DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 29th day of July, 2024
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 05/02/2021
CC/21/2021
Sreenath Sasidharan,
S/o. Sasidharan,
Shivam, 7/250, Amrutha Nagar,
Koduvayur, Palakkad – 678 501
Rep.by Father & Power of Attorney Holder
Sri. Sasidharan - Complainant
(By Adv. Ms. Anitha T.S.)
Vs
- M/s. EVM Autocraft India Pvt. Ltd.,
Angels Plaza, Bldg. No. XXIII/649-A1,
NH 47, TVS Junction, South Kalamassery,
Kochi – 682 022
- M/s. BMW India Pvt. Ltd.,
Regd. Office at 2nd Floor,
Oberoi Centre, Bldg.No.11,
DLF Cybercity, Phase II,
Gurugram, Haryana - 122 002
- Vikram Pawah,
President, BMW India Group,
Regd. Office at 2nd Floor,
Oberoi Centre, Bldg.No.11,
DLF Cybercity, Phase II,
Gurugram, Haryana - 122 002
- Vineeth Agarwal,
Director, BMW India Group,
Regd. Office at 2nd Floor,
Oberoi Centre, Bldg.No.11,
DLF Cybercity, Phase II,
Gurugram, Haryana - 122 002 - Opposite parties
(OP1 set exparte
OP 2 to 4 by Adv. M/s. Saju Abraham T &
Thomas P. Kuruvila)
O R D E R
By Sri. Vinay Menon V., President
- Multifarious grievances aired in this complaint by the complainant are regards the alleged defects suffered by a sports motorcycle manufactured by OP 2 and purchased from OP1. Gist of 14 grievances, as can be seen scheduled in paragraph 15 of memorandum of complainant summarizes the grievance. But these 14 complaints were not taken up for consideration when an expert commissioner was appointed. Therefore, we presume that the following complaints were the only one that the complainant intended to prove by adducing evidence. They are:
1) Heating of engine; 2) Tightness of clutch; 3) Headlamp focusing; and
4) Vibration of the engine.
- Even though notice was delivered on OP1,the dealer, they failed to appear in time and was set exparte. RA filed by them seeking setting aside of the order setting them ex-parte was also dismissed. Thereafter OP1 had not made any appearance.
- OPs 2 to 4, manufacturing company and its authorized officers, filed detailed version under various heads - factual, legal and hypothetical. Distilled to essence, their pleadings, in so far as facts are concerned, are that this is a premium sports bike and not meant for usage in heavy traffic area or for long arduous journeys, but for traversing highways. They attribute over heating to improper usage of the vehicle. With regard to hard clutch, they plead that clutch operation was found to be normal by OP1. Display was found to be normal. Side pulling of the vehicle occurred when the complainant tried to go hands-free. There is no vibration. They sought for dismissal of the complaint.
- Following issues were framed for consideration:
- Whether the complainant’s vehicle suffers from any manufacturing defect?
- Whether there is any deficiency in service on the part of OPs?
- Whether the complainant is entitled to any of the reliefs sought for?
- Any other reliefs?
5. (i) Documentary evidence of complainant comprised of proof affidavit and Exhibits A1 to A8.
Marking of all documents were objected as they are only clarificatory in nature. Since nothing prevents the complainant from adducing a clarificatory evidence, these objections are overruled.
We could not understand the relevancy of Ext. A2, which seems to belong to a bus. Hence the same is rejected.
(ii) O.P.2 filed proof affidavit and marked Exts.B1 to B5.
Since the document marked as Ext.B3 is only a part of a document, the same is rejected.
Exhibit B4 is a Certificate of Conformity issued by BMW itself, purportedly pursuant to a Gazette Notification issued by the MoRTH. Since this is a document whereby the manufacturer states the bikes’ credentials themselves, this document cannot be taken to be proof of the quality of the bike. We are unable to go by the assertions given by the O.P. that the vehicle does not suffer from any defects merely because they have filed a document to that effect. But to the extent of ascertaining the specification of the bike, as asserted by the O.P., Ext. B4 is reliable.
(iii) Report filed by the Expert Commissioner was marked as Ext.C1. Expert Commissioner was examined as CW1.
Preface
6. Before appreciating the evidence and Issues framed any further, the cardinal aspect that is to be kept in mind is that the entire evidence is to be considered in the light of the fact that this is a sports bike and not a commuter segment bike. Except for pleadings O.P.s had not adduced any evidence to show the status of the bike as a sports bike. But in line 7 of page 3 of his deposition, the Expert Commissioner(CW1) has deposed that this is a sports bike.
It goes without saying that the power, speed, designs and other specifications of a sports bike differ from that of commuter class bikes. Ext. B5 is the download of the model detail of the bike purchased by the complainant as available in the website of MoRTH. Power of the said bike is shown to be 999 CC. Hence any appreciation of the performance of this bike cannot be equated with that of a commuter class bike. Or be put to a function meant for commuter class bike. When the complainant spends exorbitant amounts to a tune of Rs. 23,41,000/-, he cannot be presumed to be ignorant of the nature of the product that he is purchasing. Needless to say, this is a fit case where the principle of ‘caveat emptor’ applies.
Issue No.1
7. As already stated supra the complainant has raised 14 grievances in paragraph 7 of the complaint. But the entire grievances are not being dealt with. It is also pertinent to note that none of the defects falls into ‘res-ipsa-loquitor’ category. Since OPs 2 to 4 have denied the plaint allegations in toto, the complainant was bound to prove each and every allegation raised by him. In the absence of such an attempt we are referring solely to the matters that the complainant deemed fit to be examined and reported by an expert commissioner.
8. The expert commissioner filed his report which was marked as Ext.C1. Ext.C1 comprises of two parts.
A) The expert had carried out discussion with the parties and first part of Ext.C1 is based on the discussion.
Since, in the facts and circumstances of the case, the matters that were sought to be ascertained are to be reported based on tests and requisite procedures/exercises, we are not relying on this part which is reported based on discussions.
B) Second part deals with the inspection carried out and findings arrived at.
9. Findings of the expert commissioner as can be seen in Ext.C1 are reproduced below:
“1) The temperature rates have been observed to be a design phenomenon of the vehicle which was ratified by the representative of BMW. Since the vehicle is designed for European conditions, the design parameters are suited to their conditions. The Indian climatic conditions are entirely different from European conditions.
2) Coolant level was found to be satisfactory during the inspection.
3) Heat transfer area seems to be satisfactory. But the radiator fan temperature requires major modification to be carried of at the design level.
4) The vehicle in the present condition is not fit for running in Indian traffic and climatic conditions.
5) The headlamp focusing based on a rough verification was identified to be improper as the beam focus is above the height level of headlamp.
6) The vehicle requires hydrological clutch for its proper operation. The difficulty in operating clutch leads to the shifting of the gear to neutral position.
7) The vibration of the engine was found to be satisfactory during the inspection.”
10. Since the complainant had not filed any objection to Ext.C1, we can presume that he has no objection whatsoever and that these were the only matters that merited proving before this Commission.
11. OP filed detailed objections to the commission report. Their objections in a nutshell can be shown as below:
1) The bike concerned is a premium sports motor bike meant for long distance riding on highways / express ways and the same cannot be compared with a commuter segment motorcycle. The Expert Commissioner has filed his report from the perspective of the bike being a regular commuter segment motor bike. He failed to appreciate the fact that the conditions required for running the bike herein is not the same as that of a commuter motor bike.
2) Shutting off of the bike upon exceeding a specific temperature is a programme meant to protect the rider. The cutting off itself shows that the bike is working properly.
3) Operation and free play of clutch was found to be in proper operation.
4) No abnormalities could be found with the cooling system even after thorough checking.
5) The mechanism of adjusting the beam of head light can be adjusted by the customer as per his requirements.
Reliability of Ext. C1
12. In order to discredit Ext.C1, the expert was examined as CW1. We can go through the various items stated above to conclude as to the authenticity or reliability of Ext. C1.
13. Initially, during cross examination, experience and credibility of the Commissioner was assailed by the counsel for the O.P.s 2 to 4.
Lines 8 and 9 in page 2: “I was in automobile industry for 10 years in 3-wheeler designing.”
Lines 22 in page 2: “I have not checked the service manual of the vehicle.”
Lines 4 and 5 in page 3: “I had no experience of constant touch with litre class vehicle.(sic)”
Lines 28 and 29 in page 3: “Road condition was not worth enough to find out the defects of the vehicle while testing”
The aforesaid portions of the deposition would hit at the crux of the reliability of Ext. C1. A joint reading of the aforesaid statements would lead to a natural conclusion that though an expert, his field of expertise is 3-wheeler Industry. He did not have constant touch with the class of vehicle to which the bike in question belongs. Even after having very little experience, he failed to look into the service manual. Finally, road condition was not worthy to take up the vehicle for a ride, which can only mean that there was no proper testing.
14. With regard to the findings in Ext. C1, we can assay the evidence.
Item 1) “The temperature rates have been observed to be a design phenomenon of the vehicle which was ratified by the representative of BMW. Since the vehicle is designed for European conditions, the design parameters are suited to their conditions. The Indian climatic conditions are entirely different from European conditions.”
Item 4) “The vehicle in the present condition is not fit for running in Indian traffic and climatic conditions”.
1. Though no cross was carried out on this front, the Expert has not stated the reasons or grounds for arriving at such a conclusion except for a ratification by the representatives of the O.P. In fact, the vehicle had already run for 45,000/- Kms, albeit suffering from complaints. We are unable to blindly accept the contention that a vehicle designed for European conditions will fail to ply in Indian conditions, without understanding what European and Indian conditions refer to in the specific circumstances.
2. Since these observations are made vaguely and without adhering to any scientific practice or procedure and not based on any examination, we are unable to accept this contention.
Item 3) “Heat transfer area seems to be satisfactory. But the radiator fan temperature requires major modification to be carried off at the design level.”
1. Expert Commissioner calls for major modification to be carried out at design level. But in the cross examination he deposes as follows:
Lines 17 to 23, page 3: “I deny the suggestion that the design of litre class vehicle and 3-wheeler are different. Everything work on logic. I have not noticed any warning signal alarm during my inspection. I have not mentioned anything about radiator modification in my report. Mentioned only about radiator fan as suggestion”.
2. Expert has stated that this statement was made without noticing any warning signal. Change in design was made as a suggestion.
The expert has failed to appreciate the fact that his report was meant to reflect the condition of the bike and that such report should have cogent scientific backing. His suggestions, wherein they were not required, would only mislead this Commission.
3. This observation is also rejected.
Item 5) “The headlamp focusing based on a rough verification was identified to be improper as the beam focus is above the height level of headlamp”.
1. With regard to the headlight adjustment in line 22 of page 2, CW1 deposes as follows: “There is a provision to adjust the head light in the vehicle as per service manual?(Q) I have not seen is the answer. By this, focus can be adjusted. Every vehicle has a focus adjust in it. I have not noticed this in this vehicle because it is not my work.”
2. In line 21 of page 2 of deposition, CW1 has stated as follows: “I have not checked the service manual of the vehicle”.
3. Therefore, we hold that the Expert Commission has failed to notice the complaint with regard to head lamp properly. We cannot rely on the report of the Expert
Commissioner based on his findings.
Item 6) “The vehicle requires hydrological clutch for its proper operation. The difficulty in operating clutch leads to the shifting of the gear to neutral position”.
1. The change sought for by the complainant seems to be based on a general design change. As already stated supra, what is to be looked into was whether the bike requires a change in clutch system when the bike is put into the use for which it is put into ie. racing. As already stated supra, it is doubtful whether the expert had driven the bike as no drive-way was available.
15. Thus, having failed on all counts, we hold that the Ext. C1 is not a reliable report and the same is only liable to ignored.
Issue Nos. 2, 3 and 4
16. Apropos the decision in issue no. 1, we hold that the complainant has failed to prove any manufacturing defect in the bike manufactured by O.P.s 2 to 4. There is no deficiency in service on the part of O.P.1.
17. Complainant is not entitled to any of the reliefs sought for.
18. Accordingly, we dismiss the complaint.
19. In the facts and circumstances of the case, the parties are directed to suffer their respective costs.
Pronounced in open court on this the 29th day of July, 2024.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Copy of Proforma Invoice dated 15/2/2019
Ext.A2 – Copy of RC status
Ext.A3 - Copy of communication dated 26/12/2019
Ext.A4 - Copy of communication dated 21/3/2019
Ext.A5 – Copy of communication dated 22/12/2019
Ext.A6 – Copy of communication dated 30/9/2019
Ext.A7 – Copy of a communication dated 20/7/2020 purported to be a lawyers notice
Ext.A8 - Copy of reply notice dated 18/8/2020 to Ext.A7
Exhibits marked on the side of the opposite party:
Ext.B1 – Copy of extracts of minutes of 2nd meeting of BOD of BMW India Pvt.Ltd.
Ext.B2 – Print out of email communication dated 3/9/2020
Ext.B3 – Copy of part of dealer agreement
Ext.B4 – Copy of EU whole vehicle type – approval certificate
Ext.B5 – Copy of print out of model / variants of BMW S 1000 XR
Court Exhibit:
C1 – Expert Commissioner’s report dated 01/2/2023
Third party documents: Nil
Witness examined on the side of the complainant: Nil
Witness examined on the side of the opposite party: Nil
Court Witness:
CW1 – Sreeram H
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
