Haryana

Ambala

CC/96/2023

SARASWATI DEVI. - Complainant(s)

Versus

MAHINDRA MOTORS. - Opp.Party(s)

RAJESH ATRI,ADV

16 Aug 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	96 of 2023
Date of Institution	:	01.03.2023
Date of decision	:	16.08.2024

Saraswati Devi aged 55 yrs w/o Avdesh Giri aged about resident of # 172, Jaggi Colony, Ambala City, Distt. Ambala

…..Complainant

Vs.

Mahindra Motors, Chandigarh Road, Baldev Nagar, Ambala, District Ambala (Haryana), Through its Director/Manager/Authorized Signatory  

….…. Opposite party

Before:        Smt. Neena Sandhu, President.

                      Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

Present:       Shri Gopal Krishan Gupta, legal aid counsel for the complainant.

                   Shri Veerinder Pal Singh Duggal, Advocate, counsel for OP.

 

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To replace the damaged charger, battery and shockers of the e-bike in question.
2. To pay Rs.1,00,000/-, as compensation for adoption of unfair trade practice by the OP by selling e-bike in question having manufacturing defect.
3. To pay Rs.50,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.
4. To pay Rs.35,000/- as litigation expenses.  
382.  

Grant any other relief, which this Hon’ble Commission deems fit.

 

2.             Brief facts of this case are that the complainant was in a need of an electronic bike for her personal use. When she came in knowledge of the name and promise/claim of the OP, she approached to the office/showroom of the OP on 07.03.2022 along with her son Santosh Giri. On the said date, the owner/proprietor along with his sales man showed an electric vehicle of brand TOXMORAVE which is introduced to be the best electronic bike with no complaints. It was assured by the OP that this is best product to provide better ride quality and smooth functioning etc. After the assurance and promise of owner of the OP, the complainant purchased the above mentioned electronic bike (in short the vehicle) from the  OP  by paying Rs.40,000/- through cash mode and the OP   billed the same in the name of complainant by issuing invoice no. AA1190 dated 07.03.2022. The said vehicle carried a warranty of one year. The complainant started using the e-bike which was purchased for her personal use and keep it with proper care and protection as instructed by the OP. After using it for 2 months the above said e-bike started making lot of problems and complainant faced so many issues regarding the charger and battery of the same. It also started giving big problem of shockers while driving/riding. The complainant visited to the agency/OP for getting solutions or repair of these above detailed problems from them but officials including owner of the OP did not take it seriously and again gave false assurance to the complainant that this is a minor problem, which will be resolved in next service and complainant believed it and kept waiting for next service. After some time, on 19.11.2022 in afternoon when the complainant tried to charge her e-bike then it came into the knowledge of the complainant that charger is not working and not charging the e- bike and was not functioning. Due to that the battery was also not functioning properly. Though the bike was purely electronic and runs through battery and when the battery was not working properly and charger was not charging the battery, the e bike is not of use. She therefore requested the OP to repair her vehicle but to no avail. Even job cards were not prepared by the OP in respect of the defects in the said vehicle.  Ultimately, the OP flatly refused to change the battery and charger of vehicle.  Hence this complaint.   
3.           Upon notice, OP appeared and filed written version and raised preliminary objections to the effect that the complainant has filed the present complaint on false and frivolous averments just to blackmail the OP; that the complainant had never approached the OP after the purchase of the said Bike nor made any complaint about the functioning of the said Bike as such the Bike in question is running smoothly without any defect; since integrate question of law and facts is involved in the present controversy as such the present complaint is not maintainable before this Hon'ble Commission therefore the same is liable to be dismissed on this score alone etc.  On merits, it has been stated that the complainant is debarred from filing the present complaint by her own act and conduct as the complainant has not used/run the said Electronic Bike in a prudent manner. After the purchase of the said Electronic Bike, the complainant never got it serviced which was required for its smooth running. As per norms the said Bike requires service after every four months but in the present case the complainant has never approached the  OP  to get the said Bike serviced as such the conduct of the complainant debars the complainant to file and present the present Complaint. As a matter of fact the mal functioning of the Charger or the Battery must be due to the reason that the Bike in question was never subjected to service which is required after every four months. Rest of the averments of the complainant were denied by the OP prayed for dismissal of the present complaint with costs.
4.           Complainant tendered her affidavit as Annexure CW1/A alongwith documents as Annexure C-1 and C-2 and closed the evidence of the complainant. Learned counsel for the OP tendered affidavit of Paramjeet Singh, Partner of OP-Mahindra Motors, Chandigarh Road, Baldev Nagar, Ambala City as Annexure RW1/A and closed evidence on behalf of the OP. 
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file.  
6.           Learned counsel for the complainant has submitted that it was on account of manufacturing defect in the vehicle in question that its charger, battery and shockers went defective within the warranty period, yet, the OP failed to either replace the said defective parts nor refunded the amount paid by the complainant, as such, they are deficient in providing service and indulged into unfair trade practice.
7.           On the other hand, learned counsel for the OP while reiterating the objections raised in their written version submitted that the complainant has failed to bring the vehicle in question for its service for more than a year. He further submitted that the complainant has failed to place on record even a single evidence to prove that there is any defect in the said vehicle.
8.           The question which falls for consideration is, as to whether, there was any manufacturing defect in the vehicle or not. It is significant to mention here that though in her complaint, the complainant has leveled allegations to the effect that the charger, battery and shockers of the vehicle in question went defective within the warranty period and that the said vehicle is suffering from manufacturing defects, yet, no evidence in that regard has been produced on record. On the other hand, to prove her case, the complainant was required to place on record the copy of job card(s), to establish that she reported the alleged defects to the OP and landed her vehicle with it for repairs, but she failed to do so.  At the same time, it is the definite case of the OP that the complainant has failed to bring her vehicle for free services, after purchase of the same, starting from first four months onwards. This plea taken by the OP stands unchallenged by the complainant. We have also gone through the original tax invoice dated 07.03.2022, Annexure C-1 and found that it has been clearly mentioned on it as “Free Service every 4 months”, meaning thereby that the complainant was required to take the vehicle for service after every 4 months which she failed to do. Thus, if the complainant herself is at fault to take care of  her vehicle by getting the same serviced from the OP and plied the same without service, now she cannot blame the OP in the matter. In our considered opinion, when a manufacturing defect is alleged in any good/product, the onus of proof has to be on the complainant, which in the present case is find missing.  In 2017 (3) CPR 24 (NC) [Baljit Kaur Vs Divine Motors and Anr.] the Hon'ble National Commission dismissed the Revision Petition filed by the petitioner-Baljit Kaur by holding as under:-

 

"….While it is true that this has no relation with any manufacturing defect, it is also true that the manufacturing defect as alleged has not been proved before the fora below, by reference to any expert report in this regard. When a manufacturing defect is alleged, the onus of proof has to be on the complainant. Admittedly, the petitioner/complainant had produced, in support of her allegation of manufacturing defect, her own affidavit alongwith affidavit of 7-8 more witnesses. The District Forum correctly held - and the state commission concurred - that that these affidavits are no substitute for an expert opinion, to hold that the vehicle was indeed suffering from some manufacturing defect (s)..."

 

9.           ‘In the present case also, it is therefore held that in the absence of any evidence to prove that the vehicle in question is suffering from any manufacturing defect or any other defect, which is beyond repairs or that it was ever taken and landed to the service centre workshop of the OP for the alleged repairs, no case is made out against the OP. 
10.           In this view of the matter, it is held that since the complainant has failed to prove her case, as such, no relief can be granted to her. Resultantly, this complaint stands dismissed with no order as to cost.  Certified copies of the order be sent to the parties concerned as per rules. File be annexed and consigned to the record room.

Announced:- 16.08.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President