State Consumer Disputes Redressal Commission
Managing Director, M/S Hero Exports vs Sneh Lata on 25 October, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
FIRST APPEAL NO. 837 OF 2009
Date of Institution: 07.10.2010
Date of Decision: 25.10.2013
Managing Director, M/s Hero Exports, Hero Nagar, G.T.Road,
Patiala.
.....Appellant/Opposite Party No.1
VERSUS
1. Sneh Lata W/o Sh.Ashok Singla, R/o 554, Street No.5, Guru
Nanak Nagar, Opposite Gurbax Colony, Patiala, through
Special Power of Attorney, Sh.Ashok Singla.
.....Respondent/Complainant
2. Aggarni Automotive, through its MD/Proprietor/Partner, SCO
No.117, Chhoti Baradari, The Mall, Patiala.
.....Respondent/Opposite Party No.2
First Appeal against the order
dated 10.3.2009 passed by the
District Consumer Disputes
Redressal Forum, Patiala.
Quorum:
Hon'ble Mr. Justice Gurdev Singh, President
Sh. Baldev Singh Sekhon, Member
Smt. Surinder Pal Kaur, Member Present:
For the appellant : Sh.Karan Nehra, Advocate
For respondents : Ex-parte
BALDEV SINGH SEKHON, MEMBER
This appeal has been filed by the appellant/opposite party No.1 against the order dated 10.3.2009, passed by the District Consumer Disputes Redressal Forum, Patiala (in short "District Forum"), vide which the complaint filed by the respondent No.1/complainant was allowed and the opposite parties were directed to replace the Hero Maxi vehicle with a defectless new one alongwith further warranty or First Appeal No. 837 of 2009 Page 2 of 8 to refund the price of the vehicle i.e. Rs.27,573/- alongwith interest @ 10% per annum from the date of purchase till the payment with another sum of Rs.10,000/- as compensation inclusive of costs and harassment.
2. Briefly stated, the facts of the case are that the complainant, Smt.Sneh Lata, wife of Sh.Ashok Singla, filed the present complaint through her special power of attorney, Sh.Ashok Singla pleading therein that she purchased one Hero Maxi vehicle on 22.8.2007 from opposite party No.2, who is the authorised dealer of opposite party No.1 for an amount of Rs.27,573/-. At the time of purchase of the vehicle, opposite party No.2 assured her that the electric vehicle would run at the speed of 25 kms. per hour and that it can run continuously for a distance of 75 kms. per charging of the battery. After the purchase of Hero Maxi electric vehicle, the complainant noticed that the battery of the vehicle was not charging properly. She approached opposite party No.2 on 20.9.2007 and brought the defect into its notice. It tried to rectify the defect but when the complainant took the vehicle to her house, she again noticed that defect in charging of the battery was still existing. Thereafter, she visited the showroom of opposite party No.2 many times and requested for the replacement of the battery as the vehicle was under warranty period. But it failed to rectify the same. The vehicle used to stop after covering the distance of 15-20 kms. only. In the month of April/May, 2008, opposite party No.2 kept the vehicle for four days with it and at the time of delivering back, it was told that they had replaced the battery of the vehicle and the vehicle would run continuously for 75 kms. First Appeal No. 837 of 2009 Page 3 of 8 after charging the battery and that the speed of the vehicle would also increase. But still the defect continued and the speed of the vehicle remained 15-20 kms. per hour and it stopped after covering a distance of 10-15 kms. She wrote many letters to opposite party No.1 with no result. In a complaint before the District Forum, she sought directions to the opposite parties to replace the defective vehicle with a new one.
3. Notice of the complainant was given to the opposite parties wherein they were directed to put in appearance in the District Forum on 6.1.2009 but they having failed to do and, therefore, were proceeded against ex-parte.
4. Learned District Forum, on the basis of the evidence led by the complainant, accepted her complaint and decided the same in the aforesaid terms.
5. Aggrieved by this order, opposite party No.1 has come up in appeal on the ground that it received the impugned order passed by the District Forum on 19.5.2009, from which it came to know about the complaint filed by the complainant and about the fact that they were proceeded against ex-parte. It was submitted that the complainant, who is an employee of the District Forum itself, had abused the process of law by stage managing the service of the summons of the complaint on it. The District Forum ought to have transferred the matter to some other District Forum for proper adjudication. In fact the service of summons in the complaint filed by the complainant was never affected upon it. For the malicious conduct of the complainant/employee of the District Forum, she cannot be allowed to escape from the tentacles of law. Great First Appeal No. 837 of 2009 Page 4 of 8 prejudice has been caused to its right and the District Forum has acted in a malafide manner against it. It was, however, admitted that manufacturer of the vehicle Hero Maxi had obtained requisite approval from the Automobile Research Association of India (in short "ARAI"). Before commercial manufacturing and selling of the vehicle, the ARAI conducts strenuous tests on the vehicle and only after their approval of specific model, an Automobile Company starts its commercial manufacturing. It was, however, admitted that the vehicle, which was bought carried from opposite party No.2 on 22.8.2007, a warranty of 180 days for its battery. Further as per exclusion clause, it was mandatorily required that the vehicle is serviced as per schedule. However, the complainant kept on using the vehicle without proper care and diligence and never got it serviced as per schedule and thereby her warranty was rendered void at the option of the company. But to provide better customer satisfaction, opposite party No.1 kept on providing free services and cover of warranty to the complainant. The complainant raised the issue of battery on 8.8.2008 after expiry of period of its warranty i.e. after a period of 11 months from the date of purchase of the vehicle. As per service history, she had never raised the issue of low average or pick up or speed of the vehicle upto 22.8.2008. All issues raised by the complainant were appropriately addressed and the vehicle of the complainant was found to be working satisfactorily. Acceptance of the appeal and setting aside of the impugned order was prayed. First Appeal No. 837 of 2009 Page 5 of 8
6. We have thoroughly gone through the pleadings of the parties, considered the submissions of the learned counsel for opposite party No.1 and have carefully perused the evidence on record.
7. Opposite party No.1 has contended that he was proceeded against ex-parte before the District Forum on account of fact that the service to it was stage managed by the complainant, who was an employee of the District Forum. But it has not been spelled out how the service was managed by her. The summons issued to opposite party No.1, were sent on the address given in the complaint i.e. Managing Director, M/s Hero Exports, Hero Nagar, G.T.Road, Ludhiana through registered post, letter No.472 dated 4.12.2008 which is the addressed as mentioned by appellant in present appeal. The zimni order dated 6.1.2009 states that the summons sent to the opposite parties not received back and more than one month has been elapsed, thus, opposite party No.1, alongwith opposite party No.2, was proceeded against ex-parte. Thus no prejudice was caused to opposite party No.1 due to complainant being the employee of the District Forum.
8. The complainant has contended that there was a manufacturing defect in the vehicle due to which the average speed of the vehicle was only 15-20 kms. per hour instead of 25 kms. per hour and it used to stop after covering a distance of 15-20 kms. only instead of 75 kms. as promised by the opposite parties. Initially the problem was attributed to the defect in charging of the battery but subsequently when same was replaced with a new one, still the problem of the vehicle continued. The District Forum had concluded that the "low First Appeal No. 837 of 2009 Page 6 of 8 speed" and the "lesser distance coverage" per charge of the battery was on account of manufacturing defect in vehicle. Reliance was placed on the report of an expert, Sh.R.K.Bansal (Ex.C-5) which was supported by his affidavit. In this report, he had concluded that either there was a manufacturing defect or it had design problem due to which its motor was taking very much higher amperes than its rated capacity on full load. A close scrutiny of this report would reveal that the same is not at all authenticate and reliable. Sh.R.K.Bansal, is only a Surveyor and Loss Assessor and not an expert in automobile engineering or electrical engineering. His conclusions regarding defect in was defect in motor or vehicle had a design problem. He himself is not sure whether the vehicle are misplaced. It has been stated in the report that the expert checked the amperage of the motor and was found taking more than 10 amperes against the rated capacity of 5 amperes and that the battery discharged due to this excessive drawl of current. However, the complainant himself has placed on record the technical specifications of the vehicle as Ex.C-13 in which the battery voltage has been mentioned as 48 volts and charger capacity is stated as 48V, 3A. No rated amperage of the motor has been mentioned as 5 amperes only the motor power has been mentioned as <250 W. No doubt the defect in the motor will result into excessive drawl of current which may lead to quick discharge of the battery. The defect in the motor, could not be rectified even after replacement of the battery. Moreover no defect was found in the charger. The terms of the warranty have been placed on record by the First Appeal No. 837 of 2009 Page 7 of 8 opposite parties as Annexure A-2, in which the clause relating to warranty obligations states as under:-
"Warranty obligations If any manufacturing defect(s) is (are) observed in any Electric Vehicle within the warranty period as mentioned, Hero Electrical's only obligation is to repair or replace defective parts with new parts or equivalent at no cost to the customer for part or labour when Hero Electric acknowledges that such malfunction is caused due to faulty material or workmanship during manufacturing.
Limitations The Warranty shall not apply:
1. If any of the service has not been availed as per the specified periods.
2. Any vehicle that has not been used in accordance with the operating instructions mentioned in the Owner's Manual of the product.
3. Normal maintenance service (required other than free service) including fasteners re-lightening, wheel alignment, wheel balancing, brake adjustments, brake lever's play adjustments and regular battery charging has not been carried out.
4. Electric Vehicle has been used for commercial purpose.
5. Electric vehicle which has been used in rallies/races, stunt riding, acrobatics, ramp jumping, bicycle moto-
cross, dirt biking or similar activities as Electric Vehicle is not designed or intended for such purpose or usage."
9. Thus in the event of the electric motor having been found defective, only the motor is required to be replaced whereas the District Forum has ordered the replacement of the complete vehicle, which is against the warranty obligation.
First Appeal No. 837 of 2009 Page 8 of 8
10. In view of the above discussion and findings, the appeal of the appellant/opposite party No.1 is partly accepted and the impugned order of the District Forum is set aside and opposite parties are directed only to replace electric motor of the vehicle with a new one within 30 days from the date of receipt of copy of this order.
11. The appellant/opposite party No.1 deposited an amount of Rs.23,625/- with this Commission at the time of filing of the appeal. This amount, alongwith interest, which has accrued thereon, if any, be remitted by the Registry to the appellant/opposite party No.1, by way of a crossed cheque/demand draft, after expiry of 45 days under intimation to the learned District Forum.
12. The arguments in the case were heard on 24.10.2013 and the order was reserved. Now, the order be communicated to the parties.
13. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (SURINDER PAL KAUR) MEMBER October 25, 2013 VINAY