Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 31.12.2016
Smt. Karishma Mandal
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To direct the opposite parties to pay Rs. 4,00,000/- ( Rs. Four Lakh only ) including compensation.
- Brief facts of the case which led to the filing of complaint are as follows:-
The complainant no. 1 has asserted that she purchased an E – Bike from opposite party no. 1 after paying the price of Rs. 30,550/- vide bill no. 5 dated 11.03.2008 which has been filed with the list of documents. The complainant no. 1 purchased the bike after paying price through signature of complainant no. 2. The aforesaid E – Bike was insured with opposite no. 2. The aforesaid bike was made by Kailash Electric Vehicle India Pvt. Ltd. Muradabad (opposite opposite no. 3 ) and insured by opposite party no. 2 being policy no. 0G – 09 – 2416 – 9961 - 00000501 issued on 05.06.2008 the photocopy of which has been annexed by the complainant on page 15 of list of documents.
It has been further asserted by the complainants that he was assured that it is the best bike for women for which there is no need of license. At the time of test drive complainant no. 1 noticed some trouble in the vehicle but the complainant was assured by opposite party no. 1 that as it is a new bike there may be some trouble of trivial nature. Complainant were also assured that the aforesaid vehicle will run 60- 70 Km after fully charging its battery. After the aforesaid purchase the aforesaid vehicle began to give trouble and sometimes it used to catch speed even without using accelerator etc. However the complainants were assured that for rectification of defects the motor and other parts of the bike will be send to the company.
It is further case of the complainant that on 15.11.2008 after making minor rectification the vehicle was put on the trial but on the time of test trial the vehicle was damaged due to accident and thereafter the complainants use to visit opposite party no. 1 for rectification of major defects due to which the complainants were put to mental agony and harassment.
Again on 16.01.2009 the opposite party no. 1 returned the vehicle of the complainants after making some rectification but the major trouble of the vehicle was never redressed due to which the complainants have been put to loss of Rs. 4,00,000/-.
On behalf of opposite party no. 1 a written statement has been filed stating therein that there is no reliable proof of any manufacturing defect or any defect. It has been further asserted that at the time of purchase the complainants were informed that the vehicle may develop defect in heavy rain. It has been further asserted that opposite party no. 1 is neither manufacturer nor has got any technical knowledge rather he is a middle man. It has been further asserted by opposite party no. 1 that privy of contract is between the purchaser , insurance company and manufacturer and opposite party no. 1 never extended any assurance about the vehicle being totally good.
On behalf of opposite party no. 2 a written statement has been filed stating therein that the risk of loss of insured vehicle due to accident by external means was covered under the policy but the simple wear and tear was not covered under the policy. In Para – 6 of the written statement the opposite party no. 2 has asserted as follows, “ that there is no question of deficiency or latches on the part of opposite party in service to the complaint arises as the complainant never lodged any claim before this insurance company. Thus the complaint needs to be dismissed on this ground against this opposite party”.
It further appears from the record that vide order dated 04.05.2011 the name of opposite party no. 3 has been deleted on the prayer of the complainants.
The facts asserted by the respective parties have been briefly narrated in the forgoing paragraphs.
It is the case of the complainant that during the test drive of the aforesaid vehicle it developed some trouble but the opposite party no. 1 had assured that it is a new bike hence there may be some minor defects which can be rectified. From perusal of Para – 7, 8 and 9 of the complaint petition it appears that several times the complainants have given the vehicle for rectification to opposite party no. 1 but their grievance could not be redressed. The fact asserted in Para – 7, 8 and 9 of the complaint petition has not been denied effectively by the opposite party no. 1. Opposite party no. 1 has also admitted that he has sold the bike.
From perusal of complaint petition it further transpires that since the date of purchase there was defect in the E – Bike which could not be cured by opposite party no. 1 it is needless to say that as opposite party no. 1 had sold the E – Bike to the complainant hence he has duty to get the trouble of the E – Bike rectified by the manufacturer company of which he was a agent because he used to sold the aforesaid E – Bike to the complainants and others.
So far opposite party no. 1 is concerned as the opposite party no. 2 in Para – 6 of his written statement has specifically asserted that the complainant has not lodged his claim with opposite party no. 2 hence the opposite party no. 2 cannot be saddled with conditions or fine etc. It is expected that when the complainants will lodge claim with opposite party no. 2 then opposite party no. 2 may decide the matter in accordance with law.
No any rejoinder has been filed on behalf of complainants with regard to the facts asserted by the opposite parties.
However from the fact discussed above we find and hold that by not redressing the grievance of the complainants the opposite party no. 1 has committed serious deficiency. Hence we direct the opposite party no. 1 to return the price of vehicle i.e. 30,550/- ( Rs. Thirty Thousand Five Hundred Fifty only ) to the complainant no. 1 within the period of two months from the date of receipt of this order or certified copy of this order failing which the opposite party no. 1 will have to pay an interest @ 10% of the amount of Rs. 30,550/- ( Rs. Thirty Thousand Five Hundred Fifty only ) till its final payment.
Opposite party no. 1 is further directed to pay Rs. 10,000/- ( Rs. Ten Thousand only ) to the complainant by way of compensation and litigation costs within the period of two months.
Accordingly this complaint stands allowed to the extent referred above.
Member President
