COMPLAINT FILED ON: 30.09.2009 DISPOED ON: 09.07.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 9TH JULY 2010 PRESENT:- SRI. B. S. REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT No.2303/2009 COMPLAINANT OPPOSITE PARTIES S. Selvaraaj, # 9, Elim Enclave, 1st Cross, Anjanappa Block, Krishnamma Garden, Benson Town Post, Bangalore 560 046. In Person V/s. 1. M/s Srivari Motors, # 1830 & 1831, SJR Plaza, Dr. Rajkumar Road, Rajajinagar, Bangalore 560 010. (Complaint withdrawn against OP-1) 2. M/s Ultra Motors (P) Ltd., 19, Okhla Industrial Estate-III, New Delhi. Advocate: Sri. B.Sharath Kumar 3. Mr. Nishith Rao, Area Sales Manager for Ultra Motors, C/o M. Shankar, # 97, 4th Main, Ganesh Temple Road, Kasi Nagar, Yelachinahalli, J.P. Nagar 6th Phase, Near Metro, Bangalore. (Complaint withdrawn against OP-3) O R D E R SRI. B.S. REDDY, PRESIDENT The complainant filed this complaint seeking direction against opposite parties (herein after called as O.Ps) to refund of the cost of the vehicle amounting to Rs.31,625/- and an amount of Rs.800/- towards purchase of new tyre on the allegations of deficiency in service on the part of the OPs. 2. In the complaint it is stated that the complainant purchased a battery operated vehicle model Marathon on 03.10.2008 from OP-1. The vehicle started giving problem on the first day onwards, he fell down thrice due to brake failure, the brake spring got struck and lock the wheel movement by itself and suddenly leads to an accident. The brake system which is fitted the vehicle is not working for longtime and no safety for the riders in the midst of the heavy traffic roads in Bangalore. Both the brake wires had cut within six months. Now also rear electric wheel brake is not working and the indication is not glowing while applying rear brake. Seventh day onwards mileage per charge had come down to 60 km instead of 100 km per charge. The complainant taken the vehicle to OP-1, they tested and given back the vehicle after three days, tenth day the speedometer cable cut they replaced, once again after a month once again speedometer cable was cut and once again replaced. The mileage problem continued, the vehicle was taken for set righting mileage and the vehicle was left with OP, OP has not informed to take the vehicle after fault checking. The complainant had taken the vehicle after 10 days on the same condition. In the month of January 2009 vehicle stopped on the road and not even used 45 km of full charge. The complainant requested the dealer to sent the person but he had sent the person after 2 days, the vehicle kept on the road without safety, then he replaced by the standby battery and later he replaced with new one at the km of 2300 km. Even after changing the battery, the mileage per charge is not up to the mark. Company claims 100 km on standard condition. Even reducing by 25% on the road condition at least it should give 75 km per full charge. The complainant tried according to the instruction of OP-2, but there is no improvement, the same condition is persisting. It is giving 60 km per fully charge, some time it is 45 km. OP promised to change the battery, but not done, even by changing the same capacity is not going to improve the mileage per charge. By the time OP-1 is not taking the vehicle for service and no one is there to give services at Bangalore. The tyres for the front and rear does not suit for Indian condition, back wheel tyre worn out at one side due to back wheel alignment of the manufacturing defect. It got punctured in the month of May end, he informed to the regional sales manager, he was unable to send the person, the vehicle was on the road without safety for a week and it had been taken to M/s Alphines motors, Bannergatta Road for servicing after repair the puncture. They promised the vehicle will be delivered at home, but they have not been done. The complainant went and taken the vehicle after one week. The practical difficulty is if a vehicle got punctured at any place the trained person only has come to remove the wheel, it will take huge time and lengthy procedure. The complainant has to wait days together for the mechanic, leads to tension and making the situation very ugly, thrice it got punctured due to uneven worn out of the tyre. Recently same back wheel tyre got punctured a person visited after the great struggle. The complainant paid Rs.800/- for the new tyre and tube and replaced (at 5900 km) after 10 days with the repeated requests. The main on / off switch with safety lock was failed in the month of June they replaced after two months. The battery charging indicator is failed at the same time till date it has not been replaced. Without indicator the complainant is not able to check the condition of the battery level. The body cover at the left side is not seating with fixing the screw, it is fixed by the tie wire by their mechanic. The same thing he has done for back wheel mudguard for holding. Even it is not completed guaranty period, the complainant had undergone humiliation almost more than one and half month vehicle was standing for the service. The complainant does not want to continue this vehicle. Let the company take back the vehicle and pay back the amount paid (Rs.31,625/-) and also an amount of Rs.800/- paid for new tyre. Hence the complaint. The complainant filed memo on 07.01.2010, withdrawing complaint against OP-1 and 3. 3. On appearance, OP-2 filed version contending that the complaint does not disclose any manufacturing defect or deficiency in service, which attracts the provisions of Consumer Protection Act. Hence complaint is liable to be dismissed. It is contended that OP-2 started manufacturing activities since 2007, OP is manufacturer of electric vehicles two wheelers and it has sold around 20000 vehicles all over India. It is admitted that the complainant purchased the battery operated vehicle model marathon on 03.10.2008. The vehicle is newly manufactured, OP has provided manual to the purchasers, which captioned as instructions and guidelines regarding over all maintenance and handling of the vehicle. The user of the vehicle should follow the instructions providing in the manual. The allegations regarding the vehicle giving problems like brake failure and the brake spring struck and lock the wheel movement by itself etc., are all denied as false and baseless. It is stated that the complainant is not well versed in driving; the alleged allegations are not relating to any manufacturing defect or deficiency in service. The allegation regarding mileage per charge had come down to 60 kms instead of 100 kms per charge and the other allegations regarding the vehicle taken to M/s Srivari Motors and the other allegations are all denied as false and baseless. When the complainant purchased the vehicle, it was as per specifications. Good mileage of vehicle depends on driving habits, proper charging of battery, loading according capacity of the vehicle, road conditions etc., the complaint is filed after putting the vehicle in use for almost a year. The complainant purchased the vehicle on 03.10.2008, battery warranty expired on 01.04.2009 and warranty period for rest of the vehicle expired on 02.10.2009 and the complaint is filed on 30.09.2009 with baseless allegations. The allegation that M/s Srivari Motors is not taking vehicle for service and no one is there to give service at Bangalore is baseless allegations as the complainant himself referred in the complaint that he has taken the vehicle to M/s Alpines Motor. It is contended that the complainant is still a learner and he is neither experienced in driving nor has got knowledge of two wheeler driving. OP or any of the representatives have not promised to replace or return any of the parts of the vehicle. The complainant having used the vehicle for almost a year in rash and negligent manner, without proper maintenance, is now estopped from complaining against the same. The complainant has filed complaint only with an intention to making wrongful gain for himself and cause loss to the OP. The complainant has no parking place; the vehicle was parked on the roadside regularly. The electronic / battery vehicles efficiency will be effected if it is parked in open space. The definitely life and efficiency of the battery would be lowered due to wrongful and incorrect use and handling of the vehicle. With regard to change of wheels if the same is punctured, in most of the bikes in India has to be done by a mechanic only and lay person cannot do the same. Hence it is prayed to dismiss the complaint with exemplary costs. 4. In order to substantiate the complaint averments, the complainant filed affidavit evidence and produced documents. The Service Head of OP-2 Sri. Sanjay Rastogi filed affidavit evidence in support of the defence version and produced documents. 5. The complainant and OP-2 filed written arguments, arguments on both sides heard. Points that arise for our consideration: Point No.1:- Whether the complainant proved the deficiency in service on the part of the OP? Point No.2:- Whether the complainant is entitled for the reliefs now claimed? Point No.3:- To what Order? 6. We record over findings on the above points: Point No.1:- Affirmative. Point No.2:- Affirmative in part. Point No.3:- As per final Order. R E A S O N S 7. At the outset it is not at dispute that the complainant purchased a battery operated two wheeler vehicle model marathon for Rs.31,625/- from M/s Srivari Motors, the authorized dealer of OP-2 on 03.10.2008. OP-2 is the manufacturer of the said two wheeler. As per the complaint averments the brake system fitted in the vehicle is not working properly, both the brake wires were cut within six months, rear electric wheel brake is not working and the indication is also not glowing while applying rear brake. The mileage per charge had come down to 60 km instead of 100 km per charge. The mileage of the vehicle is 60 and some times 45 km per charge. The tyres for the front and rear does not suit for Indian condition, back wheel tyre worn out at one side due to the back wheel alignment of the manufacturing defect. If the vehicle got punctured at any place, it is not easy to remove the defective tyre, only the trained person has come to remove the same, the same will take huge time and lengthy procedure. Back wheel tyre punctured recently complainant has to pay Rs.800/- to new tyre and tube and replace the same. The main on / off switch with the safety lock failure in the month of June, the same was replaced after two months; the vehicle was not having safety lock till the replacement. The battery charge indicator failed at the same time, till date it has not been replaced; without indicator it is not possible to check the condition of the battery level. Thus the complainant claims the vehicle is totally not satisfied by the performance and service provided by the company. There is no proper service center, spares are not available, the mileage as claimed is not achieved, the tyre supplied does not suits Indian conditions, the brake failure system leads to an accident, no proper service personals and service not done in time, waiting service personal, wasting of valuable time. 8. The complainant has produced the copies of complaints lodged before the Area Manager of OP-2 regarding the vehicle; the same are marked as Annexure IX to XI. Annexure IX is dated 14.05.2009, the same relates to the mileage stating that the vehicle mileage is only upto 65 km per charge, brake system is not working properly, when the brake is applied sound is coming from the drum. Back (rear) tyre is unevenly worning out due unbalance of the vehicle. Tyre pressure is not standing for more than 4 days, totally vehicle performance is not satisfactory. As per Annexure X dated 10.07.2009 the complainant has informed the Area Manager regarding the fact that after charging the new battery the mileage of the vehicle is 60 to 65 km only, the battery indicator meter is not working. As per Annexure XI dated 13.08.2009 it is stated that the back wheel tyre is worn out on one side because the balancing of the wheel is not proper (manufacturing problem). Brakes are not working properly battery is not giving mileage per charge, now the mileage has come down to 40 km per charge, charge time of battery is required 8 hours, both metering speed and battery indicator is not working, tyre and tube is not a good quality. After going through these annexures it becomes clear that the complainant has repeatedly informed Area Manager about the defects of the vehicle particularly with regard to the mileage per charge and also the alignment of rear wheel which led to wearing out of rear one side portion of the tyre. The complainant has produced the photos to show the condition of tyres at Annexure IV and V. Annexure VII reads as under: Introducing Marathon from Ultra Motor, Indias first long range fuel-free electric scooter. Plug in, charge it and keep riding. And you wont have to stop for the next charge before 100 km. Its the first scooter in India that goes upto 100 km per charge. Whats more, it adds to your monthly savings. Brought to you by Ultra Motor Company of UK, pioneers of advanced technology for Electric Vehicles. So, just charge one and you can go on and on. Annexure VI reads: Forget the distance, just keep riding; 85 km range; Enjoy the ride with total freedom Freedom from pollution, petrol and maintenance bills. As per Annexure VII the vehicle two wheeler mileage was shown as 100 km per charge, but from the affidavit evidence of the complainant it becomes clear that the mileage of the vehicle is only 65 km per full charge. When the mileage of the vehicle is not as per the broucher and the rear wheel tyre of the vehicle is worn out on one side as per Annexure IV photo due to improper alignment and the duration for charging the battery is taking more than 8 hours; all these defects are manufacturing defects. The tyres and tubes provided to the vehicle are also sub standard quality; there is no authorized service center; only Regional Sales Manager is available. Without there being proper service center for the vehicle it is difficult for the complainant to get the service needed from time to time. After M/s Srivari Motors has withdrawn the service facility there is no any other service center. 9. The owners manual produced by OP-2 goes to show that the time for charging battery is 6 to 8 hours, but for full charge it taken more than 8 hours and further the manual provides that for any trouble the vehicle is to be taken to nearest service center. Without there being any service center it is difficult for complainant to take the vehicle to the service center. The warranty for battery is shown as 180 days or 6000 kms, but the battery was replaced at 2500 kms with new one and even after the replacement of the new battery the performance was not satisfactory. Further it becomes clear that the complainant could not make use of the vehicle for one or the other problems since beginning. The complainant purchased the vehicle on 03.10.2008 and the warranty period of one year was upto 02.10.2009, the complaint has been filed on 30.09.2009. On the basis of the materials placed and affidavit evidence of the complainant we are of view that the complainant proved the deficiency in service on the part of OP-2. 10. The complainant filed the status report of the vehicle on 25.03.2010 stating that as per page 9 of the owners manual the charging time is 6 to 8 hours for full charge, but for charge was taking more than 8 hours. On 11.03.2010 the battery was taking 12 hours for a charge, but it was even not working for 10 km / charge without the battery is not taking the charge, because of the non-charging of the battery, the vehicle is not able to be used at present, as per page 16 of manual for any trouble take to the nearest service center, but he has no nearest service center at all. From this report it becomes clear that now the vehicle is not in a running condition on account of non-charging of the battery. Though the battery has been replaced the same is not taking the charge. 11. The complainant is not a layman, he is a graduate in engineering; working in the Public Broadcaster as a Assistant Engineer and he is having driving license of two wheeler, the copy of the same has been produced. In view of the same there is no merit in the contention of OP that the complainant has not followed the instructions of the owners manual in maintaining the vehicle and the defects of the vehicle are due to improper handling and negligent driving of the vehicle. We are also unable to accept the contention that the complainant used to park the vehicle on the road side regularly, on account of the same the battery is affected. The complainant has clearly stated that when the tyre is punctured, battery and main switch failed, he was not able to move the vehicle, the same was parked on the road only. In such circumstances the complainant cannot be expected to carry the vehicle to his residence without getting defects rectified. Taking into consideration all these facts and circumstances we are of the view that the complainant is justified in demanding the refund of the amount paid towards the cost of the vehicle, as the vehicle is unfit for use on the road. Merely because OP-2 has not undertaken to refund the amount, the complainant cannot be denied the relief of refund of the amount making him to retain the vehicle. The complainant has paid an amount of Rs.31,625/- towards the cost of the vehicle and he has incurred expenses of Rs.800/- towards purchase of new tyre. However the complainant has made use of the vehicle for about 10 to 11 months. Taking into consideration of all the facts and circumstances the ends of justice would be met by directing OP-2 to refund an amount of Rs.25,000/- and to take back the two wheeler vehicle sold to the complainant. Accordingly we proceed to pass the following: O R D E R The complaint filed by the complainant is allowed in part. OP-2 is directed to refund an amount of Rs.25,000/- with litigation cost of Rs.2,000/- to the complainant within 4 weeks from the date of this order and take back the two wheeler vehicle sold to the complainant. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 9th day of July 2010.) MEMBER MEMBER PRESIDENT Snm:
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