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. 207/2001 Filed on 07.05.2001

Dated : 15.11.2010

Complainant:

Suresh Kumar. G, S/o Gangadharan Nadar, residing at Udaya Sadan, Kalluvilakonam, Karimom P.O, Thiruvananthapuram.

(By adv. K. Prem Kumar)

Opposite parties :

1. 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)

 

1. 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 Royal Enfield Machismo A 350 motor bike on 07.07.2000 from the 2^nd opposite party which was manufactured by the 1^st opposite party, that soon after the purchase of the vehicle it has started to develop various complaints like oil leak from the engine, excess emission of smoke etc, that the complaints were rectified by the 2^nd opposite party, that in compliance with the instruction of the manufacturer complainant brought the bike to 2^nd opposite party for free service, that the fourth free service was done on 21.03.2001 when the motor cycle ran 8626 km, that within the period of 07.07.2000 and 21.03.2001 the motor bike was taken to 2^nd opposite party several times to rectify the various defects, that even after the 4^th free service the vehicle had suffered complaints such as knocking sound from the engine, oil leak from both sides of the engine, knocking of the valves, starting trouble, low mileage, dynamo complaint, clutch complaint, trouble with chain and sprocket, excess emission of smoke etc. that 2^nd opposite party refused to repair and rectify the defects of the bike and informed the complainant that the engine is substandard and that all the motor bike of this category has developed engine trouble due to manufacturing defects. It is submitted by the complainant that he was put to mental agony and hardship due to unfair trade practice and deficiency in service of the opposite parties, that 1^st opposite party completely stopped the manufacture of Machismo A 350 motor bike due to serious problems and complaints. 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/-, the purchase price paid for the motor bike by the complainant and pay a compensation of Rs. 5,000/- 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 in filing the complaint, that complaint is barred by limitation, that complainant purchased the Royal Enfield Machismo A 350 motor bike from the 2^nd opposite party and 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 1^st opposite party and 2^nd 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. The vehicle was entrusted to opposite party by the complainant for the purpose of carrying out the services. The repairs that were carried out were on account of rough handling and improper maintenance of the vehicle on the part of the complainant, that all the complaints were attended to and rectified whenever required. The allegation that the motor bike underwent repairs and spare parts changed several times and the troubles still continued are incorrect. 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. The allegation that the vehicle is still having complaints are incorrect and are denied. The complaints that have been now raised by the complainant with ulterior motive and malicious intention to make illegal gain. The vehicle is defect free and does not have any complaints. Complainant is not eligible for replacement of the bike nor the price of the vehicle or compensation as there is no manufacturing defect or unfair trade practice or deficiency in service of any nature whatsoever. Hence opposite parties prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether the motor bike purchased from the opposite parties was having manufacturing defects?

2. Whether the defects found are repairable?

3. Whether the complainant is entitled to get a new motor bike or in the alternative price of the defective bike?

4. 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 P5. Commission report has been marked as Ext. C1 and Commissioner was examined as CW1. In rebuttal, 1^st 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 1^st opposite party from the 2^nd opposite party on 07.07.2000. It has been the case of the complainant that the aforesaid bike was supposed to be a new advanced version of the older bike manufactured by the 1^st opposite party, that soon after the purchase of the said vehicle it has started to develop various complaints like oil leak from the engine, excess emission of smoke etc. which were rectified by the 1^st opposite party, that even after the 4^th 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, gear mechanism not working properly and excess emission of smoke. It has also been the case of the complainant that although the vehicle underwent repairs and spare parts changed by 2^nd opposite party several times, the trouble continued, that the engine was making unnatural sound and engine oil leak could not be rectified and CDI ignition was a complete failure. 2^nd 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 dated 16.03.2001 addressed to opposite parties. Ext. P2 series are acknowledgement cards. Ext. P3 is the reply notice dated 03.04.2001 to Ext. P1 notice. Ext. P4 is the copy of the registration certificate. Ext. P5 is the copy of the owner's manual. On perusal of free service record, it is seen that the 1^st free service was on 24.07.2000, 2^nd free service on 25.10.2000, 3^rd free service on 22.12.2000 and 4^th free service on 21.03.2001. Ext. C1 is the Commission Report. As per Ext. C1, Expert Commission inspected the vehicle in dispute on 18.12.2002, that at the time of inspection speedo reading was 24991 km. He has reported in Ext. C1 that (1) in idling speed, the sound from engine found not smooth, obtained unusual sound. Improper functioning are due to different reasons and are improper valve seating, more tappet clearance, valve spring defect, push rod defect etc. which results in inadequate pulling power of engine (2) Oil leakage is noted through oil cap side of the engine and the complainant reported that the leakage is found even after repeated services at the dealer point. And so is a manufacturing defect. (3) Regarding (a) starting trouble-at the time of inspection no such complaint is observed.(b) clutch complaint-since knocking is observed at a speed range above 35 km/hr in top gear and 3^rd gear, the vehicle have a jerking effect, and to reduce it, automatically clutch will apply which results the quick worn out of clutch plates. Also, it is noted the vehicle-Enfield Machismo A 350 CC Motor Bike-is fitted with high speed engine with the gear box same as in Enfield Bullet, that is high speed (power) engine with the gear box using for comparatively in low speed (power) engine-without any high speed gear-results in loss of power at high speeds and obtains unusual sounds from engine side-which also seems to be a manufacturing defect. (4) In idling-slow speed condition-it is felt the smoke level is slightly higher due to excess oil, fuel burning-which results to engine over heating and higher consumption of oil and fuel. (5) (a) Working of gear mechanism found O.K. (b) Chain & Sprocket found fully in worn out condition. Customer reported that the same was replaced once. Chain and sprocket wear is more due to the jerking effect of the vehicle. (6) Dynamo is found OK during inspection. (7)(a) Check up the mileage and is found 30 km/hr. (Starts from 24995.9 km to 24998.9 km in 100 ml) which is very low (As per company's representative, the offered mileage is 45 km/ltr). (b) Tyre wear is more-due to jerking effect of the vehicle. It is reported by the commission that the previous service history of the vehicle not verified since job cards were not available with the dealer point. Commissioner has concluded that engine noise in idling speed and knocking at a speed above 35-40 km and oil leakage through oil cap are due to manufacturing defect. Very low mileage and higher oil and fuel consumption are also observed. 1^st opposite party has produced 5 documents. Ext. D1 is the copy of the vehicle installation form. As per Ext. D1 date of installation is on 07.07.2000. Ext. D2 is the job card No. 1274 dated 21.03.2001, where in the column of details of complaints/job, 4^th service is mentioned and customer signature is seen therein Ext. D2. Ext. D3 is the job card No. 1059 dated 22.12.2000, where in the column of the details of complaints/job, clutch sound check up, clutch side oil changed. No customer signature is seen in Ext. D3. Ext. D4 is the job card No. 1228 dated 01.03.2001. No customer signature is seen therein. In the column details of complaints/job, clutch cable change, track noise, gear check up etc. mentioned. Ext. D5 is the job card No. 905, dated 25.10.2000, no customer signature is seen therein, where in the column of details of complaints,, 1^st service, chain adj etc. mentioned. On perusal of Exts. D1 to D5, customer signature is seen only in Ext. D2, others bear no customer signature, whereby it casts doubts whether all complaints furnished by the customer have been recorded in job cards. In Commission Report also it is reported that job cards are not available with the dealer point. Opposite parties have filed objection to commission report and commissioner has been examined by opposite parties. In his examination in chief by 1^st opposite party, when asked “24991 km വണ്ടി ഓടിയിട്ടുണ്ടെങ്കില്‍ തെറ്റില്ലാതെ വണ്ടി ഓടിയിട്ടുണ്ട് എന്നല്ലേ (Q)Commissioner (CW1) replied: Bullet നെ സംബന്ധിച്ച് ഇത് ഒന്നുമല്ല. In his examination in chief, when asked Ext. P5-ല്‍ page 71-ല്‍ 4^th service done എന്ന paper കണ്ടിരുന്നോ (Q) CW1 replied : ഇത് കണ്ടിരുന്നു, 4^th service വെട്ടിയതായി കണ്ടു, എന്താണ് എന്ന് ചോദിച്ചപ്പോള്‍ denied to correct the complaint എന്ന് പറഞ്ഞ് വെട്ടിയതാണ് എന്ന് പറഞ്ഞു. (A) ഇത് വാദി പറഞ്ഞുള്ള അറിവാണോ(Q) അതെ. In his examination, CW1 has deposed that: Engine sound measure ചെയ്യുന്ന instrument-ന്‍റെ പേര് അറിയില്ല, heat measure ചെയ്യുന്ന instrument ഉണ്ടോ എന്നറിയില്ല. Engine തുറന്ന് പരിശോധിച്ചോ (Q) ഇല്ല വണ്ടി ഓടിച്ച് പരിശോധിച്ചു(A). When asked : valve spring defect എന്ന് പറയുന്നത് എന്തെങ്കിലും test നടത്തിയാണോ(Q) Test നടത്തിയല്ല, ഓടിച്ചു നോക്കിയാണ്(A) Improper valve seating, tappet clearance എന്നിവ engine തുറന്ന് instrument വച്ച് പരിശോധിച്ചാല്‍ മാത്രമല്ലേ measure ചെയ്യാന്‍ പറ്റൂ (Q) കാണണമെങ്കില്‍ തുറക്കണം, fault അറിയാന്‍ ഓടിച്ചു നോക്കണം (A). Commissioner has deposed that idling speed-ലെ engine sound improper maintenance കൊണ്ടുള്ളതാണെങ്കില്‍ rectifiable ആണ്, അല്ലെങ്കില്‍ ഇല്ല. Oil leakage പറഞ്ഞിരിക്കുന്നത് വാദി പറഞ്ഞതിന്‍റെ അടിസ്ഥാനത്തിലല്ലേ (Q) അല്ല, നേരിട്ട് കണ്ടതിന്‍റെ അടിസ്ഥാനത്തിലാണ്. (A). Further CW1 has deposed that “mileage test ചെയ്തത് workshop-ലുള്ള ആളും ഞാനും കൂടിയാണ്. വണ്ടി ഓടിച്ചിരുന്നത് workshop-ലുള്ള ആളാണ്. Further, when asked Royal Enfield-ന്‍റെ bullet market-ല്‍ available ആണ്. (Q) ഇതില്‍ പറയുന്ന വണ്ടി available അല്ല. CW1 denied the suggestion put by 1^st opposite party that manufacturing defect reported in Ext. C1 is bereft of conducting any scientific test, knowing the primary things about the vehicle in dispute and with intention to support this complainant. Further, CW1 has deposed that the life expectancy of the tyre of two wheelers would vary depending on various conditions such as the materials used in it, its quality, etc, that he has not conducted tyre test. In his cross examination by the complainant he has deposed that he had 24 years experience in two wheeler and three wheeler fields; further he has 30 years driving experience in two wheeler vehicles. When asked: എന്തൊക്കെ manufacturing defect ആണ് കണ്ടത്(Q) High Speed engine ആണ് ഈ കേസ്സിനാസ്പദമായ vehicle-ല്‍ ഉപയോഗിച്ചിരിക്കുന്നത്. എന്നാല്‍ അതില്‍ ഉപയോഗിച്ചിരിക്കുന്ന gear box bullet-ന്‍റേതാണ്(A). High speed engine-ഉം bullet-ന്‍റെ gear box-ഉം വന്നതു കൊണ്ട് വാഹനത്തിന് എന്തെങ്കിലും പോരായ്മ ഉണ്ടോ (Q). High Speed engine-ന് bullet-ന്‍റെ gear box വന്നാല്‍ i.e; low speed engine gear box വന്നാല്‍ അത് match ആകില്ല. Speed gear ഇല്ലാതെ match ആകില്ല. (A). അങ്ങനെ വരുന്നത് കൊണ്ട് gear slip ആകുകയും അനുബന്ധ പ്രശ്നങ്ങള്‍ ഉണ്ടാകുകയും ചെയ്യും …...... excess smoke, over heating, gear box complaint, ഇതൊക്കെ വരാന്‍ സാധ്യത ഉണ്ട്. excess smoke, over heating ഉണ്ടാകാനുള്ള കാരണമെന്ത്? Excess oil വരുന്പോള്‍ fuel burning വരുന്നതാണ്. Normal standard Royal Enfield vehicle-ല്‍ smoke ഉണ്ടാകാറുണ്ടോ(Q) എന്‍റെ ശ്രദ്ധയില്‍പ്പെട്ടിട്ടില്ല (A). Overheating ഉണ്ടായത് manufacturing defect കൊണ്ടല്ലേ (Q) ആകാം (A). Further വണ്ടി start ചെയ്തപ്പോഴും ഓടിച്ചപ്പോഴും excess smoke ശ്രദ്ധയില്‍പ്പെട്ടോ (Q) അതെ (A). It is pertinent to point out that except one job card, other 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 it is to be noted that the complaint in hand was filed before this Forum during the warranty period, that is immediately after the 4^th free service. We cannot overlook the allegation raised by the complainant in the complaint. Though the expert commissioner had inspected the vehicle in dispute on 18.12.2002, the alleged problems had already been raised by the complainant in the advocate notice dated 16.03.2001, which was within 9 months from the date of purchase of the bike. It is to be noted that the speedo reading stated in Ext. P2 was 8626, while after filing this complaint, complainant had used the bike continuously with the problems alleged which is evident from Ext. C1 commission report, wherein the speedo reading has been recorded as 24991 km as on 18.12.2002. 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 resulted in the alleged troubles in the vehicle. Nor did the complainant raise the contention that he had serviced the vehicle outside of the authorized service centre, nor did the 2^nd opposite party, the service centre, file 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 on the part of the complainant and no patent complaint regarding the vehicle was raised by him. If all the complaints were attended by the 2^nd opposite party what prevented them to file an affidavit in support of their version. Further, the affidavit filed by the territory service engineer was for and on behalf of the 1^st opposite party only. Thereby the evidence adduced by the complainant by way of affidavit against the 2^nd opposite party remains uncontroverted. It is to be noted that complainant has stated in para 8 of the complaint and para 7 of the affidavit that “although the motor bike underwent repair and spare parts change by the 2^nd opposite party several times the troubles still continued. The engine was making unnatural sound and the oil leak could not be rectified by the 2^nd opposite party. The ignition system is a failure and it is very difficult to start the bike. Finally getting fed up with the complaints, 2^nd 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 at length by the 1^st opposite party, nothing elicited from him to shake the stand of the commission that the vehicle in dispute has manufacturing defect. Since there was 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. As expert has great long experience in this field, he could very well distinguish between an over heated engine and a normal heated engine. There is no evidence to establish 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. 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 gear box and the engine were not in harmony for smooth running of the vehicle. Further it is to be noted that DW1 has joined the 1^st opposite party M/s Royal Enfield Motors only about 2 years back, while the complainant purchased his motor bike in the year 2000. DW1 was not present at the service station (2^nd opposite party service centre) or in the 1^st 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 is impossible. Further rectification of the defects after a long period would never save the purpose of the purchase by the complainant. Since complainant had run the vehicle around 24991 km as on the date of inspection, which can be treated as use of 20 percentage of the value of the vehicle. As such we think complainant is entitled to get back 80% of the value of the bike in dispute, that is 80% of Rs. 62,000/-.

In the result, complaint is allowed. 1^st opposite party shall pay the complainant a sum of Rs. 49,600/- towards 80% 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 aforesaid amount from the 1^st opposite party, complainant shall return the vehicle in dispute to 1^st opposite party. If the said amount not paid within two months, Rs. 49,600/- will carry interest at the rate of 12% per annum.

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 15^th day of November 2010.

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

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O.P. No. 207/2001

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Suresh Kumar. G

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of advocate notice dated 16.03.2001

P2 - Acknowledgement cards.

P3 - Reply notice dated 03.04.2001

P4 - Copy of registration certificate

P5 - Copy of Owner's Manual

III OPPOSITE PARTY'S WITNESS :

DW1 - Biju. E.M

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of vehicle installation form.

D2 - Job Card No. 1274 dated 21.03.2001

D3 - Job Card No. 1059 dated 22.12.2000

D4 - Job Card No. 1228 dated 01.03.2001

D5 - Job Card No. 905 dated 25.10.2000

V COURT EXHIBIT

CW1 - K. Vijayakumar

C1 - Commission Report.

PRESIDENT

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