SRI. SAJEESH.K.P    : MEMBER

    The complainant has  filed this complaint  under Sec.35 of the Consumer Protection Act 2019,  seeking direction against the  OPs to refund  the amount of Rs.40712/- towards the price of autorikshaw and also pay Rs.1000/- per day towards his daily income.

 Complaint in brief :-

   According to the complainant, the complainant is an auto driver  as per the advertisement published by the OPs the complainant purchased the vehicle  from 2^nd OP.  1^st OP is the manufacturer and 2^nd OP is the  dealer of said autorickshaw . The complainant  and his family has been earning their livelihood through the income derived from the autorickshaw.  After purchasing the vehicle he approached Legal Metrology Department for the approval  on speedo meter in the vehicle and the department demanded single bill for the speedo meter but the 2^nd OP was not ready to issue single bill.  So the said department  refused to seal the speedo meter in the vehicle to that  effect.  A notice was issued to the legal metrologies  department to the complainant though the same was informed to OPs they were not ready to accept the same.  Subsequently the complainant used the vehicle for transporting the passenger then he realized the vehicle is not in a condition as they assured by the OPs.  Thereafter on 6/12/2021 the complainant sent notice to the OPs but there was no response from them.  Hence this complaint.

    After filing the complaint, commission  sent notice  to both OPs .  Both notice duly served.  1^st  OP entered  appearance before the commission and filed their version .  But 2^nd OP is not appeared before the commission and not filed any version.  So the 2^nd OP has no version as such in this case , the commission  came into  be proceed against  the 2^nd OP is set exparte.

Version of   1^st OP in brief:

    The 1^st OP denied the entire averments except those specifically admitted.  The 1^st  OP never offered 100KM milage for  4 hrs charging of battery and 1^st OP never made such  advertisement.  1^st OP contended that the advertisement might be made by 2^nd OP.  The 1^st OP has replaced 2 batteries by providing brand new batteries of Jascon company having 120AH each along with battery charger, battery meters bush, nuts and bolts to fit the said batteries  on the receival by complaint from 2^nd OP which was forwarded by complainant to 2^nd OP.  Furthermore, 1^st OP directed  2^nd OP to take back the meter  from complainant and to refund the amount received for meter  by 2^nd OP.  The 1^st OP contended  that they have received the complaint from 2^nd OP on 6/10/2021 and at the very same day OP delivered the required spare parts  along with warranty.  There is no deficiency in service from the part of 1^st OP  as 1^st OP provided their service to complainant at the best.  Hence the petition is liable to be dismissed along with the cost.

       Due to the rival contentions raised by the OPs to the litigation, the commission decided to cast the issues  accordingly.

1. Whether there is any deficiency in service from the part of  OPs?
2. Whether there is any  compensation  &  cost to the complainant?

       In order to answer the issues, the commission called evidence from both parties. The  complainant produced documents which is marked as Exts.A1 to A8.    Ext.A1 is the advertisement of notice issued by 2^nd OP, Ext.A2 is the advance receipt dtd.8/1/2021 issued by 2^nd OP, Ext.A3 is the receipt of  Co-operative bank Payyanur dtd.8/1/2021, Ext.A4 is the copy of certificate issued by legal Metrology, Ext.A5 is the tax invoice dtd.19/2/2021 issued by 2^nd OP, Ext.A6 is the RC, Ext.A7 is the tax invoice dtd.19/2/2021 issued by 2^nd OP and Ext.A8 is the letter sent by complainant to 1^st OP. The complainant adduced evidence through proof affidavit and examined as PW1.  The commission appointed an expert commissioner and marked the expert report as Ext.C1. The 1^st OP has no oral or documentary evidence.  2^nd OP is already set exparte.  Complainant filed argument note.

     Let us have a clear glance into the documents produced in order  to  answer the issues raised.  Only Exts.A1,A3,A4,A5,A7 required detailed discussion.  As per Ext.A1, it is seen that 2^nd OP advertised that the performance which is categorized and typical driving range is shown as 90-95 KMs and also stated that the vehicle can travel 100 kms on 4 hours charging.  The complainant claimed that his vehicle never meet the advertised milage but no documents produced by  the complainant to prove that his vehicle has less milage.  The complainant took expert opinion  which was marked as Ext.C1, reveals that vehicle was tested with new battery and display like percentage of remaining charge was not working properly and also specified the odometer reading.  But ,nowhere in the Ext.C1 is specifically stated that the inspected vehicle has any manufacturing or mechanical issues, but only stated that during the test run no other technical issues spotted.  That means the issues spotted described in clause 1& 2 of Ext.C1 ie, the only issues found by the expert.  From the Ext.C1  it is seen that annexure No.1 is the photograph of battery(Jasion Energy) and expert also stated that they tested the vehicle with new battery.  Hence it is  clear that 1^st OP provided new battery to complainant.  From Exts.A5&A7 it is seen that the vehicle costs Rs.301610/- but as per Ext.A3, it is seen that complainant transferred an amount of Rs.407125/- and as per Ext.A2 Rs.5000/- paid.  Hence as per Ext.A2&A3, total amount  paid to 2^nd OP is Rs.412125/- but invoices(Exts.A5&A7) indicates the payment of Rs.301610/-.  The complainant explained in the complaint that he paid an addition amount of Rupees one lakh to  2^nd OP for an additional  battery, but there is no  other evidence(tax invoice) before the commission  except Ext.A3.  During the cross examination PW1 deposed that 2^nd OP changed battery twice and as per Ext.C1 expert tested the vehicle  with a new battery and it is clear that there is  deficiency in service from the part of OPs.  The 1^st OP cannot be evaded from the responsibility by saying deficiency in service from 2^nd OP since 2^nd OP is the dealer of 1^st OP and 1^st OP specifically  admits the dealership.  As said above an amount of Rs.1,00,000/- paid to the 2^nd OP excluding the price of the vehicle even though 2^nd OP is set exparte.  Hence this commission  came into the a conclusion that 2^nd OP is  liable to pay Rs.1,00,000/- and both OPs are liable to provide a new battery and repair the vehicle in a road worthy condition of  free of cost .

   The complainant is entitled to get compensation as there is deficiency in service from the part of OPs.  Moreover, 1^st OP put a specific question to PW1 that  whether PW1 is ready to accept the vehicle after curing the defect and PW1 answered “No” to the question.  The vehicle is in the custody of 2^nd OP from 22/11/2021 and the vehicle was purchased on 19/2/2021.  The complainant stated that he purchased the vehicle to derive income for his livelihood.  The defect arise within the warranty period.  From 22/11/2021 the vehicle is in the custody of 2^nd OP.  So the complainant is entitled to get compensation as well as the defects get cured of free of cost.

          In the result the complaint is allowed in part.  The opposite parties are jointly and severally directed to  cure the defect  of the vehicle and provide a new battery and make the vehicle in a road worthy condition of free of cost .  The 2^nd opposite party is directed to pay  Rs.1,00,000/-which was paid by the complainant to 2^nd opposite party excluding the price money of  vehicle. The opposite parties 1&2 are also directed to pay Rs.20,000/- as compensation and Rs.5000/- as cost of litigation  to  the complainant.  In default  of curing the defect of the vehicle and failed to provide  a new battery, the opposite parties 1&2 are liable to pay Rs.3,01,610/- towards the price of vehicle to  the complainant  within 30 days of receipt of this order.  Failing which the   complainant is  at liberty to  execute  the  order as  per the  provisions  of Consumer Protection Act 2019.

Exts:

A1- Notice of advertisement

A2-Advance receipt

A3-Receipt of Co-OP bank Payyanur

A4-Certificate issued by legal metrology Dept.

A5- Tax invoice

A6- R.C

A7- Tax invoice

A8- copy of letter

C1- Commission report

PW1-Prakashan.M.V-complainant

Sd/                                                           Sd/                                                  Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR