Complaint presented on : 07.02.2012
Order pronounced on : 26.03.2015
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (NORTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L., : PRESIDENT
TMT.T.KALAIYARASI, B.A.B.L., : MEMBER II
THURSDAY THE 26th DAY OF MARCH 2015
C.C.NO.22/2012
G.Suresh,
New Address:
No – 18/2, West Mada Street (Perumal Koil Street)
Koyambedu,
Chennai – 600 107.
Old Address:
No.11/3,Koyambedu West Mada Street,
Virugambakkam,
Chennai – 600 092.
.. Complainant
..Vs..
| | 1.M/s Southern Motors, No.182, AL block First Street, 11th main road, Anna nagar, Chennai – 600 040. 2. M/S Sri Velavan Motors, No-45 Arcot Road, Virukambakkam, Chennai – 600 092. 3. The Managing Director, M/S Rayal Enfield, (A Unit of Eicher Motors) No 624, Thiruvottiyur High Road, Thiruvottiyur, Chennai – 600 109. | |
| | | … Opposite parties |
Date of complaint : 14.02.2013
Counsel for Complainant :P.K. Paner Selvam,
Counsel for 1st Opposite Party :Sri S. Natana Rajan
Counsel for 2nd & 3rd Opposite party :K.S.Jeyaganeshan
O R D E R
BY PRESIDENT THIRU. K.JAYABALAN B.SC., B.L.,
Complaint filed under section 12 of the Consumer Protection Act, 1986 for a direction to the opposite parties to refund a sum of Rs.1,03,599/- as cost of the Motor Cycle together with interest and to pay a compensation of Rs.6,00,000/- towards their act of unfair trade practice and deficiency of service and also causing mental agony to the complainant along with costs of the complaint.
1. COMPLAINT IN BRIEF :
The complainant purchased a new Royal Enfield Thunderbird Motor Cycle from the 1st opposite party on 29.03.2011. Then the complainant took the motor cycle to the 2nd opposite party for service and the first and second service went on smoothly. The problem started from the third service on 20.08.2011 and the complainant informed the tightness of gear handling to the 2nd opposite party engineer Mr.Rathesh, Service Engineer. After 4 days the complainant drove the motor cycle , he noticed that clutch is not working properly. They checked the gear box and clutch set and replied that they want to dismantle the engine to rectify the fault and due to work load they asked the complainant to bring the vehicle after 2 weeks. Then, while taking the vehicle the complainant found on the way that oil got leaked from the engine and again he went to the service centre and they said that there is a loose fitting in the engine casket and tightened it. On 05.09.2011 after two weeks the complainant handed over the motor cycle to Mr.Rathesh and he told him that he will get back the motor cycle on 16.09.2011. When the complainant went to collect the vehicle on 16.09.2011 Mr.Rathesh informed him that, it will take another 4 days due to non availability of spare parts. Then complainant met the M.D of the 2nd opposite party and in turn he informed that the vehicle would be delivered on 26.09.2011. The vehicle was delivered on 26.09.2011 and however within 3 days the same problem persists, then on 30.09.2011, when he went to the 2nd opposite party with vehicle Mr.Riyas, Engineer checked the vehicle and changed some spare parts in the clutch sets. Even then the problem persists then they decided to remove the engine and for which the complainant is not interested. The vehicle is a new one and it just ran 7200 kms. The complainant asked for new engine or extended warranty the M.D assured is email dated 10.10.2011 accepting for an extended warranty. After a long struggle they delivered the motor cycle on 03.12.2011. The 2nd opposite party provided a poor quality service to the motor cycle. The customer care of Royal Enfield replied that the Regional Manager is out of country and he will return on 9.11.2011 and he will solve the issue. The complainant was totally frustrated and disturbed personally. Therefore the complainant filed this complaint to refund the cost of the motor cycle a sum of Rs.1,03,599/- and also to pay a compensation for the mental agony, hardship and unfair trade practice with cost of the complaint.
2. 1ST OPPOSITE PARTY WRITTEN VERSION IN BRIEF:
This 1st opposite party is one of the dealer of the Royal Enfield motor cycle and from whom the complainant purchased the vehicle. After purchase there has been no connection between the complainant and this opposite party. The complainant took the said vehicle to the 2nd opposite party for services and the first and second service was completed smoothly and problem started only from the third service on 20.08.2011. This fact establishes that the 1st opposite party delivered the vehicle in good condition on 29.03.2011. The complainant sent an email dated 01.10.2011 to the customer service of Royal Enfield, the manufacturer of the said vehicle for poor service of Royal Enfield. The complainant alleges deficiency in service only against the 2nd opposite party and not levelled any allegation against this opposite party and therefore this opposite party prays to dismiss the complaint.
3. 2ND & 3RD OPPOSITE PARTY WRITTEN VERSION IN BRIEF:
The 2nd and 3rd opposite parties admits that the complainant left the vehicle for first and second service with the 2nd opposite party. The vehicle was brought on 05.09.2011 for service with regard to a gear issue and this opposite party committed to the complainant that the vehicle can be delivered on 16.09.2011 and however it was delivered on 2 6.09.2011 due to non availability of spare parts. The complainant came on 30.09.2011 and complained some tightness in the gear and on diagnosis it was found that the rear wheel rotated on gear while the clutch was applied. On trial basis this opposite party proposed a solution without opening the crankcase. The solution was to replace the clutch assembly. The same was done under warranty condition and no charge was collected from the complainant. The crankcase assembly was replaced for the benefit of the customer and also to keep the goodwill with the customer the same was done. There was some delay because there were a lot of formalities to be completed with the manufacturer for doing so and the decision cannot be taken unilaterally by this opposite party. The vehicle was handed over to the complainant in good working condition after rectifying all the complaints by the 2nd opposite party. The complainant had not closed the job sheet and hence the certificate of warranty was not issued because the close job sheet need to be sent to the manufacturer for issuing the certificate to the complainant. It is true that the complainant met the M.D. of the 2nd opposite party. These opposite parties have not committed any deficiency in service and there is no need to replace the vehicle as the defect of the vehicle has been properly rectified and handed over to the complainant on 03.12.2011. Therefore it is prayed to dismiss the complaint.
3. The Complainant had filed his proof affidavit and documents Ex.A1 to Ex.A5 were marked on the side of the complainant. The opposite party filed his proof affidavit and Ex.B1 marked on the side of the opposite party.
4. THE POINTS FOR CONSIDERATION:
1) Whether the opposite parties committed deficiency in service?
2) To what relief the complainant is entitled?
5. POINT NO : 1
The admitted facts are that the complainant purchased a new Royal Enfield thunderbird motor cycle from the dealer/ 1st opposite party for a sum of Rs. 1,03,599/- under Ex.A1 and the said vehicle was manufactured by the 3rd opposite party and after that the complainant took the motor cycle for service to the 2nd opposite party and the first and second services was completed smoothly and during third service on 20.08.2011 the complainant alleged problems arose in the vehicle.
6.Ex A1 invoice dated 07.04.2011 is the purchase bill for the motor cycle of the complainant, ExA2 is the registration certificate and Ex A3 is the insurance policy for the motor cycle and the complainant purchased the said motor cycle from the 1st Opposite party/dealer, the 3rd Opposite party is the manufacturer of the said motor cycle and 2nd opposite party is the service provider. After purchase of the vehicle, the complainant left the vehicle with the 2nd opposite party for two services and during such services there is no problem in the vehicle.
7.After that the complainant noticed in the motor cycle that the clutch is not working properly and felt tightness of gear and informed to the 2nd opposite party about the same, the 2nd opposite party after checking the gear parts and clutch set replied that the engine has to be dismantled to find out and rectify the fault and accordingly the complainant handed over the vehicle on 05.09.2011 to the 2nd opposite party and Mr.Rathesh received the vehicle on their behalf and told the complainant that he can get back the vehicle on 16.09.2011 and however they have not rectified the vehicle on the said date and actually they have delivered the vehicle on 26.09.2011 with working condition . However within 3 days the same problem persists then the complainant went to the 2nd opposite party and they changed the clutch assembly without opening the crankcase and even after that the same problem persists.
8. According to the complainant he is facing the problem from 6,000 km and therefore he informed through email dated 01.10.2011 to the customer service Royal Enfield that he want a new bike or at least for a new engine with warranty for the same and for which the 2nd opposite party replied through email dated 10.10.2011 to the complainant in connection with extending of warranty as follows:
- We will be providing an extended warranty from 10000kms till 16000 kms upon any further failure on vehicle engine assembly that relates to that of the current complaint. The vehicle is reported here in 7299 kms.
- This extended warranty does not cover any wear and tear components.
The complainant contented that as per the about terms extended warranty would show that failure of engine assembly already which is sought to be replaced and extended warranty has been offered for the same. The above warranty term clearly establishes that already the vehicle has a failure engine and the warranty extended only to cover the further failure of engine.
9.The 3rd opposite party contented there is no manufacturing defect in the vehicle and what are all the defects noticed by the 2nd opposite party have been rectified and vehicle was returned to the complainant and therefore prays to dismiss the complainant. According to the complainant even after changing of crankcase the vehicle having the same defect i.e gear problem continues after delivery of vehicle on 26.09.2011. Again the vehicle was handed over to the 2nd opposite party on 30.09.2011 only at the time clutch said was replaced and even after that the same problem persists and the vehicle could not be moved. Therefore repeatedly the defects in the vehicle was attended by the 2nd opposite party and there after only through customer care they offered to extend the warranty. Therefore the 3rd opposite party realizing the manufacturing defect in the vehicle only offered for extending the warranty. Further the 2nd opposite party would contend that the job card was not signed by the complainant and hence the same not closed to send it to the 3rd opposite party to send extended warranty to the complainant. This was denied by the complainant. The unsigned job card was not filed as a document by the 2nd opposite party. The job card was with the 2nd opposite party and they can very well close the same and sent it to the 3rd opposite party and failure to do the same would establish that both of them are not having the intention of sending the extended warranty to the complainant.
10. The opposite party 2 and 3 contented that there is no expert opinion is available to prove that the vehicle purchased by the complainant is having manufacturing defect. Nearly four times the vehicle was attended by the 2nd opposite party for tightness of gear. Even after changing of gear set the problem was not rectified. Hence failure to rectify the defect inspite of repeated attempts would prove that there is a manufacturing defect in the vehicle itself. Further the Judgement referred by the complainant reported in II (2013) CPJ 743 (NC) (Tata Engineering and Locomotive Co. Ltd. & Anr vs Subhash Ahuja & Anr) supports contention of the complainant that the evidence in form of opinion of technical expert is not required. An another judgment referred by the complainant reported in II (2013) CPJ 569 (NC) (Amarjeet kaur & 2 ors vs Atul Auto Limited & Ors) that the vehicle developing engine problem during warranty period could not be rectified even after change of engine twice only supports the case of the complainant in hand. Therefore from the foregoing discussion and the available evidence and pleadings establishes that the vehicle manufactured by the 3rd opposite party is having inherent manufacturing defect and the same was not disclosed by the 2nd opposite party to the complainant and therefore the 2 and 3 opposite party committed deficiency in service. As far as 1st opposite party is concerned, it is only a dealer and not committed any deficiency in service.
11.POINT NO:2
Due to deficiency in service committed by the 2 and 3 opposite party, they have caused mental agony to the complainant is acceptable and in view of the same the complainant is entitled for refund of cost of the vehicle and also compensation for the suffering besides cost of the complainant.
In the result the complaint is allowed in part. The opposite party 2 and 3 are jointly and severely directed to refund a sum of Rs.1,03,599/-(Rupees one lakh three thousand five hundred ninety nine only) and also to pay a sum of Rs.50,000/-(Rupees fifty thousand only) towards compensation besides a sum of Rs.3,000/-(Rupees three thousand only) as cost of the complaint. The opposite party 2 and 3 are directed to pay the above amounts within 6 weeks from the date of receipt of copy of the order, failing which the above said amounts shall carry interest at the rate of 9% per annum till the date of payment. The complaint in respect of the 1st opposite party is dismissed without cost.
Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us on this 26th day of March 2015.
MEMBER-II PRESIDENT
LIST OF DOCUMENTS FILLED BY THE OPPOSITE PARTY:
Ex.A1 Dated 07.04.2011 Copy of the R.C of the two wheeler
Ex.A2 Dated 09.04.2011 Copy of the Insurance of the two wheeler
Ex.A3 Dated 29.03.2011 Copy of the purchase Invoice of the two wheeler
Ex.A4 Dated 25.04.2011 Copy of the service Invoice of the two wheeler
Ex.A4 Dated 28.06.2011 Copy of the service Invoice of the two wheeler
Ex.A4 Dated 08.08.2011 Copy of the service Invoice of the two wheeler
Ex.A4 Dated 20.08.2011 Copy of the service Invoice of the two wheeler
Ex.A4 Dated 26.09.2011 Copy of the service Invoice of the two wheeler
Ex.A5 Dated 01.10.2011
To
06.12.2011 Copy of the Follow up mails of the two wheeler
MEMBER –II PRESIDENT
