Puppala Ramesh, s/o.Satyanarayana, age: 32 years, occu: Rural Medical

Practitioner, r/o.H.No.19-2-69, Jagadish colony, Bhadrachalam of

Khammam District.

…Complainant

and

1. Cynosure Enterprises Ltd., Corporate Office & Factory, Black No.11,

A-28/1/11B, IDA Nacharam, RR District, Hyderabad-501507, A.P.,

India, rep. by its Managing Director, Srinivasa Rao.



2. Mahi Motors, Yash E-bike, D.No.4-2-15, Main Road, Bhadrachalam-

507111, Khammam District, A.P., India.



…Opposite parties.



O R D E R



1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The averments made in the complaint are that the complainant is physically challenged person and rural medical practitioner and purchased Yash e-bike on 10-2-2007 for an amount of Rs.25,000/- by attracting the vide publicity of the opposite parties that the Yash e-bike is durable with low maintenance and the opposite parties also stated that the vehicle run for 60 kilometers once it was charged and at the time of purchase it was stated that the bike runs without any maintenance and gave warranty period for one year from the date of its purchase. In fact the vehicle ran for six months with low mileage and after that, the vehicle was struck due to failure of controller and battery.


The complainant submitted that he made several rounds to the opposite party Nos.1 and 2 with a complaint of failure of controller and battery, the opposite parties sent their mechanic for making repairs and after verification, the company mechanic taken away some spare parts, controller and battery in the month of October, 2007 and assured that he will replace the same within one week. Inspite of rectifying the defects, there is no response from the opposite party.


Accordingly the complainant issued notice on 21-3-2008 through consumer welfare society, Bhadrachalam, having received the same, the opposite party No.1 failed to provide any services to the complainant. As such the complainant suffered a lot and filed the present complaint by praying the Forum to direct the opposite parties to pay an amount of Rs.25,000/- towards cost of vehicle and to pay compensation of Rs.1,00,000/- towards mental agony and costs.

2. Along with the complaint, the complainant filed his affidavit and also filed the following documents;

(i) Original Cash receipt, dt.10-2-2007 for Rs.25,000/-

(ii) Tax invoice, dt.10-2-2007 for Rs.24,990/- issued by opposite party No.2

(iii) Authorisation issued by the complainant to the

Consumer Welfare Society, Bhadrachalam.



(iv) Xerox copy of Warranty Card,

(v) Xerox copy of broucher of the vehicle

(vi) Representation, dt.21-3-2008 addressed by the Consumer Welfare Society,

Bhadrachalam to the opposite party No.1.



3. After registering the complaint, the notice was served to the opposite parties, having received the same, the opposite party No.1 did not turn up to contest the matter and the opposite party No.2 appeared through its counsel, but failed to file counter.

4. In view of the aforesaid averments, now the point for consideration is, whether the complainant is entitled to any relief as prayed or not?

POINT:

5. As seen from the averments of the complaint, the complainant purchased Yash e-bike on 10-2-2007 by paying an amount of Rs.25,000/- to the opposite parties and at the time of purchase, the opposite parties given one year warranty on the said vehicle and the complainant believed the words of opposite party that it gives 60 KMs. mileage once it was charged without petrol with low maintenance and after expiry of 6 months from the date of purchase, the vehicle started giving troubles with a problem of failure of controller and battery, due to which the vehicle was not in a position to drive.


As such the complainant approached the opposite party many a times for rectification of the repairs and the mechanic of the opposite parties came to the complainant, verified the vehicle and taken away the controller, battery and some spare parts and stated that he will replace the same within a week, inspite of lapse of assured period, there was no response from the opposite parties. As such the complainant prayed for redressal on his grievance. In support of his complaint, the complainant filed cash receipt dt.10-2-2007 for Rs.25,000/- and also filed warranty card of the said vehicle.


According to the warranty card, it was clearly mentioned that there is a warranty/guarantee on the battery and controller and as seen from the averments of the complaint, the complainant purchased the vehicle on 10-2-2007 and the mechanic of the opposite parties taken away the controller, battery and some spare parts of the vehicle in the month of October, 2007. As such it clearly shows that the vehicle got repairs within the warranty period i.e. within 8 to 9 months from the date of purchase. As such we feel that if there is any defect in the vehicle, it is the duty of the opposite parties to rectify the defects by way of replacement of new parts as assured and it is also a duty to provide proper services to its consumers.

6. In view of the above circumstances, we feel that the opposite party had not properly responded to attend the services of the complainant within the warranty period of the vehicle and they failed to give proper services to the complainant. As such it is a fit case to allow the complaint in favour of the complainant, as there is deficiency of service on the part of opposite parties. As such the point is answered accordingly in favour of the complainant.

7. In the result, the complaint is partly allowed and the opposite parties are directed to rectify the defects if any in the battery and controller of the Yash e-bike of the complainant by way of replacing the old parts with new parts and also provide proper services to the complainant as assured. The opposite party further directed to pay an amount of Rs.1,000/- towards damages and an amount of Rs.500/- towards costs of the litigation.

S. Chiranjeevulu,

S/o. S.Ramachandraiah,

Hindu, aged about 30 years,

D.No. C Type 63, Desuru Kandriga,

Kammapalle Post,

Ramachandrapuram Mandal,

Chittoor District. … Complainant



Vs



1. The Manager,

CYNOSURE ENTERPRISES Ltd.,

Corporate Office & Factory,

Block No.11, A-28/1/11B,

IDA Nacharam,

Ranga Reddy District,

Hyderabad – 501 507.



2. A.Kishore,

Manager,

SIVA SAI ENTERPRISES,

Plot No.5, 4th Floor, F3, Green Park Apartment,

D.R.Mahal Road, Tirupati. ...… Opposite parties.





ORDER





This complaint is filed under Section-12 of Consumer Protection Act 1986, to pass an order directing the opposite parties to get the vehicle YASH Docile e-bike repaired properly by replacing the defective parts i.e., functioning of the controller, charger and battery (or) in the alternative to pay the value of the vehicle i.e. Rs.28,800/- (Rupees twenty eight thousands eight hundred only), to pay a sum of Rs.50,000/- (Rupees fifty thousands only) towards damages for causing mental agony and to pay the costs of the complaint to the complainant and grant such other reliefs as the Hon’ble Forum may deem fit and proper in the circumstances of the case.

2. The factual matrix leading to filing of this complaint is set-out hereunder:-

a. The case of the complainant is that the 1st opposite party is the manufacturer and the 2nd opposite party is the dealer of two wheeler vehicle YASH Docile e-bike.


The complainant purchased YASH Docile e-bike from the 2nd opposite party on 30.06.2008 for a sum of Rs.28,800/- (Rupees twenty eight thousand and eight hundred only) (including all taxes) for which the opposite party issued a cash bill on the same day, which contains the particulars namely Engine, Chassis, Motor, Controller and Charger Numbers. The 2nd opposite party also issued a warranty card duly to the complainant. According to the terms of the manual given to the complainant at page.4 it is clearly recited that CYNOSURE ENTERPRISES Ltd., will repair or replace at their authorized workshops free of charge within a period of one year from the date of sale of YASH Docile to the first owner.


As per the service book, the first service to the above said vehicle was made on 11.08.2008. Thereafter by the time of second service, the 2nd opposite party closed the shop and the above said vehicle also picked up defects in controller, charger and battery. The empty service cards for the remaining two free services apart from five paid services are filed herewith and the same may be read as part and parcel of this complaint. Immediately, the complainant intimated about the defects occurred in the above said vehicle to the 2nd opposite party on various occasions i.e., on 17.11.2008, 03.12.2008 and 29.01.2008 pertaining to non-functioning of controller, charger and battery.


It is also submitted by the complainant in para.5 of the complaint that all the defective parts i.e. controller, charger and battery will come under the guarantee provided by the said opposite parties for one year from the date of purchase of the said vehicle. So, the above said vehicle was purchased on 30.06.2008 and the complainant can avail guarantee up to 30.06.2009. So, even till to the date of filing of the present complaint by the complainant on 26.03.2009 the guarantee period was in force. Inspite of complainant’s requests to get the above said vehicle repaired or replaced as per the terms of the manual, the opposite parties could not come forward and they failed to comply with its terms.

b. In para.7 of the complaint of the complainant it is mentioned that at present the above said vehicle is kept idle. Since there is no dealer or anybody on behalf of the company to comply with the terms of the manual at Tirupati. So, there is no other option for the complainant except to make a complaint to the 1st opposite party. It is due to deficiency in service on the part of opposite parties, the complainant has to keep the vehicle idle right from second service onwards without making use of it. The opposite parties are liable to get the vehicle repaired or replace the defective parts according to the terms and conditions of the guarantee.


So, the complainant is suffering like anything and he is put to mental agony, and as much as he is a private employee, being a computer operator, he could not attend his works properly and it leads to loss of income also. The complainant herein got issued legal notice dt:21.02.2009 to the opposite parties, but the 1st opposite party having acknowledged the same neither complied nor replied. Whereas the 2nd opposite party acknowledged and issued reply notice dt:05.03.2009 denying the averments in the said legal notice. Hence the complaint.

3. In response the 1st opposite party filed written version / counter before this Forum on 27.05.2009. Whereas the 2nd opposite party filed written version with affidavit on 24.06.2009 denying the allegations in the complaint filed by the complainant. According to the 1st opposite party the complaint has been filed by the complainant alleging deficiency in service and claiming compensation. But the allegation is that after the two free services the 2nd opposite party closed the business and 1st opposite party is denied it for want of knowledge about that fact.


The 1st opposite party is not aware of the non-functioning of the controller, charger and battery and about them is not intimated to the 1st opposite party by the complainant at any point of time. As per the User’s Manual if there is any defect in the service by the dealer, the consumer shall intimate the same to the manufacturer by feed back form which is given to the customer. The complainant / customer failed to do the same. It is true that Yash e-bike contains Motor, Controller, Charger and battery along with other accessories.


The 1st opposite party / manufacturer has given guarantee for one year for Motor, Controller and Charger and ten months guarantee to the battery of the above said vehicle. The parts of the vehicle which contains in the petition are not within the knowledge of 1st opposite party. The 1st opposite party is always ready and willing to replace the guaranteed parts (3 parts) of the vehicle. It is further contented by the 1st opposite party that the complainant effectively used the vehicle for more than five months. The 1st opposite party is ready and willing to replace the battery for five months and other guaranteed parts for seven months, and ready and willing to provide service to the complainant.


The other prayer about compensation for mental agony of Rs.50,000/- is improper. The actual cost of the above said vehicle is only Rs.26,000/-. The dealer (2nd opposite party) is not the agent of the manufacturer and 1st opposite party is ready to replace the defective parts. It is also mentioned in the written version of the 1st opposite party that the present Mechanic (Local) and Service Agent, M/s.Yasdan Interior and Exteriors, Amaravathi Nagar, M.R.Palle Road, Tirupati.

(b). According to the contents of counter / written version of 2nd opposite party, the complaint is not maintainable either in law or in facts. The 2nd opposite party does not admit any of the allegations mentioned in the complaint except those that are specifically admitted therein, that the complainant is put to strict proof of the same. The allegations in para.3 of the complaint that the 2nd opposite party is a dealer of two wheeler vehicle is utter false and the 2nd opposite party worked as a Manager in Siva Sai Enterprises, Tirupati, for some time and came out of the enterprises and hence he is no way connected to the responsibilities and liabilities of the concerned Siva Sai Enterprises, Tirupati, and hence he is not a proper and necessary party in this complaint.


The 2nd opposite party got issued reply notice dt:05.03.2009 to the notice dt:21.02.2009 sent by the complainant. The 2nd opposite party was added as a party to the complaint by the complainant to harass him, and the complaint is liable to be dismissed against 2nd opposite party. There is no deficiency in service on the part of opposite party No.2, and he is not a dealer and only a worker (Manager), and hence the complaint is not maintainable against him and it is liable to be dismissed in limini.

4. In support of the averments made in the complaint, the complainant filed his affidavit. The complainant also filed 6 documents, which are marked as Exs. A1 to A6. Ex.A1 is cash receipt dt:30.06.2008 issued in favour of the complainant by the 2nd opposite party. Ex.A2 is the Yash e-bike User’s Manual issued by the 1st opposite party in favour of the complainant. Ex.A3 is the office copy of legal notice dt:21.02.2009 got issued by the complainant’s advocate on behalf of the complainant to the opposite parties. Ex.A4 are the postal receipts dt:21.02.2009 in favour of the complainant by the postal authorities, Tirupati. Ex.A5 are the postal acknowledgements from the opposite parties 1 and 2 and Ex.A6 is the reply legal notice dt:05.03.2009 issued by and on behalf of 2nd opposite party to the complainant’s advocate, Tirupati.

5. In support of the averments made in the written version of the opposite parties and the opposite parties also filed affidavits in support of their case / defence. No documents filed by them for the reasons best known to the opposite parties.

6. The written arguments filed on behalf of the complainant by the learned counsel for the complainant in support of his case. No written arguments filed on behalf of the opposite parties by the learned counsel.

7. On the basis of the pleadings and documentary evidence, the points that arise for our determination of this consumer case are that:-

1. Whether there is any deficiency in service on the part of opposite parties towards the complainant?

2. Whether the complainant is entitled to the reliefs as prayed for? If so, to what extent?

3. To what relief?

8. Point No.1:- (a) The basic facts of this consumer case is not disputed and hence they are not reproduced once again here. Both the parties reiterated the facts and circumstances of the case in the affidavits also apart from the complaint as well as written version respectively. The learned counsel for the complainant Sri.Marri Subramanyam has vehemently argued on behalf of the complainant that the 1st opposite party is the manufacturer and the 2nd opposite party is the dealer of two wheeler vehicle namely YASH Docile e-bike.


The complainant purchased the said vehicle from 2nd opposite party on 30.06.2008 for a sum of Rs.28,800/- (including all taxes) for which the 2nd opposite party issued a cash bill (Ex.A1) on the same day which contains the particulars regarding engine, chassis, motor, controller and charger in favour of the complainant. He also further argued that 2nd opposite party issued a warranty card in favour of the complainant. According to the terms and conditions of the User’s Manual (Ex.A2), it is clearly recited in page No.4 that Cynosure Enterprises Ltd will repair or replace at their authorized workshops free of charge within a period of one year from the date of sale of the said vehicle to the first owner.


He also further argued that as per the User’s Manual (Ex.A2), the first service was made to the said vehicle on 11.08.2008 and thereafter by the time of 2nd service, the 2nd opposite party closed the shop and complainant used only 1st service for the said vehicle. The above said motor-cycle also picked up the defects in controller, charger and battery. The empty service coupons for the remaining 2 free services apart from 5 paid service to the said vehicle are available at User’s Manual (Ex.A2).


He also further argued that the complainant had intimated about the defects occurred in the said vehicle to the 2nd opposite party on several occasions i.e. 17.11.2008, 03.12.2008 and 29.01.2009 pertaining to non-functioning of controller, charger and battery. The complainant can avail guarantee up to 30.06.2009 and it is in force till the date of filing of this complaint by him against the opposite parties. Inspite of his request to get the said vehicle repaired or replace the said parts to it, the opposite parties could not come forward and failed to comply with the terms and conditions of the User’s Manual (Ex.A2) for the reasons best known to them.


The said vehicle is now kept idle. The opposite parties are liable to get the vehicle repaired by replacing the defective parts as per the terms of the guarantee card issued to the complainant by the opposite parties. The complainant is a Computer Operator and is unable to attend his work properly within the time and that leads to loss of income also. He is suffering mentally and there is a gross negligence and deficiency in service on the part of the opposite parties. Hence, the complainant is entitled to get the reliefs sought for in this complaint.

(b). In response, the learned counsel Sri.J.Parthasarathy, on behalf of the 1st opposite party has also argued that the 1st opposite party is admitting sale of the said vehicle to the complainant. The 1st opposite party is not aware of the non-functioning of the said parts of the vehicle and the same is not intimated to them by the complainant. He further argued that the manufacturer has given guarantee for one year for motor, controller and charger and ten months guarantee to the battery of the said vehicle. He also further argued that 1st opposite party is ready and willing to replace the above said three parts for the said vehicle. The prayer for seeking compensation in the complaint by the complainant is improper and the actual cost of the vehicle is only Rs.26,000/-. The dealer is not the agent of the manufacturer.

(c). The learned counsel for the 2nd opposite party Sri.G.Vijaya Varma has also vehemently argued that 2nd opposite party is not a proper and necessary party in this consumer case filed by the complainant. The 2nd opposite party is not a dealer and worked for some time as a Manager and came out of the 2nd opposite party’s office. He is no way connected with the rights and liabilities of the 2nd opposite party. The 2nd opposite party had given suitable reply notice dt:05.03.2009 (Ex.A6) to the complainant. The complaint is not maintainable against the 2nd opposite party and hence it is to be dismissed with costs.

(d). We have heard the learned counsel and gone through the record carefully. The only point is for our consideration in this consumer case is that whether 1st opposite party is discharged his duty according to the terms and conditions of the User’s Manual (Ex.A2) towards the complainant?. The complainant has filed 6 documents which are marked as Exs.A1 to A6 in support of his case.


According to Ex.A2 (User’s Manual), there it appears that 1st free service availed by the complainant and other coupons are still un-used by him, and it shows clearly that there is no possibility for him to get the services from the opposite parties thereafter. It is clearly admitted in the written version of the 1st opposite party is that he is ready and willing to replace the three parts as alleged by the complainant in his complaint. It seems that the said vehicle is kept idle and for want of repairs to it and there is no possibility for the complainant to ride his vehicle with defective condition of it.


There is no response for complainant’s legal notice (Ex.A3) denying his liability by the 1st opposite party. So, it is clearly got to show that there is deficiency in service and negligence on the part of the 1st opposite party. The 1st opposite party is liable to compensate the complainant suitably apart from replacing the defective parts as agreed by 1st opposite party to the complainant. Mental agony cannot be measured in terms of money. The complainant what has alleged and also proved by documentary evidence (Exs.A1 to A6) and established deficiency in service on the part of the 1st opposite party. This is a clear case of deficiency in service on the part of 1st opposite party.


By simply admitting about the insufficient service rendered by the 1st opposite party and promising to replace the required parts alleged in the said vehicle is not sufficient and it should be immediately complied with, without any delay. Already sufficient delay is caused to the complainant by the 1st opposite party and suitably to be compensated for abnormal delay. In the interests of justice, it is reasonable to award compensation of Rs.3,000/- (Rupees three thousands only) for mental agony of the complainant. This point is answered accordingly in favour of the complainant.

9. Point No.(2):- In view of the facts and circumstances of the case discussed above in point No.1, it is reasonable in the interests of Natural Justice, the complainant is entitled to get the reliefs adequately. So, the complainant is entitled to get the vehicle repaired properly by replacing the said parts i.e., controller, charger and battery (or) in the alternative he is also entitled to get the cost of the vehicle as per Ex.A1 (Rs.28,800/-). He is also entitled to get compensation of Rs.3,000/- (Rupees three thousands only) towards mental agony suffered by him. He is also entitled to get the costs of the complaint of Rs.1,500/- (Rupees one thousand five hundred only) from the 1st opposite party. With regard to 2nd opposite party, as he is un-necessary party to this consumer case, and hence the complaint against 2nd opposite party is dismissed without costs. This point is answered accordingly.

10. Point No.(3):- In the result, the complaint of the complainant is allowed in part directing the 1st opposite party to get the vehicle YAS Docile e-bike repaired properly by replacing the defective parts i.e. functioning of the controller, charger and battery or in the alternative to pay the value of the said vehicle of Rs.28,800/-(Rupees twenty eight thousand eight hundred only) and also to pay Rs.3,000/- (Rupees three thousand only) towards compensation for mental agony and also to pay Rs.1,500/- (Rupees one thousand five hundred only) towards costs of the complaint to the complainant within six weeks from the date of receipt of copy of order or else 12% interest on the amount awarded to the complainant will be payable to him. The complaint against 2nd opposite party is dismissed without costs. This point is answered accordingly.