IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 23rd day of September, 2011.
Present : Sri. Jacob Stephen (President).
N. Premkumar (Member)
C.C. No. 130/2010 (Filed on 27.09.2010)
Between:
Sasi. C.K.,
Chozhiyampara Veedu,
Kuttoor.P.O.,
Thiruvalla – 689 106. ..... Complainant
And:
1. Mammen George,
Yemgee Yobyke,
Mallappally Road,
Near TMM Hospital,
Thiruvalla – 689 101.
2. Electrotherm India Ltd.,
72, Palodia (Via. Thalte),
Ahmedabad – 302 115,
Gujarat.
3. Kepha Yobikes, 1st Mile,
K.P. Road,
Kayamkulam.
(By Adv. Sunitha. K.K)
4. The Windsor Bankers,
Thiruvalla – 1.1 ..... Opposite parties.
O R D E R
Sri. N. Premkumar (Member):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. Facts of the case in brief are as follows: On seeing the advertisement of opposite parties 1 and 2, complainant approached the first opposite party and enquired the details of Yo Byke. First opposite party assured that Yo Speed model is good for long-term use. Believing their words, complainant decided to purchase the same. The said model has one-year warranty. They also offered that, if any damage within one year, they replace it and after one year they will repair the same. They also informed that the price of the vehicle is Rs. 40,000 and complainant has to pay Rs. 18,000 and the remaining amount of Rs. 22,000 will be arranged from 4th opposite party as loan and for that cheque leaves, stamp paper and identity card has to be given.
3. On 16.10.2009, complainant approached the first opposite party’s office and produced the requisite document and paid the amount they asked and signed the documents. After that, they delivered the Yo Speed model vehicle. When it is used, he find various defects and approached the first opposite party for repairing. They repaired the defect and returned. Thereafter also, the vehicle became faulty and again approached the first opposite party. They advised to approach the second opposite party or the third opposite party for replacement of the vehicle. The complainant approached them, but they failed either to rectify it or to replace it. Therefore, complainant sent a notice on 16.07.2010 to second opposite party. On 28.07.2010 they issued a reply notice stating that their Engineer Binse Mathew will inspect the vehicle. But he has not turned up. Complainant telephoned him, but he replied in an irresponsible manner. While so, first opposite party closed his show room and 4th opposite party is making trouble by threatening to take away the vehicle. But the vehicle is not in a proper running condition. Hence this complaint for getting back the paid amount with interest from the opposite parties 1 to 3 along with compensation and restraining the 4th opposite party from initiating any proceedings against the complainant.
4. First opposite party is exparte.
5. Opposite parties 2 and 3 entered appearance and filed separate versions.
6. According to second opposite party, they are the leading manufacturer of battery operated vehicles and are providing every possible care for quality in respect of materials and workmanship. All the vehicles are tested at the quality control department at the factory before supply. At the time of purchase, complainant was given opportunity for test ride and pre-delivery inspection. Complainant also inspected and tested the vehicle before purchase and therefore there is no question of any manufacturing defects. Moreover, at the time of purchase of the vehicle, the complainant was given all operating guidelines.
7. They admit that complainant purchased Yo Bike on 16.10.2009. The first opposite party has illegally terminated the dealership with them and closed down his business. Therefore, at the relevant point of time, the complainant has not availed free services. They denied the allegation that the complainant has not provided free services. He has not made any complaint to that effect to the company. If complainant himself has not availed free services, he has violated the terms and conditions of warranty policy. Complainant has not pointed out the nature of defect. Complainant has availed only 2 free services and thereafter he never brought the vehicle for availing services.
8. Complainant has not approached the company for his grievances till the date of filing of this complaint. The company was ready and willing to provide services to the complainant. After receiving notice from this Forum, second opposite party’s Service Engineer informed him that the company is ready and willing to inspect the defect and cure it. But the complainant has not accepted the suggestion of the company. Moreover, as per the warranty terms and conditions given at page Nos. 22 & 23, warranty shall not apply under the heading No.4 as shown below:
J- Any vehicle, which has not used in accordance with the
operating instructions prescribed in the Owners’ Manual.
K- Any vehicle, which has not received service inspections,
prescribed in the Owners’ Manual during the warranty terms.
9. Moreover, as per Owners’ Manual, heading No.7 under point No.’b’. It is the responsibility of the owner to perform all the service inspections specified in the Owners’ Manual at his own expenses.
10. They denied the allegation that Service Engineer given irresponsible reply to the complainant. Service Engineer had made efforts to resolve the complaints. But the complainant has deliberately not availed the free/paid services with the intention to return the vehicle. Moreover, Service Engineer is ready to inspect the vehicle but complainant has not co-operated. According to them, complainant is still using the vehicle. If any defect they are willing to give satisfactory service.
11. Complainant has not produced any evidence to show that the vehicle has manufacturing defect. He has not sought any expert evidence. It is for the complainant to prove that there is any defect much less any manufacturing defect in the vehicle in question. In fact there is no manufacturing defect much less defect of any kind. Therefore they canvassed for the dismissal of the complaint.
12. 3rd opposite party’s contention is that they are not a necessary party in this complaint. They are the service centre of the 2nd opposite party. Complainant never approached them. The disputed vehicle was purchased from the 1st opposite party. Complainant repaired the vehicle and it is in good condition and has been using for the last years. The only problem to the complainant is the remittance of the vehicle loan. Complainant’s allegations are against other opposite parties and 3rd opposite party has no role in it. Complainant is not entitled to get any relief from them. Therefore 3rd opposite party canvassed for the dismissal of the complaint against them with cost.
13. 4th opposite party is also exparte.
14. From the above pleadings, the following points are raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs & Costs?
15. Evidence of this complaint consists of the oral evidence as PW1 and Exts.A1 to A6. Opposite parties 2 and 3 had not adduced any oral or documentary evidence. But they have cross-examined the complainant. After the closure of evidence, both parties were heard.
16. Point Nos. 1 to 3:- In order to prove the complainant’s case, complainant produced proof affidavit in lieu of his chief examination along with six documents. On the basis of the proof affidavit complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A6. Ext.A1 is the invoice of the vehicle issued by 1st opposite party. Ext.A2 is the copy of tax token of the vehicle issued by the Motor Vehicles Department. Ext.A3 is the copy of R.C. Book of the vehicle. Ext.A4 is the owner’s manual issued by the opposite parties 1 and 2. Ext.A5 is the copy of lawyer’s notice issued to 2nd opposite party. Ext.A6 is the reply of Ext.A5.
17. On the basis of the contention and averment of the parties, we have perused the entire materials on record. Complainant’s case is that the vehicle manufactured by the second opposite party, purchased from first opposite party is defective. Opposite parties 1 to 3 neither rectified the defect nor replaced it. Contentions of opposite parties 2 and 3 is that complainant has violated the terms and condition in the manual issued to him. Though they are ready and willing to provide service, complainant neither availed the service nor informed any defect.
18. On a perusal of records it is revealed that the vehicle has been purchased from the 1st opposite party. At that time 1st opposite party has been functioning as the authorised dealer of 2nd opposite party. Later 1st opposite party terminated the dealership. This fact is also admitted by the 2nd opposite party in their version. Evidence on record does not reveal that 2nd opposite party had made alternative arrangements for the customers of 1st opposite party including the complainant.
19. According to complainant, the vehicle has been defective even after the repairs done by 1st opposite party. Thereafter 1st opposite party stopped his business. But the 2nd opposite party had not made any alternate arrangements. Ext.A5 shows that an advocate notice has been served to 2nd opposite party narrating the defect of the vehicle. Ext.A6 shows that they received the notice and offered service. Materials on record does not disclose that the 2nd opposite party has taken any step to repair the defect or to make any alternative arrangements for attending the complaints of first opposite party’s customers.
20. Opposite parties neither adduced any evidence to disprove the complainant’s case nor proved their own case. Therefore, complainant’s case against opposite parties 1 and 2 stands proved as unchallenged. It is the boundan duty of opposite parties 1 and 2 to repair the vehicle as per Ext.A4. Accepting Ext.A1 amount and not providing service as assured is unjust, unfair and against the spirit of consumer justice. It is a clear deficiency of service from the part of opposite parties 1 and 2.
21. Since complainant has not adduced any expert evidence to prove the allegations of manufacturing defect, hence the replacement claim of the complainant is not allowable. Hence complaint can be allowed in part. 1st opposite party was the authorised dealer of 2nd opposite party, who had also closed his shop. So the 2nd opposite party is liable for the deficiency of service of the 1st opposite party. At the same time, the complainant has not brought his vehicle to 3rd opposite party. It is clear from his deposition, which is as follows:- “1st opposite party AhcpsS service centre close sNbvXpIgnªv aäv authorised service centre- hn sImp t]mbn«nÓ. So we cannot find any deficiency of service against opposite party 3. Complainant is bound to pay the loan amount to opposite party 4 as per the loan agreement and the complainant has not adduced any evidence for any deficiency of service from opposite party 4.
22. In the result, this complaint is allowed in part as follows:-
(i) The 2nd opposite party is directed to take necessary steps for repairing the complaints of the vehicle in question at 3rd opposite party’s service centre within 15 days from the date of receipt of this order at the cost of 2nd opposite party.
(ii) The complainant is directed to produce his vehicle at 3rd opposite party’s service centre within 15 days from the date of receipt of this order.
(iii) 3rd opposite party is directed to return the vehicle
to the complainant after proper repairs within 10
days from the date of getting the vehicle without
collecting any charges from the complainant and
the third opposite party is at liberty to collect the
repairing charges from the second opposite party.
(iv) Second opposite party is further directed to pay an amount of `1,500 (Rupees One Thousand Five hundred only) as compensation and ` 500 (Rupees Five hundred only) as cost to the complainant within 15 days from the date of receipt of this order.
(v) The second opposite party is at liberty to realise the repairing charges, compensation and cost ordered herein above from the first opposite party.
(vi) No relief allowed against 4th opposite party.
(vii) In case of non-compliance of this order by second opposite party, complainant is allowed to realise the cost of the vehicle from second opposite party with 10% interest per annum from today till the whole realisation.
Declared in the Open Forum on this the 23rd day of September, 2011.
N. Premkumar,
(Member)
Sri. Jacob Stephen (President) :
Appendix:
Witness examined on the side of the complainant:
PW1 : Sasi. C.K.
Exhibits marked on the side of the complainant:
A1 : Invoice of the vehicle issued by 1st opposite party.
A2 : Copy of tax token of the vehicle issued by the Motor
Vehicle Department.
A3 : Copy of R.C. Book of the vehicle.
A4 : Owner’s manual issued by the opposite parties 1 and 2.
A5 : Copy of lawyer’s notice issued to 2nd opposite party.
A6 : Reply letter of Ext.A5.
Witness examined on the side of the opposite parties:
Exhibits marked on the side of the opposite parties:
(By Order)
Senior Superintendent
Copy to:- (1) Sasi. C.K., Chozhiyampara Veedu, Kuttoor.P.O.,
Thiruvalla – 689 106.
(2) Mammen George,Yemgee Yobyke, Mallappally Road,
Near TMM Hospital, Thiruvalla – 689 101.
(3) Electrotherm India Ltd., 72, Palodia (Via. Thalte),
Ahmedabad – 302 115, Gujarat.
(4) Kepha Yobikes, 1st Mile, K.P. Road, Kayamkulam.
(5) The Windsor Bankers, Thiruvalla – 1.
(6) The Stock File.
