FINAL ORDER/JUDGMENT           

SHRI SWAPAN KUMAR MAHANTY,   PRESIDENT

            To put in nut shell the case of the complainant is as follows:-

            Complainant purchased a “KTM” Duke 390” Motor Bike from OP-2 OSL Auto Pvt. Ltd. an authorized dealer of OP-1 having Engine No.  793812696, Chassis No. MD2JPJYB6HC220324 for Rs. 2,68,880/-. Complainant started plying the bike on road on  27.05.2017 and on the first day,  the complainant realized that cropping up in the throttle and in the head light of the bike.  Complainant brought the bike  to the  workshop/service centre of OP-1 and asked them to repair the defect. Mechanics of services centre repaired the chain and tightened the rear suspension. Suspension is still defective. Prime defect of the bike is vibrating the headlight, throttle was not working and suspension got loosened. Service personnel repair the defects temporarily with rubber bands and washers. On account of defect in bike and not removing the defect, the complainant could not ridden it. The bike is defective since purchase and is not repairable. The bike is lying at the service centre since 26.12.2018. Complainant claims Rs. 2,68,880/- being the price of the Motor Bike, Rs. 2,00,000/- for mental agony and Rs.  50,000/- as litigation cost  on the allegations that OPs are committed deficiency in service. Hence,  the complaint is filed on  19.03.2019.

            OP-1 KTM  India has contested the case by filing WV on 29.07.2019. In the WV it has been stated that there is no manufacturing defect in the Motor Bike and minor problem cropped up due to improper used of the bike. There is no deficiency in service and/or unfair trade practice on the part of the answering OP. The motive of the complainant is to extort money from the OPs illegally and without any cogent reason. The complaint is not maintainable and liable to be dismissed.

            Despite service of notices of complainant, OPs 2 top 7 did not turn up to contest the case by filing WV within the stipulated period as provided under the CP Act. Thus, the case runs ex parte against the OPs 2 to 7. In order to substantiate his case and claim, complainant has filed E/chief supported by an affidavit and also relied the documents annexed with the complaint petition. On the other side, OP-1 has also filed their E/chief supported by an affidavit. OP-1 did not rely any documents in support of their case.

            We have heard the Counsel for both the parties and perused through the material on record.

            In course of hearing, the Ld. Counsel on behalf of the complainant has contended that the subject bike is defective in the product, the manufacturer and dealer could not fasten their liabilities. It is further argued that subject bike was taken to the service centre of KTM /OP-4 for repairing on several dates but the Mechanic of OP-4 could not detect the defects and during warranty period. They changed the engine oil, oil filter and washed the bike and parts were also replaced. Till the subject  bike is lying to the service centre of OP-2/OSL  Auto Pvt. Ltd. Complainant pointed out the defects to the dealer and the dealer was also requested to replace the bike. However, they refused to do that.

            Refuting the complainant’s arguments, it is urged on behalf of the OP-1 that complainant could not establish that the subject bike is a defective product. It is also argued on behalf of the OP-1 that bike was sold to the dealer and the title of the property i.e. bike in question had passed to the dealer. In the circumstances, urged the OP-1, the onus squarely, lies upon the complainant to prove the alleged defect or deficiency in service. Since no evidence is lead in this regard. Thus, there is no deficiency in service on the part of the OP-1/manufacturer.

            Stressing that the manufacturer has no relationship with the consumer, i.e. complainant it is urged further that the complainant did not produce the purchase invoice of the bike to show its year of manufacturing, this is apparent and well known to the complainant. It is also submitted that the bike has already run 5544 km and the manufacturer have no deficiency in service and unfair trade practice within the meaning of the expression  under Section 2 (11) & 2 (47) of the Consumer Protection Act, 2019.

            Before proceeding further, it is essential to recapitulate the facts. Complainant purchased the subject KTM  DUKE  390 Bike from OP-2 OSL  Auto Pvt. Ltd. on payment of Rs.  2,58,880/-. Then, the complainant discovered that the subject bike started trouble and Mechanic of OP-4 KTM  Service Centre repaired it but again problem started during riding. The bike is still in the service centre they failed to handover the bike in defect free condition. Thus, the complainant alleges that the defect is inherent and un-repairable. Complainant never lodge any written protest with the dealer/OP-2 and only request the price of the bike.

            The liability of a manufacturer, such as the OP-1 was the subject matter of a decision of the Hon’ble Supreme Court in India Oil Corporation Ltd.  Vs. Consumer Protection Council, Kerala (Supra). There, the Hon’ble Supreme Court observed as follows:-

            “14. In order to decide this question it is necessary for us to look at clause 1 (a) of Ex. R-2. That is the Memorandum of Agreement between the Indian Oil Corporation Ltd. and M/S Karthika Gas Agency. That establishes the relationship between IOC the appellant and Karthika Gas Agency  as distributor of the Corporation, on principal to principal basis. The dealer shall act and shall always be deemed to have acted as principal and not as an agent or on account and not as an agent or on account of the Manufacturer, and the Manufacturer shall not in any way be liable in any manner in respect of any act or omission on the part of the dealer, their servants, agents and workmen in regard to such sale, repair or otherwise. The dealer shall be bound to inform the customers in writing of this provision, through correspondence or at the time of booking and/or sale to the customer. ”

            Thus, it is clear that the relationship is one of the principal-to-principal basis. Insofar as there is no privity  of contract between the OP-1/ Manufacturer and the complainant no “deficiency” as defined under section  2 (11) of the CP Act,  2019 arise. Therefore, the case against OP-1/manufacturer is not maintainable.

            No doubt, the absence of the dealer/OPs 2 and 3 or any explanation on their part, because the subject bike was in their possession and sold it to the complainant on  27.05.2017. Therefore, it is to expect that the OPs 2 and 3/dealer were aware of the physical condition of the subject bike prior to delivery it to the complainant. OPs  2 and 3/dealer may have allowed people to use the bike and/or prolonged idleness without proper upkeep could have resulted in the under carriage being corrugated. Moreso, the subject bike was taken to the service centre for removing of defect. OPs 2 and 3/dealer did not contest the case despite service of notices of the complaint. No evidence is forthcoming on their part to show that  subject bike was handed over to the complainant in good condition. OPs 2 and 3/Dealer adopted illegal and unfair means sold the subject bike to the complainant, which amounts to unfair trade practice. Thus, the OPs 2 and 3/dealer are liable to refund the price of the motor bike along with compensation in the form of simple interest @  6 % p.a. with effect from the committed date of delivery of Motor bike till the date of which refund of money actually offered in terms of this order.

            For the reasons stated hereinabove, the consumer case is disposed of with the following directions:-

(i) The OPs 2 and 3 OSL Auto Pvt.  Ltd. shall refund the sale price of Rs. 2,58,880/- along with compensation in the form of simple interest @  6 % p.a. w.e.f  27.05.2017 i.e. the date of purchase of KTM Duke  390  Motor Bike till the date on which refund of money actually offered to the complainant;

(ii) The OPs 2 and 3 are directed to pay cost of litigation to the tune of Rs. 10,000/- to the complainant;

(iii) The payment in terms of this order shall be made within three months from today.

Thus, the consumer case is dismissed on contest against OP-1 and also dismissed  on contest against OP-1 and also dismissed  ex parte against OPs 4,5, 6 and 7. The case is allowed ex parte against the OPs 2 and 3.

The complaint case could not be decided within the stipulated period due to heavy pendency of cases and due to pandemic of covid-19.

A Copy of this judgment be provided to all the parties free of cost as mandated by the CP Act, 2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties. File be consigned to the record room along with a copy of this judgment.