ORDER

SRI SHRINIDHI.H.N., MEMBER

1. This  complainant filed by the complaint under section 35 of the CP Act 2019 against the OP alleging deficiency of service and unfair trade practice praying for relief  by way of an order directing the OP to  cancel the registration of the vehicle and to refund the amount of Rs. 1,62,450/- with 18% p.a. interest and to take return of the vehicle and also to pay the amount of Rs. 50,000/- as compensation for agony and hardship suffered by the complainant due to negligence and deficiency of service.

2.  The brief facts of the case is as follows: 

The complainant submits that he had booked one scooter OLA SN PRO on 14.12.2023 and has paid showroom prize of Rs. 1,69,923/- less the subsidy with net payment of Rs. 1,47,499/-.  The complainant states that he had paid Rs. 16,000/- towards registration and other charges  and states that he had paid a total sum of Rs. 1,62,450/- to the OP. The vehicle was registered with RTO Yeshwantapura, Bangaluru with No. KA-04-KQ-9396 and delivered to the complainant on 22.01.2024.  At the time of delivery, it was noticed by the complainant that the vehicle had damage to the rear upper panel which was also brought to the notice of the OP and the OP has recorded the same “Rear Upper panel damage. Need to be replaced”. After taking delivery of  the vehicle, the complainant noticed  some further defects like horn not working, panel board display not working etc.  and he reported the issue to the OP on 23.01.2024, who advised the complaint to leave the vehicle on 24.01.2024 due to paucity of space and accordingly the vehicle is with OP from 24.01.2024.

3. The complainant further states that inspite of frequent reminders to the OP to resolve the issue and deliver the vehicle in sound working condition, the same is not considered by the OP. The complainant contends that the vehicle is with manufacturing defect, which has been concurred by the OP as well during the interaction with the OP and submits that the failure of the panel display board itself indicates the vehicle is not defect free and states that the vehicle is beyond repair and as such OP has not delivered the vehicle even after lapse of nearly 04 months from the date of purchase. The complainant alleges that the OP are involved in selling defective vehicle, not fit for use on road by the purchasers. The complainant levels deficiency of service against the OP and unfair trade practice as well and prays for the relief. 

4. On admission of the complaint, notice was ordered to be issued to OP on 09.05.2024  and same was served on OP on 17.05.2024. Inspite of receipt of notice the OP has not appeared before the commission and have not filed their version or attended the proceedings. Hence, the OP are placed Ex-parte and complaint was posted for evidence of the complainant.

5. The complainant filed chief examination affidavit along with documents, marked as C1 to C6, which are the Tax invoice towards purchase of the vehicle and the receipt for payment of RTO charges, the delivery note issued by the OP and the legal notice issued by the complainant dt.08.03.2024.

6. Heard arguments of complainant and complaint was posted for orders after hearing the arguments.

7. Considering the contentions and documents filed by the complainants, the following points arise for consideration by the commission are:

1. Whether the Complainant proves that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that he is entitled for the relief sought?
2. What order?

8. The findings on the above points are as under:

Point No.1         :       Partly Affirmative

Point No.2         :       As per final order

REASONS

9. POINT NO.1:-    Despite of service of notice, OP not appeared before the commission and not chosen to file version to contest the matter.  The Judgment rendered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, which is reported in CPR 2018(1) at Page 325 between Kotak Mahindra Old Mutual Life Insurance V/s Dr.Nishi Gupta, In this case, Hon’ble National Commission has held that “Non-filing of Written version in the complaint which amounts to admission of complaint allegations”. The guidelines of the above ruling is aptly applicable to the case on hand as the OP in this case remained absent and on account of that they are placed ex-parte. In the absence of version and affidavit from their side, the complainant’s allegations in the  complaint is to be held as a proved fact. On this point, an inference could be drawn in favour of complainant as against the OP that there is a deficiency in service on the part of    the OP.    

10. From the facts of the complaint, the commission could note that the averments in the complaint are well founded. The complainant’s allegations are that soon after purchase of the OLA Electric SN Pro on 14.12.2023 on payment of invoice price reduced by the subsidy amount totalling to Rs.1,47,499/- along with Rs. 16,000/-  as registration and other charges and he noticed defects.   The vehicle was also registered with the RTO Bangalore with registration No.KA-04-KQ-9396 and was delivered to the complainant on 22.01.2024.  The main contention of the complainant is, that he observed damage to the upper panel and was brought to the notice of the OP he also acknowledged and recorded the same stating that it needs to be replaced(document no-4). Apart from this, the complainant noticed several other defects in the new vehicle and took the vehicle to the OP’s showroom on 23.01.2024 and on the suggestion of the OP the vehicle was left for attending to defects on 24.01.2024 due to paucity of space.  It is averred that inspite of repeated requests to attend the repairs and replacement of parts to the said vehicle,  the OP have failed to do so and have remained mute inspite of legal notice dt. 08.03.2024 which is also served on them on 14.03.2024. Thus the complainant prays for relief of the refund of an amount of Rs. 1,62,450/- along with interest at 18% PA by taking return of the said vehicle along with compensation of Rs. 50,000/-.

11.   The commission after going through the complaint contents observes that the new vehicle which was delivered to the complainant on 22.01.2024 has developed several problems like panel board display not functioning, horn failure and damage to Rare upper panel at the time of delivery of the vehicle and acknowledged by the OP.  The  very fact that the  OP  has remained   silent to the legal notice of the complainant in itself indicates that the OP has guilty of selling defective vehicle and consequent deficiency in service by their negligent attitude in attending to complaint on the vehicle which is brought to its notice. Apart from this inspite of due service of notice issued by this commission, the OP has neither appeared before this commission nor filed version in its defense on the allegation of the complainant. Therefore as observed by the Hon’ble NCDRC on the above cited judgment, this commission considers that the OP is accepting the allegation in this complaint  filed by the complainant.

12. Under these circumstances the commission is left with no option except to allow the complaint and complainant succeeds.    Accordingly, we answer the Point No.1 in Partly in affirmative.

13. POINT NO.2:- In the result, for the forgoing reasons,  we passed the following:

                                         ORDER

1. The complaint is allowed in part.
2. The OP is directed to refund the amount of Rs.1,62,450/- to the complainant along with interest at 6% p.a. from the date of payment by the complainant till the entire payment is made to the complainant.
3. The OP is also directed to pay  a sum of Rs.20,000/- as compensation for mental agony and hardship caused to the complainant by way of negligence and deficiency in service by the OP and a further sum of Rs.10,000/- towards cost of litigation.
4. The OP is directed to comply this order within 45 days from the date  of this order, failing which the OP is liable to pay interest at 8% p.a. on all the above sums as ordered by this commission.
5. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 10^th July  2024)

(RAMACHANDRA M.S.)

PRESIDENT

     (NANDINI H KUMBHAR)                    (SHRINIDHI.H.N)            

Witness examined on behalf of the complainant by way of affidavit:

Sri Durgesh Nishad-Who being the complainant.

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit: Nil

     Documents produced by the OP:  Nil

(RAMACHANDRA M.S.)

PRESIDENT

     (NANDINI H KUMBHAR)                (SHRINIDHI.H.N)