BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 182 of 2020.
Date of Institution : 24.08.2020
Date of Decision : 29.09.2023
Himanshu aged about 22 years son of Dr. A.K. Narwal, resident of H. No. D-25, CDLU Campus Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
1. Gulzar Motor Agencies, Near Bus Stand, Hisar Road, Sirsa through its authorized person.
2. Badhwar & Company, Delhi Road, Near Sonipat Stand, Rohtak- 124001 (Haryana) through its authorized person.
3. Royal Enfield, No. 624, Tiruvottiyur High Road, Chennai Tamilnadu- 600019 through its authorized person.
..…Opposite parties.
Complaint under Section 35 of the Consumer Protection Act, 2019.
BEFORE: SH. PADAM SINGH THAKUR ………………PRESIDENT
MRS.SUKHDEEP KAUR………………………MEMBER.
SH. OM PARKASH TUTEJA …………………MEMBER
Present: Smt. Pushpa Mehta, Advocate for the complainant.
Sh. A.K. Siroha, Advocate for opposite parties no.1 and 2.
Sh. Sushil Saharan, Advocate for opposite party no.3.
ORDER:-
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred as OPs).
2. The case of the complainant, in brief, is that op no.3 is manufacturer of Royal Enfield Bikes, op no.2 is the authorized service centre of op no.3 and op no.1 is authorized dealer of op no.3. That he had purchased one new motor cycle Royal Enfield from opposite party no.1 for a sum of Rs.1,75,000/- vide bill dated 16.08.2019. Thereafter, complainant got registered the said motor cycle in his name vide registration No. HR-24AB-4786. It is further averred that within a period of two three months, the chrome material of the bike including mirrors, indicators, speed meter and handle etc. started rusting away and further there was gear and clutch problem. On 30.09.2019 for the first time the complainant got his bike serviced from the authorized service centre and paid Rs.1138/- against receipt No.33001 and thereafter the fuel tank of motor cycle also rusted away. On 19.11.2019 complainant reported the said problems to the ops and they asked to get the motor cycle serviced and it was promised that after service said problem shall be removed and thus he got serviced his bike by paying Rs.937/- against receipt/ job card No. RJC0105192005654. It is further averred that however there was no result of the said service and complainant sent emails to the ops on 28.12.2019, 29.12.2019, 4.7.2020, 7.7.2020 and lastly on 18.7.2020 with photographs of vehicle and also made telephonic calls to the ops but to no effect. The complainant was asked to get the same inspected from op no.2 and accordingly the complainant took the motor cycle to op no.2 for inspection and necessary replacement but op no.2 raised hands in this regard and simply stated that even the indicators and other parts are not available and same shall be available in the next month. That number of other issues i.e. clutch and gear problem etc. are also being faced by complainant. It is further averred that complainant has been repeatedly requesting all the ops but the ops lingered on the matter and he was also misbehaved. The motor cycle of complainant is lying parked unused and does not start. It is further averred that thereafter also he was asked to get the same serviced and accordingly he got serviced the bike on 6.7.2020 by paying Rs.1063/- to op no.2 but no improvement was seen and all the above problems are still in the motor cycle. That such act and conduct on the part of all the ops clearly amounts to deficiency in service and unfair trade practice which resulted into unnecessary harassment and further the condition of vehicle is deteriorating day by day and same has become un-roadworthy. It is further averred that complainant thereafter requested the ops no.1 and 2 either to replace the motor cycle or to make refund of the price alongwith interest but they flatly refused to admit his genuine claim. The complainant also got issued a legal notice to the ops on 24.7.2020 but of no avail. Hence, this complaint.
3. On notice opposite parties no.1 and 2 appeared. Op no.1 filed written statement taking certain preliminary objections. It is submitted that op no.1 is the dealer. The Gulzar Motors was closed/ wind up since 13.10.2021. The sale of motor bike is only subject to guarantee/ warranty given by manufacturing company. It is further submitted that no complaint has ever been received by op no.1 from the side of complainant. Moreover, in case the complainant had detected any such defects therein, he must have to get it lodged with the service centre of the company. But as per records of the service centre, no such complaint has ever been lodged by the complainant either with the replying op or with op no.2. The fact that there is defect in fuel tank of motor cycle is denied being incorrect. That as a matter of fact and record, the complainant got the first service of his motor bike on 30.09.2021, but he did not report any such defect in the bike to the service centre. Thereafter, complainant got service on 19.11.2019 and at this time also, he got his free service from the authorized service centre of the company and did not report any kind of alleged defects. It is further submitted that warranty of the vehicle is subject to the conditions of manufacturing company and in case the complainant would have reported any such defect at the time of service of the vehicle, same would have been redressed by the service centre according to norms of manufacturing company. The complainant has never approached to the replying op at any time complaining any kind of defect. It is further submitted that complainant has alleged defects of clutch and gear but has failed to produce any such documentary proof and this falsify his version. At the time of service, the defected parts were replaced to the satisfaction of complainant. Further, admittedly the complainant got the service of his motor bike on 6.7.2020 and even at that time no complaint with regard to defect in the fuel tank has ever been raised by the complainant. The replying op had provided the services to the complainant as and when he approached to their service centre. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
4. Op no.2 also filed written statement raising certain preliminary objections. It is submitted that replying op being the authorized service centre had provided all the due benefits of free service to the motor bike as per the norms of the company. The complainant had also availed the services to his entire satisfaction. As per records of the op no.2, the complainant approached the service centre first time at the running of motor bike at 505 Kms reading. The complainant got done the free service against free service coupon no.1 on 30.09.2019. The service was done as per the entire satisfaction of complainant. At that time he was conveyed about next due service as on 12.02.2020. It is further submitted that it is wrong to say that a sum of Rs.1138/- was paid by complainant on account of service charges. Thereafter the complainant of his own brought the motor cycle at the centre on 19.11.2019 and on the choice of complainant free service was done against second free service coupon. The second free service was done to the entire satisfaction of complainant vide job card dated 19.11.2019 and no such complaint has ever been raised by complainant regarding the rusting of fuel tank at the time of these services. After that complainant brought his motor bike on 06.07.2020 and at that time due service including change of liquid gun semi synthetic, oil service kit, carburetor and throttle body cleaner were done in the motor bike and against these parts costs of the parts were charged from complainant and complainant also being satisfied out of the services done by replying op paid it accordingly and with gate pass went away. The op no.2 had provided the services to the complainant as and when he approached to their service centre. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
5. Initially none appeared on behalf of op no.3 despite notice sent through registered cover and after stipulated period as none appeared on behalf of op no.3, therefore, op no.3 was proceeded against exparte.
6. It is pertinent to mention here that after leading of evidence on behalf of complainant and ops no.1 and 2 when the case was fixed for arguments, op no.3 appeared through counsel and placed on file the copy of the order dated 13.12.2022 passed by Hon’ble State Commission whereby exparte proceedings dated 27.12.2021 against op no.3 was set aside and op no.3 was afforded one opportunity to file reply and lead evidence etc. Accordingly, op no.3 also filed written statement raising certain preliminary objections regarding maintainability and that as per clause 1 of the warranty terms and conditions answering op will replace or repair defective parts at their dealership and authorized service center free of charge within a period of two years/ 30,000 kms. from the date which is earlier. Further more, as per clause 7 warranty shall not apply to normal ageing, deterioration or rusting of painted parts, paints coat, rubber parts, soft items, glass items, plastic parts etc. On merits, it is also submitted that allegation regarding manufacturing defect are baseless, unfounded and deliberate. The complainant approached the authorized service center and complainant was provided best to best services. While reiterating the submissions of ops no.1 and 2, it is also submitted that as per policy of answering op if there is any rusting in the petrol tank of a bike, the answering op would replace it and they would have the done the same if there was any such issue. As per the service records neither there was any such issue nor complainant mentioned it to op no.1 at the time of second service. It is further submitted that further more the complainant mentioned that there was issues with the many parts of the bike such as indicators and wanted to get them replaced but the same complaint was entertained and the parts were replaced by op no.1 on 31.12.2019, thus this allegation of complainant is completely false. That problems with the motor cycle if any have been taken care and rectified by op no.1 and op no.2 and the motor cycle is in perfect working condition. It is further submitted that if there is any problem or defect with a part of the bike, the said part is replaced and not the complete vehicle as per the standard policy and warranty terms and conditions of the company. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
7. The complainant has tendered his affidavit Ex. CW1/A and documents and photographs as Ex.C1 to Ex.C22.
8. Ops no. 1 and 2 have tendered affidavit of Sh. Daljeet Singh Badhawar, Prop/ authorized person as Ex.R1 and thereafter did not lead any other evidence despite availing several opportunities and as such their evidence was closed. Op no.3 at the time of filing written statement placed on file copies of documents i.e. warranty terms and conditions as Annexure R1 and tax invoices of services with vehicle delivery (gate passes) Annexures R2 to R4.
9. We have heard learned counsel for the parties and have gone through the case file carefully.
10. Admittedly on 15.08.2019 complainant had purchased a Royal Enfield Motor cycle from op no.1 for a sum of Rs.1,55,280/- as is evident from tax invoice Ex.C9 and delivery challan Ex.C7. According to complainant op no.1 had charged a sum of Rs.1,75,000/- from him which included the sale price of the motor cycle, its accessory, insurance as well as registration charges. The said motor cycle is manufactured by op no.3. The said motor cycle in question was also got registered by complainant in his name on 20.08.2019 from Registration Authority, Sirsa vide registration No. HR-24AB4786 as is evident from copy of registration certificate Ex.C6. The grievance of the complainant is that just within period of two/ three months of purchase of the motor cycle in question, the chrome material of the motor cycle including mirrors, indicators, speed meter, handle etc. started rusting away and there was also problem of gear and clutch of motor cycle in question. It is further case of complainant that ops have failed to redress his genuine grievance despite several requests and even the fuel tank of the motor cycle also caught rust after service from op no.2 and even on 19.11.2019 he again got serviced the motor cycle by paying Rs.937/- on the asking and assurance of op no.2 that after service said problem shall be removed but there was no result of the same. In this regard complainant has also pleaded that he also sent various emails to the ops on dated 28.12.2019, 29.12.2019, 4.7.2020, 7.7.2020 and on 18.7.2020 and has also placed on file emails as Ex.C20 to Ex.C22 in which also above said issues were raised by complainant to the ops. Although ops have denied each and every allegations of complainant but have failed to prove on record that said motor cycle in question of complainant is not having any defect and is in working condition. On the other hand, complainant has placed on file photographs of the motor cycle as Ex.C13 to Ex.C19 which go to show that various major parts of the motor cycle have caught rust and these photographs are of dated 28.12.2019 which prove the fact that just within four months of purchase of motor cycle, the major parts of the motor cycle i.e. chrome of the meter, chrome of the front lights, handle, chrome of the mirror and entire front tyre portion of the motor cycle got rusted. The complainant made his best efforts for obtaining expert opinion by moving an application in this regard which was allowed and a report was sought from Honda agency about defect in the motor cycle but however, that agency vide their letter dated 27.07.2023 informed showed their inability to give report on the ground that rusting issues are beyond their expertise. However, in this case it is established on record through photographs of the motor cycle in question that major parts of the motor cycle have been rusted away. In this regard, the Hon’ble Supreme Court in case titled as Hyundai Motor India Limited versus Shailendra Bhatnagar reported in 2022(2) Law Herald (SC) 1569 relied upon by learned counsel for complainant has held that “Photographs of the damaged vehicle showed substantial frontal damage. Therefore, expert evidence was not necessary in the subject case.” In the present case also, the photographs of the motor cycle which are of dated 28.12.2019 i.e. just after four months of purchase of motor cycle show substantial rusting of the motor cycle in question and as such it is proved on record that root cause of rusting in the motor cycle is due to manufacturing defect. Further more, the op no.3 who has also automobile engineers/ expert persons and is claiming itself a renowned company has not proved through any cogent and convincing evidence that motor cycle is not having any manufacturing defect and that same is repairable. It is also proved on record that defect in the motor cycle are to such extent that same is not repairable. The complainant despite spending huge amount of Rs.1,755,000/- for purchase of motor cycle in question (which also includes registration and insurance charges) remained unhappy throughout and have suffered unnecessary harassment from the ops. In these circumstances, the ops are liable either to replace the motor cycle in question with a new one of Royal Enfield motor cycle or to make refund of the price of the motor cycle in question to the complainant i.e. Rs.1,55,280/- to the complainant as charged by op no.1 for sale of motor cycle in question.
11. In view of our above discussion, we allow the present complaint and direct the opposite parties either to replace the motor cycle in question with a new one same model of Royal Enfield company or to make refund of the amount of Rs.1,55,280/- to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which the complainant will be entitled to receive the above said amount of Rs.1,55,280/- alongwith interest @6% per annum from the date of this order till actual realization. We also direct the ops to further pay a sum of Rs.10,000/- as composite compensation for harassment and litigation expenses to the complainant within above said stipulated period. All the ops are jointly and severally liable to comply with the above said order. The complainant will hand over the motor cycle in question either to op no.1 or to op no.2 against proper receipt within time. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced. Member Member President Dt. 29.09.2023. District Consumer Disputes
Redressal Commission, Sirsa
