Orissa

Cuttak

CC/265/2022

Sanjaya Agrawal - Complainant(s)

Versus

Propriertor,M/s EV World - Opp.Party(s)

A K Kedia & associates

24 May 2024

ORDER

            IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

                                                               C.C No.265/2022

Sanjay Agarwal,

S/o: Ghanashyam Agarwal,

At:Plot No.2C/122,Sec-9,C.D.A,

Abhinav Bidanasi,Dist:Cuttack-753014.            ... Complainant.

 

          Vrs.

 

1.        M/s. EV World,

Near Great India Transport,

Canal Road,Jobra,Dist:Cuttack-753003

Represented by its Proprietor.

 

2.       Pure Energy Private Ltd.,

H.No.10-38/2,Sy No.424/AA3,Kandi,

Dist: Sangareddy, Telengana-502285,

Represented by its Director.                           ….Opp. Parties.

 

Present:         Sri Debasish Nayak,President.

                      Sri Sibananda Mohanty,Member.

 

Date of filing:    26.12.2022

Date of Order:  24.05.2024

 

For the complainant:             Mr.A.K.Moharana,Adv. & Associates.

For the O.P no.1        :            Mr. A.Agarwal,Adv. & Associates.

For the O.P no.2        :             Mr. S.Khan,Adv. & Associates.  

 

Sri Debasish Nayak,President                               

Case of the complainant as made out from the complaint petition bereft unnecessary details in short is that he had purchased one Electric Charging Scooty called Epluto 7G from O.P no.1 on 25.10.2021 for a price of Rs.83,999/-.  There was warranty on the battery of the said vehicle for 36 months which was effective from 12.7.2021 to 9.7.2024.  The complainant had availed the first service of his vehicle on 24.11.2021 and he could notice that even if the battery was fully charged, the vehicle was not running properly.  He had intimated such fact to the O.P no.1 and was assured for change of the battery within two to three months.  On several subsequent occasions, the vehicle of the complainant could not start due to problem in the battery.  It is for the said reason; the complainant had requested O.P no.2 for replacement of his problematic battery in his vehicle.  But the O.Ps refused to accept such request of the complainant for which the complainant was compelled to send legal notice to them on 17.9.2022 and ultimately when no fruitful result yielded, he has approached this Commission through his petition seeking from the O.Ps a sum of Rs.50,000/- towards the cost of the battery, another sum of Rs.40,000/- towards his mental agony and harassment and further a sum of Rs.9,900/- towards the cost of his litigation.  He has also prayed for any other order as deemed fit and proper.

 Together with his complaint petition, the complainant has annexed copies of several documents in order to prove his case.

2.       Both the O.Ps have contested this case but they have preferred to file their separate written versions.

          As per the written version of O.P no.1, the case of the complainant is not maintainable as there is no cause of action. The O.P no.1 has submitted that the warranty was available with certain terms and conditions.  The conditions are :(i) “All 4 services as given schedule are availed (ii) All 6 paid services as per given schedule are availed (iii) maintaining the service record given in the Owner’s Manual duly signed by PURE-EV Dealer for each of the 4 free and 6 paid services availed is must. If any of the free or paid service is not done as per schedule, the warranty shall be void.” According to O.P no.1, the complainant of this case had availed the first free service and the 4^th free service but had missed the second and third free services for which the claim of the complainant on warranty is void.  Thus, it is the urge of O.P no.1 through his written version to dismiss the complaint petition as filed by the complainant it being devoid of any merit as there is a breach to the terms and conditions of the warranty upon the battery from the side of the complainant.

          The O.P no.1 has filed several documents with his complaint petition in order to support its stand.

          As per the written version of O.P no.2, the allegation as brought forward through the complaint petition is devoid of any merit, the case of the complainant is not maintainable which is liable to be dismissed.  The complainant had failed to avail the free services for his vehicle.  According to O.P no,2, the warranty is only valid when all the four free services and 6 paid services are availed by the customer as per the service schedule and in the present case, the complainant had failed to avail all those services for which there was a breach in the condition of the warranty.  To support such contention, the O.P no.2 has relied upon a catena of decisions which are as follows: -

1. In the case of Indian Oil Corporation Vs. Consumer Protection Council,Kerala & Anr.(1994) 1,Supreme Court 397 decided by Hon’ble Supreme Court.
2. Tata Motors Ltd. Vs. Antonio Paulo Vaz and Ors(2021).
3. Mrs. S.S. Gupta Vs. Volkswagen Group Sales India Private Limited (2020).
4. Arun Kumar Vs. Maruti Suzuki India Limited & Ors(2019).
5. Shriram Automall India Ltd.  Vs. Abhijeet Infra Pvt. Ltd. & Ors(2019).
6. Bajaj Auto Limited Vs. Radheshyam Tiwari (2018).
7. National Insurance Company Ltd. through its Manager Vs. Babulal Lodhi, 2010(3) C.P.C 717.
8. Pioneer Honda & Anr. Vs. Gursharan Kaur (2018)
9. Hindustan Petroleum Corporation Limited Vs. PSNR Companies, 2010.
10. Thomas Vally Vs. Mercedes-Benz India IV (2016)
11. Surendra Kumar Tyagi Vs. Jagat Nursing Home and Hospital and Another, IV(2010) CPJ 199(N.C).

Thus it is the contention of O.P no.2 to dismiss the complaint petition with cost.

          Together with the written version O.P no.2 has annexed copies of the brochure of the Efluto two-wheeler.

          The complainant has filed his evidence affidavit here in this case.  The same when perused, it is noticed to be a reiteration of the averments as made by the complainant in his complaint petition.

3.       Keeping in mind the averments as made in the complaint petition and the contents of the written versions of the O.Ps 1 & 2, this Commission thinks it proper to settle the following issues in order to arrive at a definite conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.Ps ?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issue no.II.

Out of the three issues, issue no. ii being the pertinent issue is taken up first for consideration here in this case.

After perusing the complaint petition, written versions, written notes of submissions as filed from the side of complainant and O.P no.1, evidence affidavit filed by the complainant as well as the copies of documents as available in the case record, it is noticed that admittedly the complainant Sanjay Agrawal had purchased an EV two-wheeler on 25.10.2021 from  O.P no.1.  The complainant has annexed a copy of the warranty policy, scope of warranty relating to his purchased vehicle vide Annexure-2.  On perusal of the same, it is noticed that the battery is covered “under warranty for a period of 36 months from the date of purchase or 40,000 Kms whichever comes first, with minimum 70% retention of the battery capacity over the warranty period.  In case of battery replacement, the warranty of the new battery shall remain from the original date of purchase only.”    The O.Ps have raised contention that since there was a breach in the warranty and as because the complainant had not availed all the four free services as well as six paid services for his vehicle from the O.Ps, the warranty for his battery stands cancelled.  To that effect they have filed the total warranty brochure in connection with the vehicle concerned in this case.  On perusal of the same, it is noticed that as per the warranty condition, infact the purchaser of the EV vehicle from the O.Ps is to avail the four free services as well as the six paid services from the O.Ps only in order to enforce the warranty.  But here in this case it is noticed that the complainant had availed the first free service and according to the O.Ps, the complainant had also availed the fourth free service.  It is not understood as to why the complainant had not availed the second and third free services or even the six paid services from the O.Ps.  Thus, there is a clear-cut breach in the condition of the warranty as contemplated in the brochure.  For the said reason, this Commission finds that the complainant had suppressed such material facts and had not approached with clean hands.  When there is a breach to the conditions of the warranty, the petition of the complainant appears not to be enforceable.  As such, this Commission finds no deficiency in service on the part of O.Ps here in this case.  Accordingly, this issue goes against the complainant.

Issues no.i & iii.

From the discussions as made above, the case of the complainant is not maintainable and the complainant is not entitled to any relief as claimed by him.  Hence it is so ordered;

ORDER

Case is dismissed on contest against O.Ps and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 24^th day of May,2024 under the seal and signature of this Commission.         

 

                                                                               Sri Debasish Nayak

                                                                                       President

                     

 

                                                                          Sri Sibananda Mohanty

                                                                                             Member