Complaint filed on: 02/08/2023

                                                      Disposed on: 18/03/2024

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

DATED THIS THE  18^th DAY OF MARCH 2024

//:PRESENT://

SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT

SRI.KUMARA.N, B.Sc. (Agri), LL.B., MBA., MEMBER

SMT.NIVEDITA RAVISH, B.A., LL.B.(Spl)., LADY MEMBER

//:CONSUMER COMPLAINT NO. 111/2023:// 

Mr. G.Nazeer Ahmed Khan

S/o Late Abdul Gaffar Khan,

Daar A1 Quloos, 12^th A cross,

P. H. Colony, Tumakuru-572 101.

Karnataka.

……….Complainant

(By Sri. R.N.Venkatachalaiah, Advocate)

V/s

1.       Mrs. Deepa Arun

          NK TEJO RATHAM (DEALER)

          Amarapura Road, Jyothinagar,

          SIRA -572 137.

2.       Mr.Prateek, Manager, NK TEJO RATHAM

          Opposite Govt. District Hospital,

          B.H.Road, Tumakuru-572 102.

3.       Chief Operating Officer,

          Kinetic Green Energy & Power

          Solutions Ltd., Kinetic Innovation Park,

          D-1, block, Plot No.18/2, MIDC, Chinchwad,

          PUNE – 411 019.

……….Opposite Party/s

(By Sri. Niranjan .R, Advocate)

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BY SMT.NIVEDITA RAVISH –  LADY MEMBER

          This complaint is filed by the complainant under section 35 of Consumer Protection Act, 2019 against the Opposite Parties to order to make repayment of the entire amount of Rs.1,18,012-00 or to replace with new vehicle.  Further, prayed to award amount towards mental agony and cost as deems fit.

2.       The Opposite Party No.1 is the authorized agency [NK TEJORATHAM] at Sira [hereinafter called as OP No.1], The Opposite Party No.2 is the branch of the OP No.1 [hereinafter called as OP No.2] and Opposite Party No.3 is the manufacturer of the vehicle purchased by the complainant [hereinafter called as OP No.3]

3.       The case of the complainant is that the complainant purchased one Scooter Kinetic green energy model FLEX one Red Colour Scooter with Engine No.LKMNKOO58125, Chassis No.VIN.No.m2tlk1e1n1k108487 by paying Rs.1,18,012-00 on 06.01.2023.  The complainant took the delivery of the said vehicle on 07.01.2023 after completing the vehicle registration formalities, the said vehicle was registered at Tumakuru RTO under Registration No.KA:06 HP 6755.  After taking the delivery of the said vehicle, the complainant drives the vehicle for 2 kilometers and found there were multiple problems in the vehicle.  The scooter is not at all practical to ride.  Immediately, the complainant took back the vehicle to OP No.2 and explained the problem to one Mr.Prateek, Manager of OP No.2.  The complainant submitted that there is no service centre or workshop in the show room and they never issued job card.  Further after two days, the dealer called the complainant on 11.01.2023and told that there is a problem in the controller and the show room people have informed the Kinetic Company to FIX the problem at the earliest.  The complainant sent detailed e-mail regarding the problem to the OP No.3 and 1, but both have not replied.  Then the complainant complained to OP No.2 on 11.02.2023 though after test driving by the complainant, the scooter found with same problems.  The complainant informed to service engineer about the problem and the service Engineer told that to take the vehicle and ride for 2-3 days and if the problem continues, return the vehicle.  Further complainant submitted that though after take back the vehicle, the complainant found with same problem in the vehicle and the same was informed to Company through e-mail and also informed through e-mail to Service Engineer Mr.Arun.  On 02.03.2023, OP No.2 called the complainant to bring vehicle for service; complainant take the vehicle to show room, where there is no service centre or workshop and when the complainant handed over the vehicle for second service, the showroom people did not issued any job card.  Even after second service, problem remains same and after several complaints, the defects in the vehicle have not been repaired.  Hence, this complaint. 

4.       After service of notice by this Commission, the OP No.3 remained absent.  The OP Nos. 1 & 2 were appeared before this Commission through their common counsel and filed their common version.  In the version, the OP Nos. 1 & 2 admitted that the complainant purchased the scooter from OP No.2 on 06.01.2023 by paying Rs.1,18,012.00 and same was delivered to the complainant on 07.01.2023 and the said vehicle was registered at Tumakuru.  Further, the OP Nos. 1 & 2 admitted that on 11.01.2023 complainant had bought the vehicle and denied all other allegations made by the complainant as false.  OP Nos. 1 & 2 are submitted that the problems in the vehicle are not correct and complainant has no knowledge about running of such scooter.  Further, the OP Nos. 1 & 2 submitted that the complainant will be issued free service coupons along with the delivery of the vehicle and accordingly, on 04.03.2023 1^st service was done and on 02.05.2023, the 2^nd service is also done.  Further, OP Nos. 1 & 2 are submitted that the complainant gave a complaint to the senior citizen cell, Tumakuru, who sent their representative Mr.Chalapathy and after taking test drive twice, has stated that there were no problems with the vehicle.  The odometer was replaced, even though there was no problem in it and that was done during the 3^rd service in the first week of July-2023.  It is further submitted that there is no defect as stated by the complainant in the vehicle and complainant’s own fault in not using/running the vehicle holding the brakes which is totally wrong on complainant’s part.  Hence, the OP Nos. 1 & 2 prays for dismissal of the complaint against them with exemplary cost.      

5.       The complainant has filed his affidavit evidence with twelve documents, which are marked as Ex.C1 to C12.  OP No.2 has filed his affidavit evidence with fifteen documents which are marked as Ex.R1 to R15.  But affidavit of the OP No.2 was not notarized.  The OP No.1 has adopted the affidavit evidence by filing a memo. 

6.       Heard the counsel for the complainant and counsel for OP Nos. 1 & 2 and peruse the written arguments filed by OP Nos. 1 & 2 and the points that would arise for our determination as follows:-

1. Whether complainant proves the deficiency of service on the part of OPs?

2. Is complainant entitled to the relief sought for?

7.         Our findings on the aforesaid points are as under:

Point No.1: In the Negative

Point No.2: As per the final order for the following

//: R E A S O N S ://

POINT NOS. (1) & (2):-

8.       The counsel for the complainant has argued that the complainant has purchased one Kinetic green energy model FLEX, Red colour scooter from OP No.2 on 06.01.2023 by paying Rs.1,18,012.00 with engine No.LKMNK005825, Chassis No./VIN No.M2TLK1E11K108487. The Ex.C1/Original invoice No.NKJAN001 produced by the complainant reflecting the all details as submitted by complainant counsel. The OP Nos. 1 & 2 are admitted about purchasing of said scooter by the complainant on 06.01.2023.  Further, Ex.C2/notarized copy of the registration card produced by the complainant is establishing that the said vehicle was registered at Tumakuru RTO under Registration No.KA:06:HP:6755 on 07.01.2023.  Further, counsel for the complainant has argued that after taking the delivery of the said vehicle, the complainant drive the vehicle for 2 kilometers and found there are multiple problems in the vehicle and those problems are as follows:

1. The accelerator is very sensitive to touch,

2. It is impossible to notice this at different speeds while riding on smooth tarmac surface and this problem is more persistent when riding at 20-40 kmph, 
3. While parked on slope, for the scooter to move forward and complainant need to release the brake [both front and back] and cannot accelerate while holding the brakes.  If brakes are disengaged, the scooter will slide down the slope without moving forward and there is no hill hold assist feature in the scooter,

4. While taking a tight U turn, the scooter starts to jerk and won’t move forward with ease.

Further, counsel for complainant argued that the scooter is not at all practical to ride.  To prove all the above problems, complainant produced Ex.C4 to Ex.C9/copy of the e-mail conversation in different dates with OP Nos.1, 2, 3 and their officers.  But these e-mail conversations does not proves that the vehicle having with all the above problems stated by the complainant.  Further, counsel for the complainant has contended that immediately the complainant took back the vehicle to OP No.2 and explained about the problems.  There is no service centre or work shop in the show room and they never issued a JOB CARD.  But the complainant himself produced the Ex.C10/copy of instruction manual and warranty card, which includes details about service intervals and coupons.  Further, complainant produced Ex.C11/copy of the free service coupon No.FXBB-00816.  These Ex.C10 and C11 are establishes that the OP No.2 is having service centre. 

9.       Further, counsel for the complainant has contended that the complainant sent detailed e-mail regarding the problem to OP No.3 and OP No.2, but both were did not have any reply to the complainant e-mail.  The complainant has not produced any e-mail conversation for the month of January 2023.  The complainant has produced the e-mail conversations from 7^th February 2023 to 14^th February 2023 i.e. Ex.C4 to Ex.C9 and those exhibit C4 to C9 are reflecting that the project manager, area service manager of OP No.3 have given reply to complaint.   Ex.C7 of Feb. 14 2023 is reflecting that the OP No.2 has stated that there is “no issue with the controller and the vehicle can be driven”.  Further, counsel for complainant has argued that on 02.03.2023, OP No.2 has called the complainant to bring the vehicle for service and complainant took the vehicle to the show room and there is no service centre or workshop.  But the complainant has not produced any document or evidence to establish that there is no service centre or workshop in the show room of the OP No.2.  Further, the complainant has made allegation that OP No.2 has not issued any job card in the time of second service.  In contrary, the OP No.2 has produced the Ex.R13 /copy of coupon for 1^st service and Ex.R14/copy of coupon for 2^nd service.  Ex.R13 reflecting the date of 1^st service as 04.03.2023 and all details of vehicle.  Ex.R14 reflecting that the date of 2^nd service as 02.05.2023 and all details of vehicle.  The same Ex.R13 and R14 are not objected by the complainant.  Further counsel for the complainant has submitted that the complainant gave a complaint to the Senior Citizen Cell, Tumkur, they sent their representative Mr.Chalapathy and Mr.Chalapathy took test drive two times and noticed all the problems.  But the complainant has failed to produce any such report by the said Mr.Chalapathy and not filed an affidavit of Mr.Chalapathy as stating about the problems in the said vehicle.  

10.     In contrary, the counsel for the OP has argued that though giving the proper instructions, the complainant has no knowledge about running of such scooter.  Further contended that the third problem stated by the complainant itself shows that complainant is not properly using the scooter as the Major complaint is that the complainant cannot accelerate while holding the brakes.  Ex.C10/copy of the instruction manual and warranty card, produced by complainant himself is explaining about safety and cautions, steps to charge the vehicle, precautionary points for charger, details of steering cum ignition lock, speedometer details, maintenance details of trouble shooting, battery do’s and don’ts, warranty of Flex etc.  Ex.R3/copy of e-mail conversations produced by OP Nos. 1 & 2 is establishing that the OP No.3 has given instruction how to ride the electrical scooter smooth and safety.  Further, counsel for the OP Nos. 1 & 2 has argued that the OP No.2 has been given free service to the complainant as per warranty and attended with the problems which are complained by the complainant, but OP No.2 has not found any problems which are complained by the complainant.  Ex.R13, Ex.R14, Ex.R15 produced by the OP Nos. 1 & 2 are establishes that OP No.2 has given free service to the complainant and attended the problems complained by the complainant. Ex.R15 is showing “complaint attended on 09.02.2023, resolved on 14.03.2023.  Further reflecting in the column of problem reported as vehicle jumping and jerking” and details of job carried out column is reflecting as “As per customer complaint replaced the hand throttle assembly”.  The same Ex.R13, Ex.R14 andEx.R15 are not objected by the complainant.  As per the warranty the OP No.2 has given the free service to the complainant.  Hence, we have not found any deficiency in service on the part of the OP Nos. 1 & 2.

11.     Further, the counsel for the complainant submitted that there is multiple problems in the vehicle, even after several complaints the defects in the vehicle not been repaired and scooter is not at all practical to ride.  But counsel for the OP Nos. 1 & 2 are submitted that OP No.2 has serviced the vehicle as per the warranty and OP No.2 has not found any multiple problems as stated by the complainant.  Hence, burden of proof lies on the complainant to prove the defects in the vehicle.  The Hon’ble National Commission in the case of TELCO V/s Hardip Singh and Anr. II (2011) CPJ 236(NC) held that, the onus to prove manufacturing defect lies with complainant.  Further, the Hon’ble National Commission, in the case of M/s T and T Motors Ltd. and Anr. V/s Pawan Gupta on 29^th December, 2023, it is held that “deficiency in service or selling a defective vehicle, lack substantiation and compliance with section 13 of the Act.  Without expert opinion, such conclusions remain speculative and therefore, cannot be up-held”.  But complainant has failed to take any steps to file an expert opinion to prove the multiple defects in the scooter purchased from the OP No.1 & 2 and manufactured by OP No.3  Further, the complainant has not produced any document or evidence to prove the multiple defects in the scooter.  Therefore, we are helpless to believe that there is a multiple problems in the scooter purchased by the complainant from OP Nos. 1 & 2 and manufactured by OP No.3.  Hence, we have not found any deficiency in service on the part of the OP Nos. 1 to 3 and the complaint is liable to be dismissed against the OP Nos. 1 to 3.  Accordingly, we proceed to pass the following:-         

//:ORDER://

The complaint filed by the complainant is dismissed without costs.

Furnish copy of this order to both parties at free of costs.