DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 8^th  day of May, 2024

Present      :   Sri. Vinay Menon V., President

                   :   Smt. Vidya A., Member             

                  :   Sri. Krishnankutty N.K., Member                                Date of Filing: 23/10/2021   

              CC/177/2021

Rubiya,

W/o. Manzoor,

Vettumpuliyil, Koduvayur (PO),

Chittur, Palakkad                                           -           Complainant

(By Adv. M. Alimuthu)

                                                                          Vs

1. Sujith Automobiles,

14/842, Coimbatore Road,

Palakkad.

2. TES Electronic Scooter,
   St. Thomas Traders,

Near Railway Overbridge,

MG Road, Thrissur – 680 001.                     -         Opposite parties

(OP  1 by Adv. C.R. Sajith

 OP 2 by Adv. R. Ajay krishnan)

O R D E R

By Sri. Vinay Menon V., President

1. Complaint purchased an electrical scooter from the 1^st O.P. which was manufactured by the 2^nd O.P. Complainant’s main grievance are two-fold (1) Vehicle is covering only 50 kms as opposed to 110 kms assured by the O.P.s after single charging; and (2) that the complainant could ply the vehicle only for 2 months. Complaint is filed seeking return of the cost of the vehicle along with interest and incidental reliefs.
2. O.P.s 1 and 2 filed version adhering to similar pleadings, that the complainant failed to carry out timely services, usage was rough and that the complainant had disabled the speed-breaker. They sought for dismissal of the complaint.   
3. Upon a studied consideration of the pleadings and   counter pleadings, the following issues were framed for adjudication:

1. Whether the tampering of the speed controller and absence of proper service and use resulted in the low mileage of the scooter?
2. Whether the complainant’s vehicle is in good running condition at present?
3. Whether there is any deficiency in service or unfair trade practice on the part of opposite parties?
4.  Any other reliefs?

4.           (i)      Evidence of complainant  comprised of proof affidavit and Exhibit A1.    

(ii)     Complainant was examined as PW1.

(iii)    OP1 filed proof affidavit and marked Exts.B1 & B2. OP2 marked Ext.B3.

(iv)     Witness for OP1 was examined as DW1.  

(v)     Commission report filed by the expert was marked as Ext.C1.

            Issue No. 1

5.         As already stated supra complainant’s main grievance raised in the memorandum of complaint are two-fold:

(1)       Vehicle is covering only 50 kms as opposed to 110 kms after single charging as assured by the O.P.s; and

(2)        that the complainant could ply the vehicle only for 2 months.

The 2nd grievance of the complainant is that they could not ply the vehicle for over two months. The complainant has not adduced any cogent evidence to prove their case. Hence this grievance cannot be given any consideration. 

At the time of evidence, while cross examining, the complainant has stated that she was having complaint regarding the speed of the vehicle. Since this was a fresh case, without being included in the pleadings, we are overlooking this complaint.

6.         In order to substantiate her contention, the complainant took out an expert commissioner.  After inspection of the vehicle the expert commissioner filed his report. Even though ample time was granted to the parties to file their objections to the expert commissioner’s report, both the parties did not file any objection. Thereafter, subsequent to the OPs having adduced their evidence, the complainant filed an application as IA 601/2023 seeking leave of this Commission to accept the objection.  Since objection was filed belatedly without offering any cogent reason for the delay, this IA was dismissed. Neither parties sought to cross examine the expert commissioner. So findings of the expert commissioner stand finalized. This report was marked as Ext. C1.

7.         Observations and findings made by the expert commissioner are summarized in page 5 of Ext.C1.  Observations made after inspecting the vehicle are reproduced herein below:

1. “The vehicle (TES PRIME GREY Li100 Electric Scooter) was able to continuously run for a distance of 71.5 kms in a single charge under normal operating conditions. The pilot vehicle which was accompanying the electric scooter also showed similar odometer readings ensuring that the electric scooter has covered around 71 kms.
2. The service details of the vehicle were not recorded in the owner’s manual.
3. The warranty of the vehicle and battery has expired.
4. The general condition of the vehicle body is quite poor as it might have had an accident.
5. Metallic noise was heard from the front wheel on free rotation.
6. The accelerator / speed controller in the vehicle was not working properly and difficult was felt in gaining torque while moving through elevated terranes.”  

8.         Inorder to answer the 1^st grievance of the complainant, that the vehicle is covering only 50 kms as opposed to 110 kms after single charging as assured by the O.P.s, we are to answer the following questions:

A.         Whether the complainant had tampered with the speed regulation mechanism of the vehicle?

B.         Whether the complainant had carried out proper service of the vehicle?

C.         Whether the battery is defective?

D.         If the battery is defective, whether such defect is attributable to lack of proper service or tampering of speed regulation mechanism?

A.         Whether the complainant had tampered with the speed regulation mechanism of the vehicle?                       

9.         It was the main contention of the O.P.s that the complainant had tampered with the speed regulation mechanism of the vehicle.

                        Since they raised the said allegation burden was upon the O.P.s to prove that the complainant had tampered with the speed regulation mechanism. But they had failed to get the matter ascertained by having the said fact reported through the expert commissioner.

10.       Hence O.P.s have failed to prove their contention that complainant has tampered with the speed controller.

B.         Whether the complainant had carried out proper service of the vehicle?

11.       Burden of proof was on the complainant to prove that she had undertaken proper service. She has no case that the O.P.s failed to maintain proper records in the course of their business. Therefore, she could very well have sought for a direction to the O.P.s to produce the relevant records from the O.P.s. No documents were called for from the O.P.s by the complainant to prove that she had undertaken proper service.

12.       As proof of absence of proper service, O.P.s rely on the absence of entries in user’s manual. But we refuse to subscribe to this view adopted by the O.P.s. Absence of entries in the user’s manual alone cannot be taken to be evidence of absence of proper service.

13.       Thus, we hold that the complainant had failed to prove that she had carried out proper service of the vehicle.

C.         Whether the battery is defective?

14.       On a perusal of Ext. C1, we are of the opinion that the vehicle is running, but with a milage of 70km/charge. Expert Commissioner has observed in his report in page 4 that “The mileage provided by vehicle seems to be good even if the battery is of more than 3 years old.”

15.       Even if we record a finding that the vehicle is running in good condition based on Ext. C1, one fact makes us reconsider this option.

Complainant had vehemently argued that her vehicle was running less than 50 kms/charge.  

Ext.A2 is the brochure issued to the complainant. This brochure contains the specifications of the vehicle purchased by the complainant. The kilometer per charge (KM/charge) for the type of vehicle purchased by the complainant i.e. Li100 battery type is shown to be 100 - 120 kms. This specification comes with conditions that are applicable. Ext.A2 does not show the conditions that are applicable.

Ext.B3 is the owner’s manual produced by the opposite parties to prove the various specifications of the vehicle. The technical specifications are seen in page 7 of Ext.B2. But this owner’s manual is applicable only to TES 500 Electric Scooter with battery types VRLA, Li70 and Li 60. This manual is not applicable to bikes running on battery type Li100, the type of vehicle owned by the complainant. Hence Ext.B3 is rejected in so far as it is sought to be made applicable to the case of the complainant’s vehicle.  

Thus, we are left with no documents to come to a conclusion what the conditions are that are applicable to avail the kilometer per charge of 100 – 120 kilometers.

16.       Failure on the part of the opposite parties to produce appropriate and material documents that would highlight the conditions that are applicable to the type of vehicle owned by the complainant weakens their case. The expert commissioner has found that the vehicle was running 70 kms on a single charge i.e. 20 kms more than what the complainant could avail.

But it falls short of 100 – 120 kms offered by the OPs by 30 kms. In the absence of any evidence to prove before this Commission that such reduced mileage is due to negligence on the part of complainant, we hold that the opposite parties has failed to prove that their vehicle is in good running condition.

17.       At the time of PW1’s cross examination, the complainant had deposed that she is still using the battery provided with the scooter (Page 3, lines 3 and 4).  To a specific question put forward by the O.P. as to whether the complainant is aware that if the vehicle is kept unused/idle for long periods, the battery would become dead, the complainant has answered in page 6, lines 14 to 16, in the positive, ie. she is aware of the fact.

O.P.s rely on these two statements to fortify their case that the battery provided is of good quality. But we refuse to tag the argument of the O.P. Complainant’s case is not that the battery is not functioning, but only that it is not giving the assured Km/charge.

                        The second statement cannot be used against the complainant to prove that the complainant had kept the vehicle idle. This statement only shows that the complainant is aware of a factual situation that a battery would become dead, if left unused.

18.       Therefore, we hold that the battery provided by the O.P.s was defective.

D.         If the battery is defective, whether such defect is attributable to lack of proper service or tampering of speed regulation mechanism?

19.       Having held that the battery is defective and that the complainant has failed to carry out proper service, the next question is whether there is any connection/nexus with the absence of repair and the defect in the battery. O.P.s had not adduced any evidence to prove this contention.

20.       Hence the O.P.s have failed to prove their case that low milage of the battery was due to lack of proper service.  

Issue No. 2

21.       Ext. C1 report was filed by the expert commissioner after using the vehicle. He has stated that the vehicle ran for about 70 KMs/charge without any troubles, except for some minor mechanical glitches. These observations are undisputed.

22.       Therefore, we hold that the vehicle is in good running condition at present.         

             Issue No. 3

23.       We, therefore, hold that there is deficiency in service on the part of OPs in providing vehicle with defective batteries.  

Issue No. 4

24.       On an appreciation of the facts, we find that the grievance of the complaint revolves around the battery of the vehicle. To that extent, we cannot order refund of the cost of the vehicle. But we hold that the complainant is entitled to be compensated for being provided with substandard batteries.

 25.      Accordingly, this complaint is disposed off, holding as herein below:

1)         The complaint is entitled to a compensation of Rs.25,000/- for being provided with substandard batteries.

            2)         The complainant is entitled to a cost of Rs.10,000/- .

3)         The OPs shall comply with the aforesaid order within a period of 45 days failing which the OPs shall pay an amount of Rs.500/ per month or part thereof from the date of   this order till the date of payment.

                        Pronounced in open court on this the 8^th  day of May, 2024.          

                             Sd/-                                                                                                                             

                                                                                                                                                  Vinay Menon V

                                                                                   President

                                                                                         Sd/-

                          Vidya.A

                                              Member         

                               Sd/-

                Krishnankutty N.K.

                                                                                                                                                   Member        

   APPENDIX

Exhibits marked on the side of the complainant

Ext.A1   -  Original tax invoice dated 20/2/2020  

Ext.A2  –  Original of brochure

Exhibits marked on the side of the opposite party:

Ext.B1  -  Original tax invoice dated 4/11/2021

Ext.B2   - Carbon copy of Job Card dated 5/11/2021

Ext.B3    - Original Owner’s Manual  

Court Exhibit: 

Ext.C1 – Inspection report filed expert commissioner.

Third party documents:  Nil

 Witness examined on the side of the complainant:

PW1 – Rubiya (Complainant)

Witness examined on the side of the opposite party:    

DW1 – Sujith (OP1)

Court Witness: Nil

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.