BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC.4 / 2002 TUESDAY THE 13th DAY OF JULY 2010. Eapen George, S/o. late George Joseph, No.20/38 Anna Avenue, Ranipet, Vellore District. … Complainant. - Vs – 1. The General Manger, M/s. Royal Enfield Motors Ltd., Post Box No.5284, Thiruvottiyur High Road, Thiruvottiyur, Chennai 600 019. 2. The Managing Partner, T.P.G. & Sons, Enfield Dealers, No.10, Arni Road, Vellore – 632 001. … Opposite parties. . . . . This petition coming on for final hearing before us on 7.7.2010, in the presence of Thiru. C.G. Sridhar, Advocate for the complainant and Thiru. S. Venkatachari, Advocate for the opposite party No.1 and Thiru.S. Srinivasan, Advocate for the opposite party No.2 , and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant purchased a New Green Colour Enfield A 350 MACHISMO Bullet from the 2nd opposite party on 18.7.2000 vide Engine No.OS JO 1282 C, Reg. No. TN-23-S-3957 for a sum of Rs.63,878/- from the inception of purchase the aforesaid vehicle, it gives versatile troubles and poor consumption mentioned herewith. a) Starting Problem b) Offed Condition, c) Consumption of fuel – 28 to 30 Km / Pl. In the company’s leaflet of the 1st opposite partly it is clearly mentioned that the fuel consumption will be 47 to 50 k.m. per liter and it is also published in the Newspaper. Based on this advertisement and in good faith only the complainant purchased the aforesaid vehicle. On the other hand the said vehicle gives consumption only 30 k..m. per liter. Hence the complainant approached the 2nd opposite party to rectify the defects. The 2nd opposite party informed that the above mentioned defects are to be rectified by the 1st opposite party and without their help the 2nd opposite party is unable to rectify the same. Thereafter the complainant send a fax message to the 1st opposite partly on 23.2.01 to rectify the defects with no avail. The 1st opposite party is the manufacturing of the aforesaid vehicle and the 2nd opposite party is the authorized dealer in Vellore area, both are liable to pay the claim amount. For their blemished service and unfair trade practice the complainant incurred heavy loss and also had physical and mental strain. He prayed for directing the opposite parties to replace the aforesaid defective vehicle otherwise to refund the sum of Rs.63, 878/- which they taken towards the value of the vehicle with interest at 18% p.a. from the date of purchase the vehicle till the date of realization along with registration charges and to pay a sum of Rs.25,000/- towards damages and for physical mental strain and to pay a sum of Rs.2,500/- towards the cost of this complaint including Advocate Fees. 2. The averments in the counter filed by the 1st opposite party is as follows: The 1st opposite party deny all the allegations, averments and statements made in the complaint except those that has specifically admitted herein and put the complainant to strict proof of the same. The 1st opposite party is a leading manufacturer of motorcycles viz Enfield Bullet. 1st opposite partly introduced a new model motorcycle viz. Enfield Machismo A350 in or about August 1999. The said motorcycle was tested by the Research and Development Department of 1st opposite party. The said motorcycle incorporated a new technology known as lean burn technology which has Reliable Electronic All Aluminum Lean Burn (REAL) engine. In this connection the certificate issued by Automotive Research Association of India (ARAI), which is the Govt. authorized body for testing motor vehicles states that the Machismo A350 confirms to all technical specifications is enclosed. With reference to para 1 and 2 of the complaint that from the inception of the purchase of the vehicle it gives versatile troubles and poor fuel consumption of 30 k.m. per liter starting problem and offed condition are bald allegations and not sustained by any proof whatsoever and are denied. The vehicles generally gives 47 to 50 km per liter on IDC (Indian Driving Cycle) as prescribed by the ARAI. The 1st opposite partly is willing to rectify all the genuine defects in the complainant’s vehicle but for reasons best known to him, the complainant has not brought the vehicle for regular servicing. 3. The allegation regarding the vehicle not being fuel efficient as is being advertised is iincorrect. A manufacturer advertises that his vehicle would give a certain mileage only under certain IDC. The mileage and fuel consumption usually depend on various other factors like road conditions, riding habits of drivers, gear positioning speed of the vehicle etc., All these and other conditions to obtain maximum fuel efficiency are set out in the Owners Manual and the complainant cannot feign ignorance of the same. Hence there is nothing misleading about the advertisement of 1st opposite party. The complainant’s contention that this vehicle only gives 30 k.m. per liter is stoutly and vehemently denied. Under no circumstances has 1st opposite party advertised that the Machismo A 350 motorcycle will always given 47 to 50 kms per liter in IDC. In fact a careful and close perusal of the advertisement will clearly shows that the vehicle will give a mileage of between 47 to 50 kms per liter only under IDC. This is the standard form of an advertisement given by all automobile companies. As soon as a complaint dt. 23.2.01 was received by 1st opposite party from the complainant, the 1st opposite party’s Service Engineer, Mr.Mahalingam would visit Vellore on 26.2.2001, who met the complainant and inspected the vehicle. The Service Engineer also offered to replace the carburetor and for that purpose requested the complainant to once again bring the vehicle for servicing after a few days after the parts were received from Chennai. The 1st opposite party also sent a letter dt. 12.4.01, enclosed herewith and marked as Annexures – D stating that the Service Engineer, Mr.T.Ganapathy, along with the Regional Service Manager planned to visit Vellore the exact date will be communicated to him later. The complainant has not brought the vehicle to the 2nd opposite party for replacement of the carburetor. The complainant has already used the vehicle for more than seven months till the date of his first complaint. The complainant has never complaint about the vehicle excepting the poor fuel consumption. There are no manufacturing defects in the complainants vehicle, and hence the vehicle need not be replaced or amount refunded. The complainant has not produced any documentary evidence to substantiate his claim about the defects in his vehicle. The complainant has not let in expert opinion or evidence to substantiate his allegations that his vehicle suffers from defects and gives poor fuel consumption. Therefore, Pleased to dismiss the complaint with exemplary costs. 4. The averment in the counter filed by the 2nd opposite party are as follows: The 2nd opposite party does not admit any one of the allegations made in the complaint filed by the complainant save those that are specifically admitted herein and the complainant put to strict proof of them. The 2nd opposite party is a dealer of the vehicle under the 1st opposite party who is the manufacturer of the vehicle mentioned in the complaint. The defects and troubles mentioned in the complaint is only the manufacturing defects and the 1st opposite party is solely liable and responsible for the same. In this regard the 2nd opposite party already informed the defects of the vehicle to the 1st opposite party. But the 1st opposite party neither heard the complaint nor gave any response for the same. The above defects are only manufacturing defects and for the same the 1st opposite party is solely liable and responsible for replacement of the vehicle or to refund the cost of the vehicle. 5. Now the points for consideration are: a) Whether there is any deficiency in service or unfair trade practice on the part of the opposite party? b) Whether the complainant is entitled to the reliefs asked for?. 6. Ex.A1 to ExA4 were marked on the side of the complainant and Ex.B1 to Ex.B4 were marked on the side of the opposite party-1. Proof affidavit of the complainant and opposite parties have been filed. No oral evidence let in by either side. 7.. POINT NO. (a): It is admitted case of the parties that the complainant had purchased Green Colour Enfield A 350 MACHISMO Bullet from the 2nd opposite party on 18.7.2000 vide engine No.OS Jo 1282 C, REg. No.TN-23-S-3957 for a sum of Rs.63878/- from the inception of purchase the aforesaid vehicle, it gives versatile troubles and poor consumption viz a) starting problem, b) Offed condition, Consumption of fuel – 28 to 30 km / pl. The complainant approached the 2nd opposite party to rectify the defects. The 2nd opposite party informed that the above mentioned defects are to be rectified by the 1st opposite party. Accordingly the complainant sent a fax message to the 1st opposite party on 23.2.01 to rectify the defects. 8. The opposite parties contended that the said motorcycle was tested by the Research and Development Department of 1st opposite party and it incorporated a new technology known as lean burn technology which has Reliable Electronic All Aluminum Lean Burn (REAL) engine. The vehicles generally gives 47 to 50n km per liter on IDC (Indian Driving Cycle) as prescribed by the ARAI. The mileage and fuel consumption usually depend on various other factors like road conditions, riding habits of drivers, gear positioning speed of the vehicle etc. As soon as a complaint dt. 23.2.01 was received by 1st opposite party from the complainant, the 1st opposite party’s Service Engineer Mr.Mahalingam would visit Vellore on 26.2.01 who met the complainant and inspected the vehicle. The Service Engineer also offered to replace the carburetor and for that purpose requested to once again bring the vehicle for servicing after a few days after the parts were received from Chennai. The 1st opposite party also sent a letter dt. 12.4.01 stated that the Service Engineer Mr.T.Ganapathy, along with the Regional Service Manager planned to visit Vellore the exact date will be communicated to him later. But the complainant has not brought the vehicle to the 2nd opposite party for replacement of the carburetor. There are no manufacturing defects in the complainants vehicle. Therefore, there is no deficiency in service or unfair trade practice on the part of the opposite parties. 9. The contention of the complainant that from the inception of purchase the aforesaid vehicle, it gives versatile troubles and poor consumption i.e. starting problem, Offed condition, and Consumption of fuel – 28 to 30 km / pl. From the perusal of Ex.A1, dt. 17.7.00 Proforma Invoice, Ex.A2, R.C. book of the said vehicle and Ex.A3, dt. 23.2.01 complaint sent to the 1st opposite party it is seen that the complainant has already used the vehicle for more than 7 months, till the date of his complaint Ex.A3, dt. 23.2.01, the complainant has never made any complaint about the vehicle. On perusing the complaint Ex.A3, dt. 23.2.01 the complainant mentioned that the 1st opposite part’s leaf let clearly mentioned that the poor consumption will be 47-50 km p.l, but the said vehicle consumption of fuel only – 28 to 30 k.m. pl. The complainant has never made any complaint about the starting problem and offed condition of the vehicle in his complaint Ex.A4, dt. 23.2.01. From the perusal of proof affidavits of the complainant and the opposite parties it is seen that the complainant has not availed the free services or semi paid service within the warranty period. 10. It is admitted facts of the parties that after seven months from the date of purchase of the said vehicle the 1st opposite party received a complaint Ex.A4, dt. 23.2.01. According to the 1st opposite party after receiving the said complaint, the 1st opposite party’s Service Engineer Mr. Mahalingan, would visit Vellore on 26.2.01 and met the complainant and inspected the vehicle. The said Service Engineer offered to replace the Carburetor and requested the complainant to once again bring the vehicle for service after a few days after the parts were received from Chennai. But the complainant has not brought the vehicle to the 2nd opposite party for replacement of the carburetor. The 1st opposite party stated in the letter Ex.B4, that the complainant’s letter dt. 23.2.01 regarding the complaint of fuel consumption in his vehicle, in this connection the Service Engineer, Mr.T. Ganapathy, along with the Regional Service Manager planned to visit Vellore the exact date will be communicated to him shortly. But the complainant has not contact with 2nd opposite party or brought the vehicle for service. The complainant already used the vehicle for more than seven months till the date of his complaint. Ex.A3 the complainant has not made any complaint about the starting problem and offed condition of the vehicle except the poor fuel consumption. 11. The learned counsel for the opposite parties have argued that the complainant has not let in expert opinion or evidence to substantiate his allegation that his vehicle suffers from defects and gives poor fuel consumption. In this connection the learned counsel for the opposite parties have relied upon the following Judgement of State Consumer Disputes Redressal Commission, Punjab : Chandigarh Pominder Pal Jaswal Versus The premier Automobiles Ltd. & Ors. Wherein the State Consumer Disputes Redressal Commission, Punjab. Chandigarh is held that “Consumer Protection Act, 1986 – Sections 2 (1) ( c) and 2 (1) (g) – Complainant purchased a new car – Defects noticed immediately after taking delivery Complainant not entitled to replacement as neither manufacturing nor any material defect persists – Complaint not supported by any evidence worth the name – No affidavit to sustain the allegations placed on record by complainant – Complaint dismissed – Cost awarded to respondent. “ The authorities cited by the learned counsel for the opposite parties are squarely applicable for the facts and circumstances of this case. 12. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to A4 and Ex.B1 to B4, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite parties herein. Hence we answer this point (a) as against the complainant herein. 13. POINT NO : (b) In view of our findings on point (a), since, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite parties herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him, in this complaint. Hence we answer this point (b) also as against the complainant herein. 14. In the result this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 13th day of July 2010. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- 17.7.2000 - X-copy of Proforma Invoice. Ex.A2- -- -- - X-copy of R.C.Book. Ex.A3- 23.2.01 - X-copy of Fax message. Ex.A4- -- - X-copy of Receipt. Opposite parties’ Exhibits: Ex.B1- 19.7.99 - X-copy of ARAI Certificate for compliance to the specification. Ex.B2- 25.3.01 - X-copy of ARAI Certificate for conformity of production. Ex.B3- 20.3.98 - X-copy of ARAI repot for fuel consumption. Ex.A4- 12.4.01 - X-copy of letter from 1st opp party to complainant. MEMBER-I MEMBER-II PRESIDENT.
| | [HONORABLE K.Dhayalamurthy] Member[HONABLE MR. JUSTICE Thiru A.Sampath] PRESIDENT[HONORABLE TMT .G.Malarvizhi] Member | | 
