Haryana

Panchkula

CC/55/2019

AMRIT LAL. - Complainant(s)

Versus

M/S OKINAWA AUTOTECH PVT.LTD. - Opp.Party(s)

COMPLAINANT IN PERSON.

10 Feb 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.

                                                     

Consumer Complaint No	:	55 of 2019
Date of Institution	:	21.01.2019
Date of Decision	:	10.02.2020

Amrit Lal S/o Sh. Harswroop, R/o previous address-House No.1120, SF, Sector-28, Panchkula, Haryana-134116 & Present Address- House No.1105, GF, Sector-28, Panchkula, Haryana-134116.

                                                                                ….Complainant

Versus

1.  M/s Okinawa Autotech Pvt. Ltd., Unit No.119, 1^st Floor, JMD Megapolis, Sector-48, Sohna Road, Gurugram, Haryana- 122018.

2.  M/s Narang Automobiles, Plot No.153, Industrial Area, Phase-2, Panchkula, Haryana-134109.

….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:              Mr.Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:   Complainant in person. 

                        Sh. Y.P.Sharma, Advocate for the Ops No.1 & 2.

(Defence of Ops No.1 & 2 already struck off vide order dated 30.04.2019).

 

ORDER

(Per Dr. Sushma Garg, Member)

1.             The brief facts of the present complaint are that the complainant had purchased a two wheeler electric motor bike i.e. RIDGE MATT RED, bearing Chassis No.M5WBDFBBLH1103181 & Engine No. BDF103682 having fitted with AMTEK made 5 batteries bearing no.MN2H-KG-112313, KG-112149, KG-112150, KG112151, KG-112152 amounting of Rs.42,000 on 29.01.2018. The said vehicle had given an average performance for the first 03 months with small and petty problems and the complainant kept informing the executives of the OP No.2 regarding the same. But in the very first week of April, 2018, the complainant faced problem in the controller and Op No.2 had replaced the controller of the vehicle on 06.04.2018 vide job card no.2. But the said technical issue did not get removed and again the OP No.2 had to replace the controller on 19.04.2018. Thereafter, the complainant kept using the vehicle in question, but again in the month of August, 2018, the vehicle started giving problems again. The suspension and shocker system of the vehicle were not absorbing the jerks and the ride was not as smooth as guaranteed and claimed by the OPs.  The motor, which is just like engine of the vehicle, had also started missing and while moving, the same had started giving jerks. So, the complainant had no option but to take the vehicle in the office of OP No.2 on 01.09.2018 and OP No.2 replaced the motor of the vehicle on 01.09.2018. On 14.11.2018, the OP No.2 had serviced the vehicle and the staff of the OP No.2 had inter change all the batteries with each other by changing their space. But instead of the condition of the vehicle getting better the batteries of the vehicle started giving a very low mileage. So, the complainant again took the vehicle to OP No.2 on 01.12.2018 and same was inspected by the executive of OP No.2, who made a report that out of total 5 batteries of the vehicle, 04 batteries were intact but one battery was providing low Ah. So, they replaced the faulty battery on 01.12.2018. The complainant again took the vehicle to the OP No.2 on 24.12.2018, where it was reported that out of total 5 batteries of the vehicle, 04 batteries got bulged and could not release the required Ah, due to which the mileage of the vehicle was very low. The complainant requested the OP No.2 to replace the faulty batteries as without which the mileage of the vehicle could not be improved but instead of sorting out the problem of the complainant, vide its communication dated 29.12.2018, the OP No.2 had informed the complainant that as per the instructions of the company i.e. OP No.1, the replacement of the batteries could not be done as the same had been got bulged. By selling a faulty product, not removing the technical problems of the vehicle, not fulfilling their assurance, the OPs had defrauded the complainant. There is great negligence and deficiency in service on the part of OPs, due to which the complainant suffered undue hardship, mental agony, physical as well as financial harassment. Hence, the present complaint.

2.             Upon notice, the OPs have appeared to contest the complaint but they did not file their written statement despite availing several opportunities including the last opportunity. Therefore, the defence of OPs was stuck off by this Forum vide its order dated 30.04.2019.

3.             To prove his case, the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-5 in evidence and closed the evidence by making a separate statement.

4.             We have heard the complainant and the counsel for the OPs, considered the written arguments filed by the learned counsel for OPs and gone through the record minutely and carefully.

5.             It is evident from the facts that the complainant has purchased a two wheeler electric motor bike i.e. RIDGE MATT RED, bearing Chassis No. M5WBDFBBLH1103181 & Engine No.BDF103682 having fitted with AMTEK made 5 batteries bearing no.MN2H-KG-112313, KG-112149, KG-112150, KG-112151, KG-112152   on 29.01.2018 against the consideration amount of Rs.42,000/- from OP No.2. The complainant has alleged that the said vehicle was faulty and had given only average performance in initial months; hence, the complainant had to go for repair repeatedly to the OP No.2 within a very short period of one year/warranty period. It is evident from Annexure C-3 that Op has replaced controller on 06.04.2018 and 19.04.2018 within three months of it purchase only. Thereafter, OP No.2 replaced the motor of the vehicle on 01.09.2018 (Annexure C-3) within eight months of purchase. On 01.12.2018, OP changed the one faulty/defective battery out of five batteries and the vehicle has started providing low mileage instead of improving. On 24.12.2018, complainant came to know that all the remaining four batteries had bulged/damaged. However, OPs refused to replace the same.

6.             During warranty period, the vehicle in question got out of order on various occasions(Annexure C-3),  the details are reproduced are as under:-

Sr. No	Date of repair	KM Covered	Days Covered	Job card no.	Job Details	Service dealer
1.	06.4.18	1825	68	2	Controller replaced
2.	19.4.18	2115	81	3	-Do-
3.	07.9.18	8047	215	-	Shocker replaced motor replaced

 

7.             The above sequence of events shows that the vehicle was defective right from the date of its purchase. The learned counsel for OP has relied upon the following warranty clause:-

        “Warranty on proprietary items of Indian  Origin  proprietary selected items like tyres & tubes, and batteries are warranted by their respective Indian manufacturers and should be claimed on them directly  by the customer. Okinawa Auto tech will not be liable in any manner to replace them though their dealers will give full assistance in preferring such claim on their Indian manufacturers”.

                He has submitted that as per the above warranty clause, the Op was not liable in any manner to replace the batteries rather the complainant should have directly contacted the manufacturer of the barriers. The learned counsel further submitted that performance of batteries was based on various factors. He relied upon the clause ‘e’ of warranty booklet which reads as under:-

        “Battery much be kept as cool as possible to ensure the long life and better performance. Batteries become abnormally hot & start bulging if vehicle is driven under overload for long distance, is charged under sun or charged immediately after driving or the charger is kept ON for long period of time even when the battery is fully charged”.

                He has further submitted that complainant was fully satisfied with repairs and replacements on his vehicle during warranty period as he had not lodged any complaint for any deficiency in service on any part of OPs.

8.             We have considered the above contentions of the learned counsel for the OP so far as the reliance on warranty clause relating to the case are concerned. We are of the view that the same does not absolve the OPs (manufacturer & dealer) to manufacture and sell goods of merchantable quality. The batteries are the part and parcel of the said vehicle which has been sold to the complainant as integral part of the vehicle. It is not the case of the OP that the vehicle was sold without batteries. It is for the OP either to manufacture each and every part of the vehicle itself or to arrange for and fit any spare part by purchasing it from some other manufacturer. However, if the OP no.1/manufacturer of the vehicle fitted some spare parts such as tire & tubes and batteries etc. it is the duty of the OP No.1 to ensure about the standard and quality of such product fitted into the vehicle and sold to the customer as integral part of the vehicle. If there is any manufacturing defect because of which such parts are also damaged, the OP No.1 will be liable for the same irrespective of the above said warranty clause.  

9.             So far as, the arguments of the learned counsel for Ops that the performance of batteries depends upon various factors such as overloading and overcharging,  there is no evidence on the file that the complainant has violated or not adhered to the conditions or advisories mentioned in the warranty booklet. The OPs can’t escape from its liability by putting exemption that the complainant might not have adhered to guidelines issued by the OPs. Moreover, as discussed above, there occurred defects in other parts of the vehicle apart from batteries and complainant is not supposed to rush to OPs time and again for replacement/repairs of one part or the other. Even otherwise the defence of OPs has been struck off. Hence, any evidence without pleading has no legal value. Hence, complainant has suffered harassment both physically and mentally because of the aforesaid defective product sold by the OPs.

10.            In our considered view, the complainant has proved his complaint against the OPs, we therefore, hold them liable to compensate the complainant jointly and severally for the deficiency on their part. Hence, the present complaint is partly allowed with the following directions:-

1.         The complainant is directed to handover the vehicle in question alongwith papers/documents against proper receipt to the OP No.2 and sign the required papers as asked by the opposite parties for the transfer of the vehicle in question within seven days from the date of receipt of this order.

 

2.         The Ops shall refund the amount of Rs.37,800/- to the complainant i.e. after making  deduction @10%, on account of use of the vehicle, out of the cost price of the vehicle i.e. Rs. 42,000/- .

 

3. The Ops shall pay a lump sum amount of Rs.7,000/- on account of mental agony and  harassment.

 

4. The Ops shall pay a lump sum amount of Rs.5500/- on account of litigation charges.

 

11.            The OPs shall comply with the directions/order within a period of 60 days from the date of communication of copy of this order to OPs failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OPs. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.  

Announced on:- 10.02.2020

 

             Dr.Sushma Garg      Dr. Pawan Kumar Saini                Satpal

                    Member               Member                                 President

 

Note: Each and every page of this order has been duly signed by me.

 

                                         Dr.Sushma Garg

                                              Member