient and he preferred the said vehicle because the same can be used without any effort. The vehicle purchased by the complainant is not in a position to be used and the opposite parties are not even cared to repair the same and they are not even cared to hear and consider the grievance of the complainant. Hence the complainant approaches this Forum for the following reliefs against the opposite parties :-

1. To direct the opposite parties to pay a sum of Rs. 34,000/- to the complainant being the price of the vehicle with interest.

2. To direct the opposite parties to pay a sum of Rs. 27,000/- collected from the complainant towards the repair charges together with compensation for mental agony and litigation costs.

2. The ^st opposite party filed version stating as follows :

The complainant has been used the vehicle for the period of one year and more satisfactorily and without any complaint. The complaints if any of the said vehicle that occurred “after the prescribed period of warranty, then the 1^st opposite party can cure the same only with cost incurred. In such context, the customer himself is duty bound to pay the cost of the parts to be replaced. Eventhen so many times, the 1^st opposite party had done free service to the said vehicle. The prime parts of an electric scooter such as electric sensor, shaft electric controller will be break down only over load or forcibly pumping of water for washing or by such irresponsible and violative usage by the user of electric scooter. For the contra-usage of the electric scooter by keeping away from the guide lines in the owner's manual and no positive control over the scooter after the purchase. Instead, the user only has to be more vigilant. There is no deficiency of service or unfair trade practice on the part of the 1^st opposite party. The complaint as he is using the vehicle even today and is with his custody on servicing condition.

3. Defense of the 2^nd opposite party :

It is clearly stated in the owner's manual that for 365 days or 12000 kms. from the date purchase of the vehicle whichever occur earlier to the first owner is the strict period of warranty. The alleged complaints if any are occurred only after the “period of warranty”. There is no element of manufacturing defect for the satisfied usage of the scooter for the long 18 months and more. It is the legal duty of the complainant to obey and comply with the strict guidelines contemplated in the owner's manual. The non-complying and violative acts of the said direction will cause adverse effect. There is no deficiency of service or manufacturing defect. The complainant has no locus-standi to file this complaint against this opposite party, since he is even now using the said scooter and same is with his custody in servicing condition.

4. The complainant and the opposite parties appeared through counsel. The complainant adduced only documentary evidence and Exts. A1 to A11 were marked on his side. The witness for the 1^st opposite party was examined as PW1. Ext. B1 was marked on their side. Neither oral nor documentary evidence was adduced by the 2^nd opposite party. Heard the respective counsel.

5. The points that emerged for consideration are as follows :

1. Whether the complainant is entitled to get refund of the price of the disputed vehicle?

2. Whether the opposite parties are liable to repair or replace the disputed vehicle?

3. Compensation and costs, if any?

6. Point Nos. i. to iii. :- The case of the complainant is that the disputed vehicle showed many defects. From 2009 onwards, the vehicle is not in a position to use. On 16-09-2010, 12-10-2010, 28-10-2010 and on 27-11-2010, the vehicle had repaired and collected repairing charges from the complainant by the 1^st opposite party.

7. According to the opposite parties, the complainant used the vehicle more than one year without any complaint and the complainant has raised the allegations only after the period of warranty. It is stated that the complainant is contractually bound to pay the repairing charges and costs of the replaced parts after the warranty period and the defects were occurred only due to the improper use of the vehicle by the complainant. It is also stated that the complainant is using the vehicle now and the same is under his custody.

8. There is no dispute as to the purchase of the vehicle and its price. Ext. A1 is the copy of R.C. Book of the vehicle concerned, Ext. A2 is the brochure and Ext. A3 and A10 are the retail invoices of the battery, charger, sensor etc. Ext. A4 series and A9 are the receipt vouchers, Ext. A5 is the Tax invoice of the battery and Ext. A6 is the copy of police complaint dated 06-10-2010. Ext. A7 is the copy of E-mail dated 11-02-2009 to the 2^nd opposite party and Ext. A8 is the job cards.

9. As per Ext. B1 owner's manual warranty has been provided to the vehicle for 365 days or 12000 kms. from the date of sale of vehicle whichever occurs earlier. And the battery has a warranty of 180 days or 6000 kms. from the date of sale whichever occurs earlier. On a perusal of Ext. A3, A4 and A5 documents it is evident that the battery of the vehicle had replaced after the warranty period. And in the case of the replaced parts, which were also replaced after one year from the date of purchase. In that case, the complainant is bound to pay service charges and cost of the parts. Hence the complainant is not entitled to get the service charge as well as the cost of the parts. But as per the documents, it can be seen that on different occasions, the different parts of the vehicle had been replaced by the 1^st opposite party. According to the complainant, even after the repair of the vehicle it is not in a position to ply the same. The opposite parties are duty bound to repair the vehicle even after the warranty period. There is no evidence before us to show that the complainant had used the disputed vehicle against the instructions in Ext. B1 owner's manual. Hence, we are of the considered opinion that the opposite parties are liable to rectify the defect of the disputed vehicle free of cost, if the opposite parties are not in a position to cure the defects of the vehicle the 2^nd opposite party is liable to replace the same with a new one.

10. The complainant contended that the disputed scooter was entrusted with the 1^st opposite party for repairing and the same is in their custody as of now. The opposite parties contended in their version as well as in the proof affidavit of DW1 that the vehicle is in the custody of the complainant. In the absence of any evidence to the contrary, we are of the view that the complainant is in possession of the scooter under dispute.

11. As per the evidence, it appears that the complainant is deprived of using the vehicle for quite some time. Naturally he has had to suffer lot of inconveniences and mental agony. Hence he is entitled to get compensation from the opposite parties. We fix the compensation at Rs. 5,000/-, we are not ordering costs of the proceedings, since we have already ordered compensation.

12. In the result, we partly allow the complaint and direct as follows :

1. The opposite parties shall jointly and severally forthwith rectify the defects of the disputed vehicle on free of cost and provide fresh warranty for 6 months or in the alternative, the 2^nd opposite party shall replace the defective vehicle with a new one of the same description with fresh warranty in that event, the complainant shall return the vehicle under dispute to the opposite parties.

2. The opposite parties shall jointly and severally pay Rs. 5,000/- towards compensation to the complainant simultaneously. The opposite parties are at liberty to choose either of the above directions.

3. The complainant is directed to produce the vehicle before the 1^st opposite party for its repairs.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 31^st day of January 2012

Sd/- C.K. Lekhamma, Member.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

/Forwarded By Order/

Senior Superintendent

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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