ORDER

18.11.2024

Sh. Sanjay Kumar, President

1. The factual matrix of the present case is that complainant purchased a bike namely “GT CONTINENTAL (ROYAL ENFIELD)” on 07.12.2015 of amounting to Rs.2,13,950/- from the OP2. i.e. KAY’S AUTO and the  complainant given the total amount to OP2. It is stated that the complainant has insured his  bike for three years and spent an amount of Rs.11,363/-.
2. It is stated that after one month purchasing of the bike, same was found not working  properly and the batter of the bike showing low regularly. It is further stated that after this problem the complainant visited to the service center and stated about his problem on 15.01.2016, and dropped the bike to the authorized service centre and the service center assured the complainant that the problem will be short out, but the service centre did not solve the problem of the complainant.
3. It is stated that on dated 02.02.2016 the complainant went to the Connaught Place from his bike and bike stopped there and did not start again and when the complainant contacted to the KAY’s AUTO DEALER” on mobile no.01128877011, and he assured the complainant that he service centre has been closed at this time and tomorrow will be holiday and said to the complainant that he can visit the service after holiday.
4. It is stated that on 04.02.2016, 4 o’clock at evening the Mechanic of the authorized service centre visited to the house of the complainant and took the bike and went to the service centre. It is further stated that the mechanic of the service centre came on 05.02.2016 and stated that now there is no problem in the bike and it is in good condition and filled the form of the complainant and took the sign on the service form. It is stated that after one hour when complainant started the bike, again the same problem arisen for skipping and stopped. It is stated that the mechanic of service centre “KAY’S AUTO” came and took the bike again.
5. It is stated that the complainant had to visit to the OPs on various occasions but the officials of the respondents instead of redressing the grievances of complainant made complaint to suffer with mental and physical agony and further when complainant requested for the refund of amount paid, the same was also declined.
6. The complainant is seeking directions against OPs to pay Rs.2,13,950/- aforesaid amount alongwith interest @ 24% p.a from date of filing of present complaint till its realization, to pay Rs.1,00,000/- for mental and physical agony, to pay Rs.50,000/- as litigation charges and any other order which deems fit and proper.
7. OPs filed detailed WS and taken preliminary objections and submissions that the answering OPs deny each and every averment, allegation, contention and submission made by the complainant in the memo of complaint, which are contrary to and inconsistent with the case of the OPs. It is stated that nothing in the complaint is admitted, unless specifically admitted.
8. It is stated that the complainant had purchased a motorcycle i.e. Royal Enfield GT Continental on 07.12.2015 from the OP2. It is further stated that OP1 is one of the leading motorcycle companies of the country and is as such know for its quality and after sales services. It is stated that the present complaint is based upon false and frivolous facts and allegations. It is further stated that the complainant has not approached this Hon’ble Forum with clean hands and has concealded material facts in order to over reach this Hon’ble Forum.
9. It is stated that the complainant has itself violated the terms and conditions of the warranty for the aforesaid vehicle and the present complaint is filed with the sole intention to harass the OPs and extract undue services under the garb of the present complaint. It is stated that it may not be out of place to mention that despite such commissions and omissions of the complainant, the OPs, with the sole intention to provide good after sales services, tried to resolve the dispute amicably, however, the complainant remained hostile to any settlement and refused all offers made by the OP.
10. It is stated that the complainant is neither entitled to any relief from the Hon’ble Forum nor is the complainant entitled to any after sales services from the answering OPs. It is further stated that the complainant has  violated the terms and condition of the warranty and has in effect made the warranty void. It is stated that the complaint has pleaded wrong, inconsistent and contradictory facts in the complainant and as such the present complaint deserves to be dismissed solely on this ground.
11. On merit all the allegations made in the complaint are denied  by OPs and reiterated contents of the complaint.
12. Complainant filed rejoinder to the WS of OPs and denied all the allegations made therein and reiterated contents of the complaint.
13. Complainant filed evidence by way of his affidavit and reiterated contents of complaint.
14. OPs filed evidence by way of affidavit of Arshit Vashist Authorized Representative of OPs and reiterated contents of WS. OPs relied  on power of attorney Ex.RW1/1, copy of whether refund can be issued Ex.RW1/2, copy of job card dated 15.01.2016 Ex.RW1/3, copy of service invoice dated 15.01.2016 Ex.RW1/4, copy of service invoice dated 06.02.2016 Ex.RW1/5, copy of job card dated 19.02.2016 Ex.RW1/6, copy of service invoice dated 19.02.2016 Ex.RW1/7, job card dated 29.03.2016 filed with reply Ex.DW1/7 and service invoice dated 19.03.2016 Ex.DW1/8.
15. Written arguments filed by complainant.
16. We have heard counsel for complainant Ms. Kavita Chibbar alongwith Ms. Pushpa Chibbar and Sh. Rishi Raj proxy counsel for Ms. Divya Arora counsel for OP1 and 2 and perused the record.
17. Let us peruse the principle of law applicable in the present facts and circumstances of the case. In the case of “ Classic automobiles Vs. Lila Nand Mishra” as reported in I [2010] CPJ 235 (NC) wherein, the Hon’ble National Commission while dealing with the similar case has hold as under:

“ The onus to prove that there existed a manufacturing defect was on complainant/respondent No.1. We agree with the contentions raised by the learned counsel for the petitioner that complainant/respondent nO.1 failed to prove that there was any manufacturing defect by producing any cogent evidence. Complainant failed to produce expert evidence as provided under Section 13 (1) (c) of the Consumer protection Act, 1986.”

18. Further, under catena of Judgements name “EID Parry Vs. Baby Benjamin-I (1992) CPJ 279, Tata Motors Vs. Sunil Bhasin –III (2008) CPJ 111, Chandreshwar Vs. Telco-I (2007) CPJ 2, Diamond Cement Vs. Rai Prexin India Pvt. Ltd. I (2003) CPJ I and Lovely Vs. Harmesh Lal-I (2007) CPJ 312.” On similar issues, the Hon’ble National Commission has held that expert opinion is a condition precedent for establishing manufacturing defect.
19. Now applying the above discussed principle of law in the present facts and circumstances of the case. The complainant alleged that the motor bike in question on 07.12.2015 and it developed problem in working of batter and taken to service center on 15.01.2016. The complainant alleged that on 02.02.2016 the bike was stopped at Connaght Place and after making complaint to service center on 04.02.2016 taken the bike to service center. On 05.02.2016 the mechanic after repair told that there is no problem. The present complaint filed on 12.02.2016 within two months of purchase of the bike. The complainant alleged multiple manufacturing defects and malfunctioning, however, there is no specific illustration with regard to manufacturing defect in the motor bike. On the other hand OP filed documents. The documents are service invoice dated 15.01.2016, service invoice for second free service dated 06.02.2016, service invoice dated 19.02.2016, service invoice dated 29.03.2016. These service invoices mentioned with regard to change of spark plug, mangineto assy, local lubrication, Teflon coating, mini blade fuse. According to OP on 29.03.2016, complainant visited the service center because a fuse in vehicle was blown up and same was replaced for meager cost of Rs.14/- which is not a manufacturing defect and vehicle was running in perfect condition.
20. It is pertinent to mention here that during the proceedings OP filed an application for conducting inspection of the vehicle by an independent expert under section 13 (1) (c) of CP Act 1986. The complainant contested the application and our predecessor bench dismissed the application vide order dated 21.11.2019. The complainant contested the application and at no point of time it has come on record by an independent expert whether there is manufacturing defect in the motorbike in question or not. During the course of argument counsel for complainant pointed out an affidavit of Mr. Arshit Vashisht AR of OP1 with regard to compliance of order dated 24.04.2018. This affidavit is annexed a job card dated 24.04.2018 and service estimate of Rs.37,683/-.
21. We have gone through all the documents filed by both the parties. It is pertinent to mention here that the onus of proving the manufacturing defect in the vehicle lies on the complainant. The complainant in the present case when OP wish to examine the vehicle in question by an independent expert resisted and no evidence brought on record which corroborates the allegations of manufacturing defect as alleged by the complainant. As per allegation only two times after purchase bike in question was taken to service center and two visits does not sufficient to establish that bike in question is having manufacturing defect. The judgment of Tata Motors Ltd. Vs. Deepak Goyal & Ors. (NC) dated 30.01.2015 squarely covers the present case.
22. On the basis of above observation and discussion the complainant failed to establish manufacturing defect in motorbike no. DL 3SEH 0200 and also failed to establish deficiency of service on the part of OP. Hence present complaint is dismissed. No order as to cost. File be consigned to record room.
23. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  18.11.2024.

     SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER