Date of Filing:14/09/2016
Date of Order:07/08/2018
BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated: 07TH DAY OF AUGUST 2018
PRESENT
SRI.H.R. SRINIVAS, B.Sc., LL.B.Rtd. Prl. District & Sessions Judge And PRESIDENT
SRI D.SURESH, B.Com., LL.B., MEMBER
COMPLAINT NO.1626/2015
COMPLAINANT | | |
| | A.S. Shashidhar Narayan S/o Appaiah Shankaranayan, Aged about 27 years, R/@ O.Anajani Layout, Chinthamani Patna, Chintamani, Chikkaballapura District. (Sri N.Lokesh Adv. for Complainant) |
V/s
OPPOSITE PARTIES | | |
| 1 | ROYAL ENFIELD MOTORS LIMITED, Unit of EICHER MOTORS LIMITED, Tiruvottiyur High Road, Tiruvottiyur, CHENNAI 600 019. Represented by its Managing Director. |
| 2 | TEKNIK MOTORS, No.10/A, 17th “E” Cross, Indiranagar 2nd Stage, BANGALORE-560 102. Represented by its Proprietor. (Sri R.B. Sadasivappa Adv. for O.P.No.1 and 2) |
ORDER
BY SRI.H.R. SRINIVAS, PRESIDENT
1. This is the complaint filed by the complainant against the Opposite Parties (hereinafter referred to as OPs) under Section 12 of the Consumer Protection Act, 1986 praying this Forum to direct the OPs to replace with a new vehicle free of cost and in the alternative to refund a sum of Rs.1,88,428/- being the cost of the vehicle with, Rs.4,000/- being the cost of the rear mirrors fitted to the vehicle along with Rs.2,00,000/- as damages for mental and physical sufferance, Rs.10,000/- towards litigation expenses and for other relief as this Forum deems fit.
2. The brief facts of the complaint are as under:
OP No.1 is the manufacturers of the Royal Enfield Motor cycles whereas OP No.2 is the authorized dealer of the OP No.1. Complainant purchased Royal Enfield Continental GT (red colour) by paying Rs.1,88,428/- from OP No.2 and further paid Rs.4,000/- for the two mirrors on 6.9.2014. The said vehicle was temporarily registered with the authorities. Few days after the purchase, before the first service, there was heavy sound and misfiring in the engine. The same was brought to the notice of OP No.2 who asked him to leave the vehicle for the service and he left the same for service. OP No.2 without rectifying their problems handed over the said vehicle on 12.11.2014. Again the same problem persisted.
3. After 20 days of the first service, again due to the same problem and jerking and burning of spark plugs, he brought the same to the notice of OP No.2. Again OP No.2 asked him to leave the vehicle in the service station and without attending to the said problem, returned the vehicle stating that he had attended to the problem. On 5.12.2014 the matter was brought to the notice of OP No.1, the manufacturer of the vehicle. OP No.1 replied asking him to contact Mr.Suraj.S.Nair a Territory Service Manager Bengaluru. As per his advice, the vehicle was left with OP No.2 for service on 08.12.2014. On 09.12.2014 the vehicle was returned stating that the problem was solved. Again within 20 days, the said problem reocured. It also developed a new problem like mapping failure which resulted in complete burning of silencer and over-heating of engine.
4. It is further contended that the said matter was brought to the notice of Mr.Suraj.S.Nair and also lodged a complaint with customer care of OP No.1 and also a regarding reluctance of Mr.Suraj.S.Nair in getting the same repaired. The burnt silencer was not replaced. OP failed to rectify the defects. OP No.1 or the service center has not rectified the defects. Again he lodged a complaint on 23.3.2015 to customer care of OP No.1 requesting them to rectify the problems in the engine and to attend the other problems. Complainant was asked to contact Mr.Ashok.B.Malagi Regional Service Manager and the vehicle was taken to service center of OP No.1 at N.S.Palya where on Mr.Poonagundran the Deputy Manager asked him to leave the vehicle for inspection and repair. The vehicle was left with the OP No.1 service station. The vehicle was with them and on 14.04.2015 he received the vehicle and at the time the burnt silencer was replaced, and also informed him that they have rectified the engine problem and that the sound in the engine is common in Royal Enfiled Vehicles. He had to come to Banaglore for getting the problem of the Royal Enfiled bike solved by travelling 80 kms from Chinthamani to Bengaluru several times. Inspite of several visits to the workshop, the OPs have not set right the problem that has arisen in respect of the heavy sound in the engine, burning of spark plugs, misfiring and jerking. Hence, he had to issue legal notice demanding them to replace the bike with new one or else to pay the cost of the motor bike along with Rs.4000/- given for the rear mirrors. The OPs neither replied nor complied with the demand. He is a customer and a consumer of OPs. There is deficiency in service on the part of OPs and hence the complaint.
5. Upon the service of notice, OP No.1 and 2 appeared before the Forum separately and filed their separate versions. Though they have filed two separate version, on perusing the same it is the verbatim reproduction. It is contended by OP No.1 and 2 that, there is no deficiency in service on their part. There is no material defect or manufacturing defect in respect of the vehicle sold to the complainant. The complainant is not entitle for the cost of the motor bike or for its replacement. The complainant has filed this complaint by abusing the process of law. The complainant has not got the permanent registration of the vehicle. Complainant has not mentioned as to how many kms the said vehicle has covered. The allegation of the heavy sound in the engine, misfiring in the engine, jerking, burning of sparks plugs are all false. Their Technical Engineer Mr.Suraj.S.Nair, Mr.Ashok.B.Malagi and Sri.Pungundaran have attended the problems in the vehicle and there is no deficiency in service. Though the silencer was not burnt, the same was replaced with an intention to keep a good relationship with the customer. The allegations made are only to tarnish the image and brand name and reputation of OP. They have selected the service provider after a stringent selection. The vehicle was serviced as per the terms and conditions of the service on each and every occasion. Complainant has to prove the allegation made against it as well as regarding the manufacturing defect in the vehicle. They have given best of their services. The legal notice has been properly replied. Hence, OP No.1 and 2 prayed to dismiss the complaint.
6. We have carefully gone through the entire evidence and documents produced by the complainant and OPs. After hearing their counsel, the following points arise for our consideration:-
1) Whether the complainant has proved the
deficiency in service on the part the of the
Opposite Parties?
2) Whether the complainant is entitled to
the relief prayed for in the complaint?
7. Our answers to the above points are:-
POINT 1: In the Affirmative.
POINT 2: Partly in the Affirmative
As per the final order.
REASONS
ON POINT NO.1:-
8. The complainant and the OPs have reiterated the facts of the complaint and the version in their affidavit filed in lieu of evidence respectively. OP No.1 is the manufacturer of the Royal Enfield Motor cycles. OP No.2 is the authorized dealer of the OP No.1. Complainant purchased Royal Enfield Motor-Continental GT (red colour) from OP No.2 and further paid Rs.4,000/- for the two mirrors on 06.09.2014. The said vehicle was temporarily registered with the authorities. Few days after the purchase, before the first service, there was heavy sound and misfiring in the engine. The same was brought to the notice of OP No.2 who asked him to leave the vehicle for the service and he left the same for service. OP No.2 without rectifying their problems handed over the said vehicle on 12.11.2014 again the same problem persisted.
9. It is also admitted by OPs that the said vehicle was let for repair and the engine is making noise and there is misfiring in the engine and the engine silencer has burnt. Time and again the emails produced by the complainant reveals that he has been requesting the OPs to set the problems with respect to motor bike rectified whereas there is no concrete efforts made by OP to set it right permanently, so that the complainant could have been releaved of the problems of repeatedly coming to the workshop of the OP to get the problem attended too.
10. On the other hand, it is specific case of the OP that the complainant has not got the motor cycle registered permanently with the authorities and that he has not mentioned the reading of the odometer and with a view to make wrongful gain has filed this complaint. It is also urged by the counsel of the complainant that as per the decision reported in Supreme Court Cases (2006) 4 Supreme Court Cases 644 between Maruthi Udyog Vs Susheel Kumar Gabgotra and another, the vehicle cannot be replaced with a new one unless the manufacturing defects are established.
11. It is true that the said vehicle purchased by the complainant is not been permanently registered with motor vehicle department. It is not known as to what made the complainant to not to register the same with the authorities. Inspite of it, that is not a ground for the OPs to deny the problems/defects in the vehicle to set it right. OPs themselves have admitted that, it has received the vehicle with issues of heavy/enormous sound in the engine, misfiring, jerking and burning of spark plugs. Infact complainant has also produced photos of the burnt silencer. No ordinary prudent person would approach the forum unless his vehicle problems are attended properly and repaired properly.
12. Overall evidence reveals that the OP No.1 and 2 have not catered to the needs of the complainant and have not repaired the vehicle properly. In view of this and since, there is no expert evidence and report available before this forum to come to the conclusion that the vehicle has inherent manufacturing defect, and since the complainant has failed to prove the same in this forum, we are of the opinion that complainant is not entitled for the replacement of the vehicle with a new one. However, he is entitled to get the defects or malfunctioning of any of the parts of the said vehicle repaired properly to the standard prescribed by the manufacturer including that of the complained issues and also any other issues which the said vehicle has. In view of not attending the issues pertaining to the vehicle and providing a permanent solutions, made the complainant to visit the service centre of OP No.1 frequently which OPs have admitted regarding leaving the vehicle in the service station clearly and amply proves that there is deficiency in service on the part of the OPs and hence, we answer Point No.1 in Affirmative.
13. In view of the above and as discussed above complainant is not entitled for replacement of a new vehicle whereas, he is entitle for getting the said vehicle duly repaired in all respects. Had the OP repaired the vehicle properly and to the satisfaction of the complainant, he would have not approached this forum for exercising his right of consumerism. In view of this he was put to lot of stress, strain, mental and physical harassment besides financial loss. Further he is made to file this complaint by engaging the advocate and by paying him the professional fee. In view of this, we are of the opinion that a sum of Rs.10,000/- towards the damages for suffering the physical and mental stress and financial loss and Rs.5,000/- towards litigation expenses if ordered to be paid by OPs to the complainant ends of justice will be met. Hence, we answer Point No.2 Partly in Affirmative and pass the following:
ORDER
1. The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is hereby partly allowed with cost.
2. OP No.1 & 2 are hereby directed to repair the vehicle sold by them to the complainant in all respects free of cost and see that no problem with the vehicle within 15 days from the date on which the complainant hands over the vehicle to OP No.2 to the standard prescribed by the manufacturing company. Complainant is directed to hand over the vehicle to OP No.2 within 15 days from the date of this order.
3. Further OP No.1 & 2 are jointly and severally are liable to pay Rs.10,000/- towards damages to the complainant and Rs.5,000/- towards cost of the litigation expenses.
4. The prayer in respect of replacement of the vehicle with a
new one by the complainant is hereby rejected.
5. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 7th Day of August 2018)
MEMBER PRESIDENT
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1:Sri.A.S.Shashidhar - Complainant.
Copies of Documents produced on behalf of Complainant/s:
Doc.No.1: Copy of Sale Certificate dated 06.09.2014.
Doc.No.2: Copy of Rear Mirrors Invoice dt 05.09.2016.
Doc.No.3: Copy of Temporary Certificate of Registration.
Doc.No.4: Copy of complaint lodged by the complainant
dated 05.12.2014.
Doc.No.5: Copy of the Reply dated 05.01.2015 given by the Customer Care Service of OP No.1.
Doc No.6: Copy of complaints dated 05.01.2015(2 in Number) along with photo of burnt silencer.
Doc.No.7: Copy of the complaint dated 22.03.2015, 02.06.2015 and 27.06.2015.
Doc.No.8: Copy of Legal notice dated 04.09.2015 along with postal receipts.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: Sri.Thippe Swamy, Authorized signatory of OP No.1.
RW-2: Sri.Jayakumar, Authorized signatory of OP No.2.
Copies of Documents produced on behalf of Opposite Party/s
Annexure-1: Copy of the Citation.
Annexure-2: Copy of the Special Power of Attorney executed by OP
Company in favour of Sri.Thippe Swamy.
MEMBER PRESIDENT
*RAK/NRS
