SMT.MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by the complainant U/S 35 of the Consumer Protection Act 2019 for an order directing the OP’s to replace the defective vehicle with new one free from defects or to refund Rs.1,00,365/- with 15% interest from the date of purchase and Rs.1,00,000/- to the complainant towards the compensation for mental agony, physical strain and cost to the complainant for the deficiency of service and unfair trade practice on the part of OP’s.
The brief of the complaint :
The complainant had purchased an electric scooter Aura with chassis No.MZVBIAUML 21005688 Reg.No.KL59X7306 worth Rs.100365/- as per the invoice No.2021-427 dtd.18/12/2021 from 2nd OP. The vehicle has 3 year warranty and charger has one year warranty also. The complainant has purchased the vehicle on believing the advertisement of Ops 1&2 that the vehicle is free from all defects and will be provided effective and speedy after sale service. The vehicle was delivered on 24/12/2021. But the vehicle shows the defect of charging issue. It was taking more time to get charged and some time not charging fully after one month from the delivery itself. Then the complainant approached 2nd OP the manufacturer, and he told that it will be clear after regular use. But the charger got damaged completely, at the end of the July 2022 and the complainant brought it to 2nd OP on 1/8/2022. After depositing Rs.4500/-, 2nd OP provided spare charger to use till the original charger replaced saying that the original charger will be given back after repair and then the said amount will be refunded. After 2 months the 2nd OP give an old charger instead of the original charger given by the complainant and said amount has been refunded. The OP offered 140km per fully charged battery at the time of purchase. But never get 140 KM. For running 110 km it is to be charged for 4 hours per day to get the battery fully charged before the defect. But the charger given by 2nd OP after repair was not working properly . So the mileage that got before repair reduced to 40-50 KM and the complainant was not able to complete his daily journey. Hence the complainant approached 2nd OP on 17/10/2022 and they demanded to deposit Rs.4500/- again for spare charger. But the complainant was not willing to pay the said amount as the charger is still under warranty period. Then the complainant send a lawyer notice to OP’s on 25/10/2022. On 26/10/2022 the OP received the notice and apologised and requests to submit the complaint charger back the service centre Kuthuparamba or Kannur. Then the complainant went to 2nd OP on 7/11/2022 and received the defective charger and replaced another charger at free of cost which again got defective on 18/11/2022. On 28/11/2022 the complainant handed over the defective charger to 2nd OP. Then they told that maximum 4 days to get the delivery of the charger rectified. But not rectified the charger and they told that it will be given on 28/2/2023 only. The complainant again demanded to provide a spare charger for use but they demanded to pay Rs.4500/- also. From 18/11/2022 the vehicle is kept idle without using as there is no charge. The complainant is compel to hire autorikshaw from day to day journey from house to the office spending huge amount. The act of OP’s, the complainant caused much mental agony and financial loss. So there is deficiency of service and unfair trade practice on the part of OP’s. Hence the complaint.
After filing the complaint notice issued to both OP’s. 2nd OP received the notice and appeared before the commission and filed his written version .1st OP is called absent and set exparte. 2nd OP contended that the complainant purchased the vehicle believing the advertisement by Ops 1&2 to the effect that the vehicle is free from all defects and will be provided effective and speedy after sale service are in correct . Moreover the 2nd OP denied that at the time of delivery of the vehicle offered 140KM for a full charged battery. This OP demanded for security of Rs.4500/- for issuing spare charger, but the complainant was not willing to deposit such amount stating that it is the duty of the OP to give spare charger. This OP informed him that being the dealer he is authorised to collect defective charger and send it to the company for service. On 7/11/2022 the complainant brought the defective charger to the service centre of this 2nd OP and the OP collected the same after issuing the receipt and also mentioning the date for return after service. But after 4th day the complainant visited the OP’s service centre and charger not returned then he demanded a spare charger. This 2nd OP stated that for the charger there is warranty provided by the company and if at all any manufacturing defect is there the 1st OP is liable for the same. There is no deficiency of service and unfair trade practice from the part of 2nd OP and the complaint may be dismissed.
On the basis of the rival contentions by the pleadings the following issues were framed for consideration.
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled for any relief?
- Relief and cost.
The evidence consists of the oral testimony of PW1 and Exts. A1 to A5 were marked . No oral or documentary evidence from the side of OP”s.
Issue No.1 to 3 taken together:
The Complainant adduced evidence before the commission by submitting his chief affidavit in lieu of his chief examination to the tune of the pleadings in the complaint and denying the contentions in the version. The documents Exts.A1 to A5 were marked on his part to substantiate his case also. According to the complainant the complainant has purchased the electric scooter Aura on 18/12/2021. The tax invoice No.2021-427 is marked as Ext.A1. In Ext.A1 the total price contains Rs.100,365/-. In Ext.A2 is the notice send by complainant to 2nd OP dtd.25/10/2022. In Ext.A3 is the acknowledgment card. In Ext.A4 is the print out of mail by 2nd OP to complainant. In Ext.A5 is the repair order/estimate issued by 2nd OP to the complainant. In OP’s side PW1 was not cross examined by the OP’s and no documents or evidence adduced before the commission also. In OP’s side except the version of 2nd OP, no other evidence produced before the commission to prove their defense. On perusal of the pleadings and evidence we the commission hold that the complainant has purchased the electric scooter on 18/12/2021 and on 1/8/2022 the charger got damaged. After depositing Rs.4500/- the 2nd OP provided spare charger to use till the original charger replaced. The original charger will be given back after repair then the said amount will be refunded. Again on 17/10/2022 the complainant approached 2nd OP for the charger issue. Then the 2nd OP demanded again to deposit Rs.4500/-. But the complainant is not paid the amount and he send a notice to 2nd OP dtd.25/10/2022. Then 2nd OP send a reply on 26/10/2022 to charger back to the service centre Kuthuparamba or Kannur. On 7/11/2022 the 2nd OP replaced the charger and received the defective one also. But the charger also defective on 18/11/2022. On 28/11/2022 the complainant also approached to 2nd OP with charger complaint. But the 2nd OP is not cured the charger immediately but delivery time is shown as 28th February 2023. Then after 4 days the complainant went to 2nd OP’s service centre he demanded Rs.4500/- again for spare charger. From 18/11/2022 the vehicle is kept idle without using as there is no charge. So the complainant has compelled to hire autorikshaw for day to day journey from his house to the office and spending huge money as travel expenses. The OP’s not repair the charger with free of cost within the warranty period. Though the complainant alleged manufacturing defect of the vehicle, he has failed to adduce any expert evidence with regard to this point. It is the burden of complainant to prove his allegation. So we are of the considered view that the OP’s are jointly and severally liable to repair or replace the charger with free of cost under warranty. Since they failed to do so. We hold that there is deficiency of service and unfair trade practice on the part of OPs 1&2. Hence issue No.1 found in favour of the complainant and answered accordingly.
Issue No.2&3:
As discussed above the charger of the scooter was defective within an year , the OP’s are not repaired or replaced the charger within the warranty period. The electric scooter of the complainant was kept idle from 18/11/2022 without using as there is no charge. So we hold that the OP’s are directly bound to redressal the grievance caused to the complainant. So the complainant is entitled to get a new charger or replace a new charger free from defects and in working condition of the vehicle with free of cost. Therefore we hold that the opposite parties are jointly and severally liable to cure the defects of the vehicle to replace a new charger free from defects and in road worthy condition of the electric scooter with free of cost along with Rs.20,000/- as compensation for mental agony and other expenses incurred for travel to his house and office to the complainant and Rs.5000/- as litigation cost. Thus issue No.2&3 are also accordingly answered.
In the result the complaint is allowed in part directing the opposite parties jointly and severally liable to replace the charger in the electric vehicle with free of cost and the vehicle is free from defects in road worthy condition to complainant along with Rs.20,000/- as compensation for mental agony caused to the complainant and Rs.5000/- as litigation cost within 30 days of receipt of this order. In default, the amount of Rs.20,000/- carries interest@ 12% per annum from the date of order till realization , failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019.
Exts:
A1-Tax invoice
A2-copy of notice by PW1 to 2nd OP
A3- acknowledgment card
A4- print out of mail by 2nd OP to PW1
A5-repair order/estimate issued by 2nd OP
PW1-Satheesan.P- complainant
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva /Forwarded by Order/
ASSISTANT REGISTRAR
