BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P. No. 208/2001 Filed on 07.05.2001 Dated : 15.11.2010 Complainant: A.J. Jose, S/o Thomman Joseph, residing at T.C 4/1174(2), Teachers Lane, Kuravankonam, Kawdiar P.O, Thiruvananthapuram.
(By adv. K. Prem Kumar) Opposite parties :
M/s Royal Enfield Motors, P.O. Box 5484, Tiruvottiyur High Road, Thiruvottiyur, Chennai-600 019 represented by its Managing Director.
(By adv. S.S. Kalkura)
M/s Grand Motors and Services (Pvt) Ltd., P.O Box No. 608, Saraswathi Building, Karamana P.O, Thiruvananthapuram-695 002 represented by its Managing Director.
(By adv. R. Jagadish Kumar)
This O.P having been taken as heard on 31.08.2010, the Forum on 15.11.2010 delivered the following:
ORDER SRI. G. SIVAPRASAD: PRESIDENT The facts leading to the filing of the complaint are that complainant purchased a 350 CC motor bike, Machismo A 350, manufactured by the 1st opposite party bearing Engine No. OSJ 01273 and Chassis No. OSJ 01273 from the 2nd opposite party on 03.06.2000, that after using the said motor bike for a week, it had started developing complaints. At first, the troubles were minor, but later on after about 2 weeks of use there was significant change in the performance of the bike. On 21.07.2000 it was entrusted to the 2nd opposite party for first free service that complainant had specifically stated to the 2nd opposite party that the bike has developed various complaints within a short span of time such as oil leak from both sides of the engine, shock absorber failure, over heating of the engine etc. 2nd opposite party did their best to rectify the defects. The second free service was on 30.10.2000 when it ran 2127 km, 3rd free service on 06.02.2001 when it ran 3288 km and final free service on 20.03.2001 when it ran 4375 km. All services were done in compliance with the instructions of the manufacturer which is a pre requisite to future warranty consideration. After the 4th service the bike had several complaints such as knocking sound from the engine, oil leak from the engine, knocking of the valves, starting trouble, low mileage, dynamo complaint, clutch complaint, trouble with chain and sprocket, excess emission of smoke etc. Although the bike underwent repairs and spare parts changed by 2nd opposite party several times, the troubles still continued. Finally getting fed up with the complaints, the 2nd opposite party's mechanics had informed the complainant that the new version of bullet Machismo A 350 has serious manufacturing defects which are incurable. On 16.03.2001 complainant had caused to effect an advocate notice to opposite parties to take back the defective motor bike and replace it with a new one or to pay back the sales consideration paid for the bike plus compensation of Rs. 10,000/-. Complainant is deprived of using his motor bike due to the above said reasons. Hence this complaint to direct opposite parties to take back the defective motor bike and replace it with a new one or in the alternative to pay an amount of Rs. 62,000/- being the purchase amount paid for the bike by the complainant and pay compensation of Rs. 10,000/- along with costs. Opposite parties filed version contending interalia that the complaint is not maintainable either in law or on facts, that complainant has no bonafides whatsoever in filing this complaint, that it is true that complainant had purchased the Royal Enfield Machismo A 350 motor bike from the 2nd opposite party, that the said vehicle was received by the complainant in good condition along with user manual together with free service coupon duly stamped, battery guarantee card and tool kit etc, that the vehicle has been manufactured by the 1st opposite party and 2nd opposite party is the authorized dealer and service centre, that the complainant had purchased the vehicle of his own free will, choice and after satisfying himself the efficiency, quality and performance of the vehicle, that the allegation that the motor bike started giving trouble one by one after one week after purchase and continuously thereafter till date are bereft of truth, that the repairs that were carried out were on account of rough handling and improper maintenance of the vehicle on the part of the complainant and all the complaints were promptly attended and rectified by the dealers then and there, that no major works were carried out on the vehicle and the repairs that were carried out were routine in nature and nothing to do with manufacturing defects, that the allegations are made with ulterior motive and to tarnish the image, reputation and goodwill of the opposite party, that the defects if at all has arisen the same is only on account of improper usage of the vehicle and that the vehicle is not having any manufacturing defects at all. Complainant has no cause of action against the opposite parties and complainant is not entitled to any of the reliefs claimed in the complaint. Hence opposite parties prayed for dismissal of the complaint. The points that arise for consideration are:- Whether the motor bike purchased from the opposite parties was having manufacturing defects? Whether the defects found are repairable? Whether the complainant is entitled to get a new motor bike or in the alternative price of the defective bike? Whether the complainant is entitled to compensation and cost?
In support of the complaint, complainant has filed affidavit as PW1 in lieu of chief examination and has marked Exts. P1 to P7. Commission report has been marked as Ext. C1 and Commissioner has been examined as CW1. In rebuttal, 1st opposite party has filed affidavit as DW1 and has marked Exts. D1 to D4. Points (i) to (iv):- Admittedly, complainant had purchased a Royal Enfield Machismo A 350 motor bike manufactured by the 1st opposite party from the 2nd opposite party on 30.06.2000. It has been the case of the complainant that the said bike was supposed to be a new advanced version of the older bike manufactured by the 1st opposite party, that soon after the purchase, it has started to develop various complaints like oil leak from the engine, shock absorber failure and overheating of the engine which were rectified by the 2nd opposite party, that even after the 4th free service was done on the bike, the vehicle had several complaints like knocking sound from the engine, oil leak from the engine, knocking of the valves, starting trouble, low mileage, dynamo complaint, clutch complaint, trouble with chain and sprocket etc. It has also been the case of the complainant that although the bike underwent repairs and spare parts changed by 2nd opposite party several times, the trouble continued, that the engine was making unnatural sound and engine oil leak could not be rectified by the 2nd opposite party. CDI ignition was a complete failure, that 2nd opposite party's mechanics as well as workshop supervisor had informed the complainant that the new version of bullet Machismo A 350 has serious manufacturing defects which are incurable. It has been contended by opposite parties that all the complaints were duly recorded and the same were duly rectified whenever required and that the repairs that were carried out were on account of rough handling and improper maintenance of the vehicle on the part of the complainant. Ext. P1 is the copy of the advocate notice addressed to opposite parties dated 16.03.2001 informing them about the defects of the vehicle. Ext. P2 is the acknowledgement card. Ext. P3 is the reply to Ext. P1 issued by 1st opposite party. Ext. P4 is the reply notice to notice dated 16.03.2001. Ext. P5 is the copy of the certificate of registration. Ext. P6 is the copy of the owner's manual. Ext. P7 is the receipt issued by 2nd opposite party. Ext. C1 is the Commission Report. As per Ext. C1, Expert Commission inspected the vehicle in dispute on 03.12.2002, that at the time of inspection odometer reading was 7377.2 km. Expert commissioner has reported that air pressure of tyres checked and found OK, fuel tank inspected, engine oil level checked with dipstick and found OK, battery voltage checked and found OK, the vehicle started without any problem, idle running was not smooth, slow speed adjusted. But the vehicle failed to accelerate even after 5 minutes idle running. Road test was conducted. Abnormal sound and knocking were noticed. Knocking observed at a speed of 40 km/hr. Reason for knocking are load demand variation. Engine noise is the contribution of various factors like improper valve seating, defective valve spring, defective push rods, high rocker arm/tappet clearance etc. The design of push road is improper, deformation or elongation may happen, leads to malfunction of engine. After 500 metres trial run the vehicle stopped automatically. Smoke level is found on the higher side. Burning smell of oil is also felt. Heat generated by the engine was also high. Vehicle could not test further since the vehicle is not in running condition (fails to accelerate the engine). 2nd opposite party did not submit the job cards or service records. It is stated in the report of the commissioner that he had requested the 2nd opposite party to submit the job cards of the vehicle in dispute at the time of inspection-in the notice served to them on 14.11.2002. Electronic ignition system found OK. It is stated in the report by the commissioner that complainant informed him that 2nd opposite party replaced certain components in the magneto, but no records available. Heavy oil leak observed through the kick starter side cover. The pulling power of the vehicle is inadequate for the functional performance of the vehicle. It is noticed that removal of engine oil cap is difficult due to design problem. Commissioner has concluded that the present condition of the vehicle is defective, engine noise and knocking felt very high. This is a manufacturing defect. Heavy oil leak observed through kick starter side cover. This is a manufacturing defect. The vehicle is not road worthy and cannot be used with existing condition. Since the 2nd opposite party failed to produce the job cards/history cards of the vehicle, the details of work done, spares replaced under warranty were not ascertained. Ext. D1 is the copy of the vehicle installation form. Ext. D2 is the carbon copy of the job card dated 30.10.2000. Ext. D3 is the carbon copy of the job card dated 19.03.2001. Ext. D4 series includes copies of various job cards dated 17.10.2000, 24.10.2000, 02.12.2000, 05.01.2001, 06.01.2001 and 24.02.2001. On perusal of Ext. D2 to D6 it is seen that complainant has informed the 2nd opposite party about various complaints as alleged in the complaint. It is pertinent to point out that Ext. D4 series do not bear the signature of the customer whereby it casts doubts whether all the complaints furnished by the customer have been recorded in the job cards. Further it is to be noted in the commission report that commissioner has reported that 2nd opposite party did not furnish the job cards even after directing him to do so. Opposite parties have filed objection to commission report and commissioner has been examined by opposite parties. In his cross examination by opposite parties, when asked “ഉപയോഗിക്കാത്ത വണ്ടിയാണെങ്കില് ഉടനെ start ആകുമോ? (Q) Petrol-ഉം engine condition-ഉം ശരിയാണെങ്കില് ഉടനെ start ആകും (A). Abnormal sound എവിടെ നിന്നു വന്നു എന്ന് പറഞ്ഞിട്ടുണ്ടോ?(Q) ഇല്ല (A). Knocking എന്നു പറഞ്ഞാല് engine-ല് നിന്ന് എന്നാണ് ഉദ്ദേശിക്കുന്നത്. അത് അറിയണമെങ്കില് engine complete dismantle ചെയ്യണം. Top gear ഇട്ട് slow speed-ല് പോയാല് knocking ഉണ്ടാകുമോ (Q) 40 km-ന് താഴെയാണെങ്കില് ഉണ്ടാകാം. ഒരു വിധം നിരപ്പായ road-ല് ആണ് driving test നടത്തിയത്. Ext. C1-ല് para 12-ല് പറയുന്ന defects engine തുറക്കാതെ അറിയാന് കഴിയില്ല എന്നു പറയുന്നു(Q) ശരിയല്ല (A). Engine oil കൂടുതല് ഉണ്ടായിരുന്നു എന്ന് പറയുന്നു (Q) ശരിയല്ല (A). Para 14-ല് പറഞ്ഞിരിക്കുന്ന burning smell ഉണ്ടായിരുന്നില്ല എന്നു പറയുന്നു(Q) ശരിയല്ല (A). Opposite party-യോട് job cards ആവശ്യപ്പെട്ടിരുന്നു എന്നും അവര് അത് തന്നിട്ടില്ല എന്നും പറഞ്ഞത് ശരിയല്ല എന്നു പറയുന്നു (Q) നിഷേധിക്കുന്നു (A). Oil leak manufacturing defect ആയി വരാം. Job card-ല് പറഞ്ഞിരിക്കുന്ന defects ഒക്കെ repairable ആണ്. Parts replace ചെയ്താല് functionചെയ്യും. വണ്ടിയുടെ engine ഒന്നും open ചെയ്യാതെ assumption ഉപയോഗിച്ച് വാദിയെ സഹായിക്കാന് report file ചെയ്തതാണെന്നു പറയുന്നു. (Q) ശരിയല്ല (A). It is pertinent to point out that the entire D4 series job cards do not bear the signature of the customer. As such it creates shadow of doubts as to whether all the complaints furnished by the complainant during free services have been entered in the job cards. Further, opposite party did not furnish the same before the commission at the time of inspection. Further the complaint in hand was filed before this Forum during the warranty period, that is immediately after the 4th free service. Though the expert commissioner had inspected the vehicle in dispute on 03.12.2002, the alleged problems had already been raised by the complainant in the advocate notice dated 16.03.2001, which is within 9 months from the date of purchase of the bike. It is to be noted that the reading stated in Ext. C1 as on 03.12.2002 is 7377.2. As per Ext. D3 on 19.03.2001 the meter reading was 4375. Upto the date of inspection by the commissioner he had further used the vehicle for 3002 kms. Thereby the allegation of the opposite party that complainant has used the vehicle roughly stands disproved. Further it is to be noted that opposite parties have never contended that complainant had serviced the vehicle in dispute outside the authorized service centre, which ultimately led to the alleged troubles in the vehicle. Nor did complainant raise the contention that he had serviced the vehicle outside of the authorized service centre, nor did the 2nd opposite party, the service centre, filed affidavit in support of their contention in the version that the repairs carried out were on account of rough handling and improper maintenance of the vehicle. If all the complaints were attended by the 2nd opposite party what prevented them to file an affidavit in support of their version. Further, the affidavit filed by the territory service manager was for and on behalf of the 1st opposite party only. Thereby the evidence adduced by the complainant by way of affidavit against the 2nd opposite party remains uncontroverted. It is to be noted that complainant has stated in para 8 of the complaint and para 5 to 7 of the affidavit that “although the motor bike underwent repair and spare parts changed by the 2nd opposite party several times the troubles still continued. The engine was making unnatural sound and the oil leak could not be rectified by the 2nd opposite party. The CDI ignition system is a complete failure and it is a herculean task to start the bike. Finally getting fed up with the complaints, 2nd opposite party's mechanics as well as the workshop supervisor had informed the complainant that the new version of Bullet Machismo A 350 has serious manufacturing defects which are incurable. Though the expert commissioner has been cross examined by the 1st opposite party, nothing has been elicited from him to shake the stand of the commission that the vehicle in dispute has manufacturing defect. According to complainant since there were no engine parts broken or worn out, there is no meaning in opening the engine and making investigations. On the other hand, defects if any, could be correctly assessed only upon test driving the vehicle. Similarly excess smoke can be assessed by an expert by the sense of sight without smoke meter. As regards over heating and oil leak from the engine, it can be assessed by touching the engine. Further, expert having long experience in this field, could very well distinguish between an over heated engine and a normal heated engine. The allegation of the opposite parties that the complainant was riding the motor cycle carelessly and complaints raised by the complainant were due to rough handling, but there is no evidence in support of that aspect. According to complainant even if it is assumed that the complainant had been handling his motor cycle roughly, could it develop such major complaints like gear slipping, over heating of the engine and oil leak from the engine. In this context, the opinion of the expert that the vehicle failed to accelerate even after 5 minutes idle running has relevance. Further it is to be noted that DW1 has joined the 1st opposite party's office recently, while the complainant purchased his motor bike in the year 2000. DW1 was not present at the service station (2nd opposite party service centre) or in the 1st opposite party's office, during 2000-2001, consequently there is no way DW1 could see, hear or perceive any of the matters which he has deposed before us. In view of the foregoing discussion and evidence available on record, we are of the considered opinion that the vehicle in dispute had manufacturing defects. Admittedly, the opposite party stopped the production of the said model. Replacement of the same bike with a new one thus becomes impossible. Further rectification of the defects after a long period would never serve the purpose of the purchase of the bike by the complainant. Since complainant had run the vehicle around 7377.2 km as on the date of inspection, which can be treated as use of 10 percentage of the value of the vehicle. As such we think complainant is entitled to get back 90% of the value of the bike in dispute, that is 90% of Rs. 62,000/-. In the result, complaint is allowed. 1st opposite party shall pay the complainant a sum of Rs. 55,800/- towards 90% of the value of the vehicle in dispute along with Rs. 5,000/- towards compensation and Rs. 3,000/- towards cost within two months from the date of receipt of this order. On receipt of the above amount from opposite parties, complainant shall return the vehicle in dispute to 1st opposite party. If the said amount not paid within two months, Rs. 55,800/- will carry interest at the rate of 12%. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15th day of November 2010.
G. SIVAPRASAD : PRESIDENT
BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER jb
O.P. No. 208/2001 APPENDIX
I COMPLAINANT'S WITNESS : PW1 - A.J. Jose II COMPLAINANT'S DOCUMENTS : P1 - Copy of advocate notice dated 16.03.2001 P2 - Acknowledgement card. P3 - Reply notice dated 22.03.2001 P4 - Reply notice to notice dated 16.03.2001 P5 - Copy of certificate of Registration P6 - Copy of Owner's Manual P7 - Receipt issued by 2nd opposite party. III OPPOSITE PARTY'S WITNESS : DW1 - Biju. E.M IV OPPOSITE PARTY'S DOCUMENTS : D1 - Copy of vehicle installation form dated 01.07.2000. D2 - Carbon copy of the Job Card dated 30.10.2000 D3 - Carbon copy of the Job Card dated 19.03.2001 D4 - Copies of various job cards. V COURT EXHIBIT CW1 - Thomas A. Vadakkan C1 - Commission Report.
PRESIDENT jb
| | [ Smt. Beena Kumari. A] Member[ Sri G. Sivaprasad] PRESIDENT[ Smt. S.K.Sreela] Member | |
