5. Subsequently OP has taken the custody on E-bike for 2nd time for the rectification of defective issues, retained E-bike for more than 80 days with OP service station. Without intimation to the complainant and consent from him, OP replaced internal hardware component for both motor and transmission for the new bike. Under the warranty claim without any consent from the complainant and without creating any job card, OP tried to rectify the defects. Complainant alleged that without the consent and intimation from him, OP has replaced the hardware for new bike which is not acceptable, no matter, it is under the warranty which is having several defects. Since it has defect from the day-one of the delivery, complainant completely disappointed with new bike.
6. At the same time he alleges that the Vida purchase policy, as condition of the new bike will not get any service until first year/1000kms of run which ever comes first. Since OP has replaced the internal parts/exchange for new bike for not even one day usage which has manufacturing defect. Complainant alleged, he is totally dissatisfied with vehicle which has already caused psychological disturbance, inconvenience and hardship not willing to accept the same by complainant. He also alleged, he spent lot of time by this issue by taken leave without pay and spent on huge amount on hiring private cabs for his neccesities. Hence he sought the relief as he prayed supra.
7. OP No.1&2 represented through counsel, after the issuance of notice from this commission. OP No.2 is the manufacturer of E-bike Vida V1 pro and OP No.1 is authorized dealer of OP No.2. OP’s admitted that complainant has purchased E-bike from OP No.1. OP No.2 also admitted that the vehicle carries the warranty of 5 years or 50,000kms whichever is earlier on all its 2 wheelers or unless otherwise agreed upon. OP No.2 contends that the warranty policy does not provide for replacement or refund. OP’s denied the averments made in the complaint and taken stand that there is no deficiency of service and also he has referred several citations with regard to the replacement and refund of motor vehicle when the consumer alleged the manufacturing defect in the vehicle. Hence he prayed for dismissal of complaint in the ends of justice.
8. After filing the version, the case was set down to lead evidence from both the parties. Accordingly complainant filed affidavit evidence and also produced 5 documents along with Certificate U/s 65B of Indian Evidence Act which are marked as Ex.P.1 to Ex.P.6. Complainant reiterate in his affidavit evidence as he stated in his complaint.
9. One Chandrashekar Tripati from the office of OP No.2 has adduced affidavit evidence on behalf of OP No.1&2 has filed 5 documents along with certificate U/S 65B of Indian Evidence Act which are marked as Ex.R.1 to Ex.R.6(b). Heard complainant counsel and perused the written argument of OP, citation filed by complainant and materials on record.
10. On the basis of above pleadings for our consideration are as follows:-
i) Whether the complainant proves the deficiency of service on the part of OP?
ii) Whether complainant is entitled for the relief?
iii) What order?
11. Our answers to the above points are as follows:-
Point No.1:- In the affirmative.
Point No.2:- Partly affirmative.
Point No.3:- As per the final order.
REASONS
12. Point No.1&2:- These points are inter-connected to each other and for the sake of convenience, to avoid repetition of facts, these points are taken up together for common discussion.
13. After going through the pleadings, evidence and written arguments submitted by parties, it is not disputed that complainant has purchased E-bike Vida V1 pro mentioned by Hero Motor Corp. It is also not disputed that complainant has paid Rs.1,39,000/- after deducting subsidy of Rs.60,000/- out of Rs.1,89,523/- which is at Ex.P.1 and also paid Rs.20,000/- towards portable charger and Rs.510/- towards ladies footrest and paid Rs.8,316/- to obtain insurance on vehicle from ICICI Lombard which are at Ex.P.1(a) to Ex.P.1.(c). Here there is no question arised about the payment or with regard to the purchase. The dispute raised only with regard to the defect existing in the E-bike which is purchased by complainant by paying Rs.2,25,986/- to OP for which OP has issued tax invoice and insurance policy. As complainant stated in his complaint the switch on of the motor for the first time, it exhibits the malfunction of battery detecting the display issue in the digital screen of the vehicle. Since it was in the showroom, immediately the technician attended the defects and started the motor bike and handover the E-bike to the complainant. He further stated that he found harsh and weird sound out of motor while he was coming to home. Immediately complainant has intimated the same to the OP, but OP took 3 to 4 days to send the technician to his place. Subsequently complainant sent E-mail one after the other, bringing the defects and the sufferings he is going through to OP with regard to the vehicle and he wrote E-mail on 02.01.2023 which is within a 4 days of its purchase and within 50km of run. Complainant sent E-mails to OP on 06.01.2023, 09.02.2023, categorically stated the defects in the vehicle throughout his E-mails which are at Ex.P.2 and Ex.P.3.
14. Even after the first repair complainant faced similar problems with vehicle, the same has been brought to the notice of OP through E-mail which is at Ex.P.3 i.e., on 09.01.2023. It shows complainant was facing problem with vehicle since from the date of delivery of the vehicle till filing this complaint. OP filed his objection to the allegations made by the complainant in his complaint, OP denied them. OP admitted that the vehicle carries warranty of 5 years or 15,000km of run whichever is earlier as per the terms and conditions. At the present case in the hand, it is not in relation to the warranty and the repairs under warranty. Complainant suffered with defective bike after several E-mails and services by technical experts of OP, the E-bike still proceeds with similar defects, made him to seek replacements of vehicle or refund of the amount from OP, since it many issues and manufacturing defect. But OP denied the allegation that the vehicle having manufacturing defect and based on the allegations OP relied upon the Hon’ble NCDRC and Hon’ble Supreme Court. But the decisions of which OP is relied upon having different facts and circumstances. OP taken stand that there is no expert evidence to prove the manufacturing defect as complainant alleged in his complaint.
15. By perusing the statement of objection filed by OP, Point No.25 and 28, OP himself admitted that, has replaced the required parts with brand new spare parts as per the warranty policy and also he admitted that the defective parts have been replaced under warranty claim. When it is the stand of OP, OP itself admitted within few days of delivery, he replaced the defective parts and under went repair services within 50km’s of its run, it shows it has the manufacturing defect and the same has been not rectified as the complainant’s satisfaction even after several requests and E-mails to the OP, OP did not attend to his satisfaction and delivered the vehicle with a proper condition.
16. Though warranty is for 5years or 50,000kms run whichever is earlier, considering the OP has attended under warranty without charging anything for repair service, such being the case, it not sure that the vehicle will run smoothly without any problem till the warranty lapses. OP produced owner’s manual copy which is at Ex.R.1, clause 17e mandatory warranty condition, it reflected that “Hero Motor corp obligates under this warranty limited to repair or replacing, free of cost, those parts of vehicle are upon examination by the company may prove to the satisfaction to the Hero Motor corp to have a manufacturing defect.” By perusing this clause we are of opinion that replacement of defective parts at the initial stage of its purchase considered to be a manufacturing defect. Hence in our considered view the expert opinion to prove the manufacturing defect is not required in this particular case.
17. It is pertinent to note that OP has given substitute vehicle/loaner vehicle bearing No:KA-51-HW-2013 to the complainant when he has taken the custody of vehicle for repair services. At the time of arguments, counsel for OP vehemently argued that the loaner vehicle is not returned by the complainant even several requests have made to return back and collect the E-bike Vida V1 pro. Per contra complainant argued that he sought for the refund of amount what he paid for vehicle, accessories and insurance. In our considered view and perusing the documents placed by both the parties, complainant has proved the deficiency of service of OP and he is entitled to get refund of Rs.1,39,000/- towards vehicle, Rs.20,000/- towards portable charger, Rs.510/- towards ladies footrest he paid. Complainant also paid Rs.8,316/- towards insurance on the vehicle since it has 5 years of insurance policy on the vehicle i.e. till 2027, complainant is also entitled to get it back from the OP. Complainant is also entitled to get interest on the amount he paid to the vehicle and accessories, not on insurance premium. On the above reasons we answer Point No.1&2 accordingly.
18. Point No.3:- In view of the discussion referred above, we proceed to pass the following:-
ORDER
- Complaint filed U/S 35 of Consumer Protection act, is hereby allowed in part.
- OP No.1&2 jointly and severally liable to refund Rs.1,59,510/- toward vehicle and accessories together with interest at the rate of 8% per annum from the date of purchase till this order by collecting loaner vehicle No.KA-51-HW-2013 from complainant, if it is in his custody and to pay Rs.8,316/- towards insurance premium.
- OP’s shall pay the Award amount within 30days from the date of order failing which OP shall pay interest at the rate of 10% per annum from the date of order till realization.
(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 30th day of OCTOBER, 2023)
