| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.401 of 01-07-2016 Decided on 06-11-2018 Baldev Singh aged about 83 years S/o Pola Singh R/o Village Killianwali, Tehsil Abohar, District Fazilka. ........Complainant Versus 1.Agroia Automobiles Company, SCF 37 Bharat Nagar, Bibiwala Road, Bathinda through its Prop. Basant Singh Agroia R/o # 13333, Street No.9-A Suraj Basti Near Cole Chakkar, Ganesha Basti, Bathinda Tehsil and Distt. Bathinda. 2.Tunwal Electronics, Office No.25, 1st Floor Kaka Saheb, Gadgil Road, 409 Shanivar Path, Pune Maharashtra-411030, through its Authorized Signatory. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Sh.Jarnail Singh, Member. Smt.Sukhwinder Kaur Member Present:- For the complainant: Sh.Jasvir Singh, Advocate. For opposite party No.1: Sh.Sandeep Baghla, Advocate. Opposite party No.2: Ex-parte. ORDER M.P Singh Pahwa, President The complainant Baldev Singh (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Agroia Automobiles Company and Other (here-in-after referred to as opposite parties). Shorn of unnecessary details, brief facts of the case of complainant are that being in need of auto start/self start vehicle for personal necessity of the complainant and being persuaded by advertisements of opposite parties regarding the bike, manufactured by opposite party No.2, the complainant made up his mind to purchase one e-bike from opposite party No.1, manufactured by opposite party No.2. Accordingly, he purchased one bike of Tunwal Electronics for Rs.45,300/- vide bill/money receipt No.001 dated 8.2.2016 from opposite party No.1 (the authorized service stockiest of opposite party No.2) for his personal use. It is alleged that shortly, after purchase of the bike, it was noticed that the average of running with charged battery is not more than 10 Kms. The batteries installed in e-bike were not charging properly and adequate power was not restoring. The complainant was not able to use e-bike more than 800 Kms. Thereafter the battery of e-bike becomes defunct. The complainant approached opposite party No.1 by making calls on various occasions in the early days of April 2016, but opposite party No.1 used to assure that it has informed opposite party No.2 and service engineers of opposite party No.2 will approach the complainant, but no one turned to redress his grievances. It is further alleged that ultimately, having no other option, the complainant got served the legal notice dated 14.5.2016 through his counsel vide registered letter dated 20.5.2016 at the address of opposite party No.1. The registered letter sent to opposite party No.1 was received back with remarks 'Addressee has left'. Another registered letter sent to opposite party No.1 was also received back with the remarks 'House is locked'. It is further alleged that due to manufacturing defect in e-bike, the complainant felt immense pressure on his mind. He was feeling harassment, humiliation, mental tension and agony etc. For these sufferings, he has claimed compensation to the tune of Rs.30,000/-. He has also prayed for refund of Rs.45,300/- being price of e-bike and Rs.22,000/- as cost of litigation. Hence, this complaint. Upon notice, none appeared on behalf of opposite party No.2. As such, ex-parte proceedings were taken against it. Opposite party No.1 appeared through its counsel and contested the complaint by filing its written version. In the written version, opposite party No.1 has raised the legal objections that the complaint is not maintainable in its present form. The intricate and contentious questions fact and law are involved in this complaint. They require extrinsic oral and voluminous documentary evidence. As such, the matter cannot be decided by way of summary jurisdiction. The complainant is not 'consumer' as defined U/s 2(d) of 'Act'. Opposite party No.2 is the manufacturer of the vehicle. There is no liability qua opposite party No.1. No warranty of the vehicle is given by opposite party No.1. In case of any alleged fault or imperfection, it is opposite party No.2, who is liable. Opposite party No.1 is the stockiest/agency of opposite party No.2. Opposite party No.2 being the 'principal' as per the stockiest agreement, any such alleged liability is to be undertaken by it. It is further revealed that opposite party No.1 has also got issued legal notice dated 1.10.2016 against opposite party No.2 for breach of terms of stockiest agreement dated 11.8.2015. The civil suit is also being filed by opposite party No.1 against opposite party No.2. The complaint is false, frivolous and vexatious and it is liable to be dismissed. On merits, it is stated that advertisement so floated was as per proforma provided by opposite party No.2 and in accordance with terms of stockiest agreement dated 11.8.2015. It is denied that the complainant was allured and assured by opposite party No.1 as alleged. The features of the vehicle had been provided by opposite party No.2 and opposite party No.1 has no concern with the same. It is admitted that the complainant purchased e-bike, manufactured by opposite party No.2. It is also asserted that the running of vehicle and charging of battery are the features and standard equipments as provided by opposite party No.2 being the manufacturer. Opposite party No.1 has acted merely as agent of opposite party No.2. As per opposite party No.1 also, there is breach of obligation and terms of agreement on the part of opposite party No.2 quo which legal notice has been served by opposite party No.1. The alleged manufacturing defect is liability of the manufacturer and there is no liability of opposite party No.1. All other averments of the complainant are denied. In the end, opposite party No.1 has prayed for dismissal of complaint. Parties were asked to produce the evidence. In support of his claim, the complainant has tendered into evidence his affidavits dated 1.1.2016 and 15.5.2017, (Ex.C1 and Ex.C2); photocopy of pamphlet, (Ex.C3); photocopy of payment receipt, (Ex.C4); photocopy of visiting card, (Ex.C5); photocopy of retail invoice, (Ex.C6); photocopy of report, (Ex.C7); photocopies of photographs, (Ex.C8 and Ex.C9); Letter, (Ex.C10); photocopy of agreement, (Ex.C11) and closed the evidence. To rebut the claim of the complainant, opposite party No.1 has tendered into evidence affidavit of Basant Singh dated 31.7.2017, (Ex.OP1/1); photocopy of plaint, (Ex.OP1/2); photocopy of legal notice, (Ex.OP1/3); photocopy of pamphlet, (Ex.OP1/4); affidavit of Ashok Kumar dated 7.9.2017, (Ex.OP1/5); photocopies of gate pass and receipt, (Ex.OP1/6 and Ex.OP1/7) and submitted written arguments. We have heard learned counsel for parties and gone through the file as well as written arguments submitted by learned counsel for opposite party No.1. Learned counsel for complainant has reiterated his averments as taken in the complaint and detailed above. It is further submitted by learned counsel for complainant that admittedly, e-bike was purchased from opposite party No.1, manufactured by opposite party No.2. The complainant has pleaded that the battery was not as per specifications and it was not having sufficient back-up. There is no specific denial to this fact. Opposite party No.1 has rather pleaded that opposite party No.2 is liable for manufacturing defect, if any. It has also tendered into evidence affidavit of Ashok Kumar, (Ex.OP1/5), although, to prove that battery of e-bike purchased by Ashok Kumar was also replaced by the manufacturing company, but this fact further proves that the battery was not having back-up as promised. Therefore, the defect in the battery stands proved from this evidence also. The e-bike was purchased from opposite party No.1. Opposite party No.1 has acted as an agent of opposite party No.2. Therefore, opposite party No.1 cannot escape from its liability to the claim of the complainant. The e-bike was purchased in the year 2016. As opposite parties have failed to redress the grievances of the complainant, therefore, the complainant has purchased the battery for Rs.11,800/- on 1.10.2016. This fact also corroborates the version of the complainant. To support these submissions, learned counsel for complainant has cited Balaji Motors Vs. Devendra & Anr., 2013(2) CPJ 534 to submit that the dealer cannot escape from its liability to attend the complaint made within the warranty period. On the other hand, learned counsel for opposite party No.1 has submitted that there was no guarantee/warranty by opposite party No.1. The e-bike was manufactured by opposite party No.2. Therefore, opposite party No.2 is liable for manufacturing defect, if any. The affidavit of Ashok Kumar, (Ex.OP1/5) proves that he got the battery replaced from the manufacturer. Therefore, no relief can be granted from opposite party No.1. To support these submissions, learned counsel for opposite party No.1 has cited Classic Automobiles Vs. Lila Nand Mishra and Anr., 2010(1) CPJ 235 wherein it was observed that dealer not be held liable, unless it is shown that the vehicle was sold by the manufacturer on the principal to principal basis, liability for manufacturing defect has to be imposed only on the manufacturer. He has also cited Maruti Suzuki India Ltd. Vs. Dr.Koneru Satya Kishre & Ors., 2018(1) CPJ 157 to support his contentions. We have given careful consideration to these rival submissions and gone through the case law cited by learned counsel for parties. Admitted facts are that the complainant purchased e-bike from opposite party No.1, manufactured by opposite party No.2. Pamphlet, (Ex.C3) proves that opposite parties claimed battery life 20000 Km. and battery charging time 4 to 5 hours. The averment of the complainant is that the performance of the battery was not as per claims made by opposite parties. This fact is not disputed by opposite parties. Opposite party No.1 has rather pleaded that advertisement was as per proforma provided by opposite party No.2. Opposite party No.1 has tendered into evidence affidavit of Ashok Kumar, (Ex.OP1/5), although, to prove that the battery was replaced by the manufacturer. This fact also proves that the performance of the battery was not as per claims made by opposite parties. Opposite party No.2 has also not come forward to contest the claim of the complainant. Therefore, it stands proved that the battery was defective and it was not giving performance as claimed. Now, question is regarding relief for which the complainant is held entitled to. He has requested for refund of price of e-bike or its replacement with new one. The defect was stated only regarding functioning of the battery. The complainant has placed on record copy of invoice, (Ex.C6), which proves that he has also purchased another battery by spending an amount of Rs.11,800/-. In these circumstances, the complainant can be held entitled to recovery of Rs.11,800/-. There is nothing to show that the relationship between opposite parties is on principal to principal basis. Therefore, both opposite parties are jointly and severally liable for deficiency in services. For the reasons recorded above, the complaint is partly accepted with Rs.5000/- as cost of litigation against opposite parties. Opposite parties are directed to refund an amount of Rs.11,800/- to the complainant. The compliance of this order be made jointly and severally by opposite parties within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced:- 06-11-2018 (M.P Singh Pahwa) President (Jarnail Singh) Member (Sukhwinder Kaur) Member
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