BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 22^nd DAY OF AUGUST 2023

ORDER

SMT. SUMA ANILKUMAR, MEMBER

The complainant had filed this complaint U/S 35 of Consumer Protection Act 2019 before this commission on 23.02.2022 against OP for the following relief:-

A) To direct OP to replace the damage part with a new piece/part from the factory with the original paint, sticker and logo and also rectify the other damages caused by OP, which valued around Rs.2,00,000/-

B) To direct OP to pay the compensation/damages amount of Rs.1,00,000/- towards undergoing great hardship & inconvenience for the lapses and negligent act.

C) To grant such other reliefs as this Hon’ble forum deems fit to grant, in the circumstances of the case in the interest of justice.

D) Cost of this complaint.

2. Brief facts of this case are as follows:-

The complainant purchased a BMW S 1000 RR M-sport bike bearing registration No.TN-66-AR-0005 from its authorized dealer M/s KUN Motor company private limited, Coimbatore, Tamil Nadu for Rs.23,98,750/- on 30.07.2021. The OP is authorized service centre for BMW Motor bikes at Bangalore, which is running the service station in name of M/s Tusker enterprises private limited, the complainant availed the OP service centre and gave his BMW motorbike for its first service and asked to do general basic service schedule for the said motorbike had run 838 Km. One Mr. Lokesh employee of OP, a service adviser received the bike to do general basic service and specifically informed to tighten the loose frame slider which is a crash protector for the motorbike by the complainant. The OP service adviser informed the complainant that the motorbike will be delivered on the same day evening but on the same day the complainant received a call from OP service adviser that due to software up gradation motorbike will be delivered next day that is 28.10.2021. On next day the complainant visited the OP to enquire about the service done to the motorbike and the OP service adviser informed that the motorbike will be delivered on that day evening and again complaiannt received call from OP service adviser that the paint protector film which complainant had installed on motorbike had been peeled off while doing pressure wash to the motorbike and the service adviser further informed that their manager by name Mr. Shivakumar has informed that the fault was on their side and they would rectify it. The complainant asked the OP service provider to send picture of the damaged part and the same was sent to him. The complainant was surprised to see that the protection film but the original paint of the motorbike was also peeled off. On 29.10.2021 the complainant visited the OP service centre and question how the original company/factory paint can be peeled? and asked to show the motorbike. But the OP service adviser informed that the damaged panel has been sent for painting. The complainant questioned the service provider that without seeking his permission or approval how was it sent to painting. The complainant also questions that the paint was done by manufacturer from Germany and he wants the original company/factory to paint damaged part from the Germany with the sticker installed on it. OP service manager informed that all parts came unpainted from the manufacturer and asked the complainant to trust them and film gets paneled just like asked and also will install the paint protector film. The complainant believing OP’s words obliged for the same and also asked to tighten the frame slider.

Thereafter the OP delivered the bike on 02.11.2021. The complainant paid amount of RS.9,495/- towards the service and other charges. The complainant was shocked to see repaint done, as it looked dirty and very odd and was not properly painted as per the standard/quality of the original company/factory paint as promised by the OP. The OP did not install the paint protection filler and the right frame slider was also damaged. On 03.11.2021 the complainant sent an E-mail to BMW motorbike India that manufacturer, and explained in detail about what had happened and his grievance. On the same day BMW motorrad initiated i.e manufacturer replied to the said mail by apologizing for inconvenience caused to the complainant and further told that it will investigate the matter in detail with OP. Thereafter on 08.11.2021 the complainant received an E-mail from BMW motorrad India, that is manufacturer stating that OP would visit complainant’s residence to address the issues. The OP service manager visited complainant’s residence along with technicians and removed the damaged part and further informed that he would update on the said issue and also on the frame sliders to the complainant. After few days the complainant received the mail from OP stating that the frame slider was not damaged by them and they did not do any work on that side of motorbike except for oil change. The complainant had asked OP tighten the frame slider when it was left for first service which is reflected in the work order sheet. Hence damage was caused by OP service centre. After few days the complainant was called by the OP to come and see, since the paint protection film was getting installed. The complainant was again shocked as the part which was painted and the sticker installed was not properly done as per the standard/quality of the original company paint. The complainant immediately again informed to OP and asked to replace with new piece or part from the factory with original paint sticker and logo. Meanwhile OP’s technician visited complainant’s residence and fixed the aforesaid part to the motorbike thereafter complainant wrote several mails and approached OP personally and asked to replace with new piece from the factory but there was no proper response from the OP. Therefore the complainant left with no other option issued legal notice dated 13.12.2021 to OP. Hence this complaint.

3. As per the order in Appeal No.1654/2022 dated 03.09.2022, version filed by OP is taken on record.

4. The OP submits that the complainant is ‘not a consumer’ within the ambit of section 2D(1) of Consumer Protection Act 1986 and such the above complaint is not maintainable before this Hon’ble forum. The complainant ought to have approached the competent authority for relief.

The OP admits that the complainant is the owner of BMW S 1000 RR M – sport bike having registration No.TN-66-AR-0005 and he has purchased the said bike from its authorized dealer M/s KUN Motor company private limited, Coimbatore, Tamil Nadu on 30.07.2021. The OP is running the service station in the name of M/s Tusker enterprise private limited (Tusker BMW Motorrad). The OP admits to the fact that complainant on 27.10.2021 give his BMW motorbike for its first service to his service centre but denied that it is normal service schedule for any motorbike and aforesaid motorbike had run 838 Km. The OP agreed to the fact that the employee Mr. Lokesh, service advise had received the bike but denies to the fact that the complainant informed OP service adviser to do general basic service and specifically informed to tighten the loose frame slider which is crash protector for the motorbike. OP admits that the service adviser had informed that due to software up gradation motorbike will be delivered next day that is on 28.10.2021 is true as there was software up gradation in the service centre for nearly 3 to 4 hours instead of the same day evening. The OP denies to all other allegations made by the complainant and askes for the strict proof of the same. The OP admits to the fact that the complainant sent E-mail to BMW motor India that is manufacturer of the bike about OP on 03.11.2021 explaining in detail his grievance. The said E-mail was suitably replied by the manufacturer. It is true that thereafter BMW motorrad India the manufacturer replied to the said mail by apologizing for inconvenience caused to the complainant and further told that it will investigate the matter in detail with OP & said reply will be sent to the complainant is not within the knowledge of the OP. The OP denies all the other allegations made by the complainant regarding the improper painting and other services. The OP technician have also tighten the loose frame slider during the service and technician have found that the right hand frame slider was tight and did not require any adjustment as they have not removed the cap where the frame slider bolt is present and the same is evident from the CCTV footage taken at the time of service of the bike. The OP submits that the technician have fixed the left hand side panel on motorbike and there was not need to fix the panel, the personal of OP have not done any work on the right hand site of the vehicle and they have opened engine oil dipstick to pour the new engine oil and not removed the screw on right hand side of the vehicle and there was such damages on the vehicle on the right hand side as claimed by the complainant. OP agreed to the fact that the complainant has issued legal notice on 13.12.2021 seeking for replacement of damage part along with compensation of amount of Rs.1,00,000/-. The OP claims all the allegations to be false and the complainant is only harassing the OP for money. Hence case to be dismissed.

5. Both parties have filed their affidavit evidences and submitted documents. The complainant in their contention submitted 9 documents which are marked as Ex.P.1 to Ex.P.9 and the OP submitted 2 documents which are marked as Ex.R.1 and Ex.R.2. Both the parties submits written arguments. Heard arguments of both the parties.

 6.  On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant proves the deficiency of service on the part of OP?

ii) Whether complainant is entitled for the relief?

iii) What order?

7.  Our answers to the above points are as follows:-

Point No.1:- In the affirmative.

Point No.2:- Partly affirmative.

Point No.3:- As per the final order.

REASONS

8. Point No.1&2:- It is true that the complainant has purchased a BMW bike from authorized dealer M/s KUN motor company Pvt. Ltd, Coimbatore, Tamil Nadu at price of Rs.23,98,750/- on 13.07.2021 according to the document No.1 produced by the complainant. The complainant has left the vehicle for service on 2^nd November 2021, it is true that the complainant had given the vehicle for periodic service on 2^nd November 2021. The invoice of the service clearly shows that is regular periodic service and there is no damage or repair to be done mentioned in the invoice copy. The documents No.5&6 which are the photo copies of the bike clearly shows the damage on the bike where the paint is peeled off and patched up improperly. The paint job is not done properly and the difference can be easily made out. The documents 7 to 14 are the E-mail conversations between the complainant and OP. The conversations clearly shows that the complainant is upset about the damaged happened to the bike and requesting to rectify the same to the BMW standards, wherein the OP through conversations had tried to do the paint job work and tried to rectify the damage. The complainant is totally unsatisfied that the paint job has not done to the BMW standards and is looking dirty even after several requests of the complainant, the OP has not rectified or redo the same properly. The OP is being negligent and is not responding to the complainant, this shows deficiency of service and Unfair Trade Practice of the OP. Therefore the OP is liable to pay sum of Rs.2,00,000/-, compensation of Rs.25,000/- and Rs.10,000/- towards litigation cost.

9. Point No.3:- In view of the above discussion referred, we proceed to pass the following order:-

ORDER

1. The complaint filed by the complainant is allowed in part.
2. The OP is directed to pay Rs.2,00,000/- with interest of 10% per annum from the date of complaint till realization. The OP is further directed to pay entire amount within 60 days from the date of order. If OP failed to refund the amount, the amount of Rs.2,00,000/- will carry interest of 12% per annum after expiry of 60 days.
3. Directing the OP to pay compensation of Rs.25,000/- towards mental agony and harassment.
4. OP is directed to pay Rs.10,000/- towards litigation expenses.
5. Furnish copies to both the parties with not cost.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 22^nd day of AUGUST, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;