Date of decision :14.2.2008<br /> Narinder Kumar son of Ram Lal resident of House No. 587/4, Mohalla Seenpura Tehsil and District Kapurthala.<br /> Complainant.<br /> Versus<br /> 1. Innovative Automobiles, Circular Road, Kapurthala through its Partner ms.Shinam Sehgal D/o Sh.Rajinder Sehgal and Rachit Sehgal son of Sh.Surinder Sehgal both resident of 419, New Jawahar Nagar, Jalandhar.<br /> 2. The Manager, Royal Enfeld 26, Madhya Marg, Ist Floor, Sector 26, Chandigarh 160019.<br /> 3. Divisional Manager, Royal Enfield, Eicher Motors Limited, Tiruvottiyur High Road, Tiruvottiyur, Chennai 600019.<br /> Opposite parties.<br /> Complaint under the Consumer Protection Act.<br /> Quoram : Sh.A.K. Sharma President.<br /> Sh.Surinder Mittal Member.<br /> Quoram : Sh.Sushil Kapoor counsel for complainant. <br /> Sh.P.S. Bawa counsel for opposite parties.<br /> JUDGMENT ( SH.A.K. SHARMA PRESIDENT.)<br /> Present complaint under Section 12 of the Consumer Protection Act 1986 as amended upto date has been filed by the complainant against the opposite parties i.e. Innovative Automobiles Circular Road Kapurthala through its partner and others seeking direction against the opposite parties to exchange the motorcycle with a new motorcycle under the warranty condition and for monetary compensation on account of deficiency in service on the part of opposite parties.<br /> 2. In nutshell the facts in the complaint are that complainant was induced by the opposite parties to purchase a Motor Cycle Bullet Electra bearing chassis No.6BF695009 E, Engine No.6BF695009 E, year of manufacture 2006, bearing Registration No. PB09 H 2272 by stron advertisements being carried out by opposite party No.3 on media, in all the leading national details and also in the major magazines. Consequently he purchased the motorcycle from opposite party No.1 at Kapurthala authorised dealer of opposite parties No.2 and 3 after obtaining loan from the Corporation Bank. It is further alleged that motorcycle purchased by him did not perform as per specifications being advertised by the opposite parties. The motorcycle was suffering from many defects. There was a defect in the cylinders Burrell, Rings Crank, and main defect in the motorcycle in piston i.e. cylinders Burrell. He visited the workshop of opposite party No.1 at Kapurthala on 16/5/2007 and 18/5/2007. Opposite party No.1 gave assurance tohim that all defects of the motorcycle would be removed free of cost as early as possible but inspite of t hat motorcycle was not repaired and new defect had arisen in the motorcycle in piston. Even after completion of four services by the opposite party No.1 by which time his motorcycle had crossed travelling of 3400 K.M. on road but it never improved its performance despite of assurance given by opposite party No.1.. Opposite party was requested many a times to remove the defects in the motorcycle as the same was within warranty period but they refused to do so. Complainant is therefore entitled to the reliefs on account of deficiency in service on the part of opposite parties.<br /> 3. Opposite parties appeared and raised preliminary objections that complaint is not maintainable in the present form and that complainant is ngeligent of his own act and conduct in handling and plying the motorcycle in question as per rules, instructions and norms of the warranty. This fact is not disputed that complainant visited the showroom of opposite party No.1 and purchased motorcycle in question. However it is denied that there was defect in the cylinder barrel, piston, Rings, Crank etc. as alleged.. The complainant visited the workshop of opposite party No.1 at Kapurthala on 16/5/2007 for getting fourth free service of the motorcycle in question and at that time, the complainant after fully satisfying the services done by opposite party NO.1 signed the job card. There was no problem in the motorcycle and it wa in okay condition. On 18/5/2007 he again visited the workshop of opposite party No.1 and told the partner of opposite party No.1 that he has driven the motorcycle with fast speed and shifted the fifth gear immediately to first gear suddenly at high speed instead of shifted the same at proper speed and sequence wise which gives bad jerk to the piston/cylinder burrels etc. of the motorcycle. As such complainant himself is responsible for driving the motorcycle negligently and rashly against the instructions of the opposite party.. It is further pleaded that till getting fourth free service of the motorcycle in question from opposite party No.1 he never lodged any complaint regarding any defect in the motorcycle to the opposite party. Therefore, there is no deficiency in service on the part of opposite parties. However, opposite party is still ready to to remove the defects in the motorcycle, if any to the satisfaction of t he complainant in the presence of some expert in Automobiles.<br /> 4. In support of his version complainant has tendered in evidence affidavit Ex.CX and documents Ex.C1 to C5.<br /> 5. On the other hand opposite parties produced in evidence affidavit Ex.RA and documents Ex.R1 to R20.<br /> 6. We have heard arguments of lerned counsel for the parties and perused ocular as well as documentary evidence on the record. Learned counsel for the complainant has vehemently urge before us that opposite parties are guilty of woeful deficiency in service as they failed to exchange the motorcycle Bullet Electra having manufacturing defects despite being brought to the notice of opposite parties No.2 and 3 and as such he was entitled to the replacement of the said vehicle with a new one. On the other hand learned counsel for the opposite parties has urged that firstly complainant is himself negligent of his own act and conduct in handling and driving the motorcycle in question contrary to the rules, instructions and norms of warranty and secondly, complainant had nowhere articulated his grievances about the defects in the motorcycle purchased by him despite getting four free services done on it as per job cards dlivered to him . However he further pleaded that opposite party is still ready to remove the defects in the motor cycle if any to the satisfaction of the complainant in the presence of some automobile expert as appointed by this Forum.<br /> 7. We have considered rival contentions of counsel for the parties. We find merit in the contentions of learned counsel for the complainant partly because of the inconvenience suffered by the complainant in rendering service to the complainant. Complainant purchased motor cycle bullet Electra year of manufacturing 2006 bearing Registration No. PB-09 H 2272 in March 2007 from opposite party No.1. He has alleged in the affidavit Ex. CX that there was defect in the cylinder Burrell i.e. Piston besides Rings and the crank and brought to the notice of opposite party on 16/5/07 and 18/5/07. He has also produced in evidence job cards Ex.C2 to C5. It is further alleged that after completion of four free services by opposite party No.1 it had not improved its performance though he had crossed traveling of 3400 KM. Undoubted opposite party proved replacement of timing pinion and Ring set vide job card Ex.C4 dated 28/3/07. However defence plea of the opposite party in the affidavit of Rachit Sehgal Ex.R1 is that all four services of the motor cycle in question were done to the satisfaction of the complainant in all respects and at the time of fourth service on 16/5/07 the motorcycle was generally check-up, oil and oil filler of the motor cycle was changed after getting its charges as mentioned in the job card and the complainant put his signatures on the job card that there is no problem in the motor cycle and the motor cycle was in okay condition. There was no defect in the cylinder barrel, piston rings, crank etc.. Opposite party No.1 regretted of inconvenience caused to the complainant in the letter Ex.R17 dated 4/6/07 and to remove defects in the bullet motor cycle to his entire satisfaction. This fact is further not disputed that for amicable settlement of the parties, this Forum directed opposite party No.1 for mechanically testing of the vehicle and for removing the defects therein to bring it in smooth working condition. Sh.Manmohan Krishan Advocate was appointed as Local Commissioner for the test drive after removal of the defects. Consequently opposite party No.1 replaced cylinder barrel and crank vide bill dated 18/5/07 Ex.R4 Ex.R4. Sh.Manmohan Krishan Advocate L.C. also reported that on 15/1/08, complainant was asked to take drive and check the vehicle before he check himself. Complainant drove the vehicle and showed his satisfaction from all respects. Thereafter he also took test drive of the vehicle and was satisfied about its performance after driving upto 2 KM. No doubt only estimate for replacement of the cylinder barrel and other parts was made vide Ex.R4 dated 18/5/2007 but these were replaced as a result of intervention by this Forum vide order dated 7/1/08 and thus caused inconvenience and also suffering to the complainant for a period of about six months as he was handicapped to avail of services of motor cycle. Opposite party, no doubt, attempted to highlight its efficiency in service in redresal of the service of its customers vide Ex.R11 to R16 but these documents do not exonerate lukewarm conduct of opposite party in the peculiar facts and circumstances of the present case . On the other hand learned counsel for the complainant has urged for replacement of the entire vehicle/motor cycle and relied upon the case reported as Tata Engineering & Locomotive Company Ltd. versus Chaandrashekar and others 3006 (2) Judicial Reports Consumer 525 and another case reported as M/s LML Limited & Ors. vs. Mr. B.P. Tyagi 1 (1999) CPJ 219 and also case reported as Surinder Mohan Sharma vs. Managing Director Hero Honda Motors Ltd. & Ors. II (2000) CPJ 127.However close analysis of facts of the above cases distinguish from the facts of the present case because there was no inherent manufacturing defect in the engine of the vehicle and few defective parts since replaced with a new one by the opposite party and had brought the motor cycle in question in smooth working condition. We do not find justification for the replacement of entire motor cycle with a new one. Nevertheless inconvenience and mental agony suffered by the complainant cannot be ignored because he was deprived of utility of motor cycle for a period of about six months .<br /> In the ultimate analysis of aforesaid discussion we accept the complaint partly to the extent of awarding monetary compensation of Rs.10,000/- for mental agony and physical inconvenience due to deficiency in service on the part of opposite parties besides cost of litigation to the tune of Rs.500/- which would be paid by the opposite parties to the complainant within a period of one month from the receipt of copy of this order.<br /> Let certified copies of judgment rendered be supplied to the parties without any unnecessary delay and thereafter file be consigned to record room.<br /> <br /> Announced : ( Surinder Mittal ) ( A.K. Sharma )<br /> 14.2.2008 Member President.<br /> <br />