PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of September 2011
Filed on :13-10-2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No.533/2010
Between
Prince Vathikulam, : Complainant
S/o. Antony Vathikulam, (By Adv. Peer Muhammed Khan
Vathikulam house, No. 15, IJL Building, High Court
Thevakkal P.O., Thrikkakara, View, Kochi-31)
Ernakulam-688 021.
And
1. The General Manager, : Opposite parties
Royal Enfiled (A Unit of (By adv. Nithin George,
Eicher Motor Ltd), Thiruvottiyur, M/s. Menon & Pai, I.S. Press road,
Chennai, Thamil Nadu-600 019. Ernakulam, Kochi-682 018)
2. The Manager,
St. Mary’s Motors,
41/421, Chittoor road,
Rajaji Jn, Ernakulam,
Kochi-35.
O R D E R
C.K. Lekhamma, Member.
The case of the complainant is as follows:
0n 07-08-2010 the complainant purchased a bullet standard 350UCE motor bike worth Rs.85,233/- from the 2nd opposite party. which was manufactured by the 1st opposite party. 2nd day on words from the date of purchase the bullet failed to start as it showed kicker jam and the rear wheel struck. The same day itself the complainant informed the 2nd opposite party about the said problem. The 2nd opposite party had taken the vehicle on 16-08-2010 for servicing. Their service staff had broken the engine seal and found a piece of aluminum stud inside the engine box/cover, which was without fixing anywhere in the engine of the Bullet. And repaired the engine and returned the bullet to the complainant on 25-08-2010. The said defect was caused due to the manufacturing defect of the vehicle. The complainant requested the opposite parties to replace the defective engine of the vehicle for the reason of the manufacturing defect. The presence of a piece of aluminum stud inside the engine cover/box that too without fixing anywhere in the engine, has caused the unpleasant breakdown of the bullet on the fourth day of its purchase and on the reading of 197 kilometers. Even after the repair made by the 2nd opposite party the Bullet showed leakage of oil from the engine part. The said complaint also was brought to the notice of the 2nd opposite party and the complainant was forced to keep the vehicle with the 2nd opposite party for curing the defect. The opposite parties have committed deficiency of service and unfair trade practice in this case. The complainant is not in a position to make the vehicle usable promptly till this time. The complainant thus suffered grave mental agony owing to the illegal acts of the opposite parties. Thus the complainant prays the following direction against the opposite parties
to replace the engine of the Bullet under dispute and to incorporate the necessary changes in the relevant records.
i. To direct the opposite parties to pay a compensation of Rs. 10,000/- for financial loss, a sum of Rs. 5,000/- for mental agony caused to the complainant and litigation costs.
2. Version filed by the opposite parties.
The opposite parties admitted that on 07/08/2010 the complainant had purchased the vehicle under dispute from them. The averment that the Bullet standard 350 UCE bike sold to him is a defective one is denied by the opposite party. The bike was in very good condition at the time of sale, the repair for the bike was due to kicker jam and the same has been removed, cleaned and refitted. Immediately after the report of defect, the service staff had contacted the complainant but he had refused to give the vehicle and was then demanded for a total engine replacement. The complainant had given the bike for a regular service during which the service team had rectified the leakage. The breakdown was not due to the failure on the part of opposite party’s service. The opposite parties have not accepted unreasonable clauses in the warranty to replace the engine in case of minor repairs arising out of the complainants fault. Therefore the complainant is not entitled to get any of the reliefs asked for. The opposite party has promptly performed its part by attending to the service of the bike as and when complainant has been approached. Therefore there is no deficiency of service and so the complainant is not entitled to get compensation
3. The complainant and the opposite parties represented through counsel. The complainant was examined as Pw1Exts. A1 to A10 were marked on his side. Neither oral nor documentary evidence was adduced by the opposite parties. We have heard the respective counsel.
4. The points that arose for consideration are as follows:
i. Whether the complainant is entitled to get replacement of the engine of the bike under dispute?
ii. Compensation and costs if any
5. Points Nos. 1 & 2. The case of the complainant is that after two days of the purchase of the bike it showed kicker jam and rear wheel struck complaint. It is contend that subsequent to the repair the bike showed defects one after another and the complainant and the complainant couldn’t use the vehicle promptly till time due to the manufacturing defect of the same. The opposite parties contented that the 1st opposite party, the manufacturer, who is a pioneer in the field of Motorbike manufacturing in our country since 65 years. According to them they have promptly attended to the complaints and rectified the defects. They are of the view that the defects were minor in nature which was occurred due to the carelessness of the complainant. They stated that the defects were not due to the manufacturing defects and the replacement of the engine is not at all warranted.
The opposite parties admitted the transaction. Ext. A1 is the tax invoice of the vehicle dated 07/08/2010, Ext. A7 series are the receipts of job card dated 03/09/2010, 13/09/2010, 08-09-2010, 03-11-2010, 02-12-2010,08-12-2010 and 03-02-2011 respectively. Ext. A4 job card shows that within a short span of purchase the vehicle shows defects. Ext. A7 series receipts go to show that on several occasions the vehicle had repaired by the opposite parties. The opposite parties admitted in their version that they had rectified several defects but all are minor in nature. One of the main allegation of the complainant is that while rectifying the kicker jam complaint the engine of the bike had broken by the service engineers. By that time a piece of aluminum stud has seen inside the engine. The same is not fixed anywhere. The complainant further contented that the oil leakage was started after opening the engine. No satisfactory explanation is forthcoming on the part of the opposite parties as to the reasons for the oil leakage. Their main allegation is that all problems were started due to the improper use of the vehicle by the complainant. But no evidence before us to substantiate those contentions of the opposite parties. The Hon’ble National Commission in Nachiket P. Shingaonkar Vs. Pandit Automotive Ltd. And another (2008 CTJ 867 NC) held in para 14 as follows:
“14. In today’s world there are several manufacturers and they have flooded the market with several brands of vehicles. They are also alluring the consumers by issuing advertisements in the print and electronic media making huge claims about the capacity and good quality of their vehicles introduced by them in the market. Hence, the gullible consumer who is lured by these advertisements, expects defect free smooth service at least in the first year of purchase of the car. In this case, from day one onwards the vehicle was found to be defective which was admitted by the dealer himself through his letters. Naturally, encountered with these problems the consumer must have been shell shocked compelling him to knock at the doors of the Consumer Forum. Even before the consumer Forum in the written submission filed by OP1 there is a clear admission of the manufacturing defects. Hence, we are convinced that the vehicle did suffer from manufacturing defects. This is a clear case of res ipsa loquitor i.e. facts speak themselves hence there is no deed to refer the vehicle to a third party for giving an opinion”.
In the instant case as well as recuring defects of the vehicle was caused only due to its manufacturing defects that too within the warranty period. Hon’ble Supreme Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and another 2006 (4) SCC observed that replacement of defective part is sufficient to meet the ends of justice instead of replacement of the vehicle as such. In the above circumstances we have no hesitation to hold that 1st opposite party is liable to replace the engine of the vehicle under dispute.
6. In the facts and circumstances of the case we are not ordering any compensation. However the complainant is entitled to get litigation cost from the opposite parties. Since the complaint was dragged to this litigation unnecessarily.
7. In short, we partly allow the complaint as follows:
i. The 1st opposite party shall forthwith replace the engine of the disputed bike with a new one at their cost and provide fresh warranty for one year.
ii. The 1st opposite party shall take necessary steps to change the relevant RC records and insurance pertaining to the engine number of the vehicle under dispute. The complainant shall provide necessary assurance to the 1st opposite party for the same..
iii. The opposite parties shall jointly and severally pay Rs. 1,500/- as litigation costs to the complainant.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 30th day of September 2011.
