DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No: 115/08.08.2008 Decided on : 22.05.2009 Sh.Jiwan Kumar S/o Sh. Om Parkash, resident of Ward No.17, Mansa. .....Complainant. VERSUS 1.M/s Ganpati Motors, Link Road, Mansa through its Proprietor/Partner. 2.Royal Enfield, 26 Madhya Marg, 1st Floor, Sector 26, Chandigarh through its Area Manager. 3.Royal Enfield, A unit of Eicher Motors Limited, Tiruvottiyur High Road, Tiruvottiyur Chennai -600 019 through its M.D. .....Opposite Parties. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh. R.K.Singla,Advocate counsel for the complainant. Sh.S.K.Singla, Advocate counsel for the opposite parties. Quorum: Sh.P.S.Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S.Dhanoa, President. This complaint has been filed by Sh.Jiwan Kumar son of Sh. Om Parkash, a resident of Mansa, against the opposite parties under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act'), for giving them direction to replace the motorcycle purchased by him or in the alternative to refund the amount of consideration and for payment of amount spent by him for securing insurance cover note and repair and payment of compensation in the sum of Rs.20,000/- and litigation charges Contd........2 : 2 : incurred by him for filing of the instant complaint, on the averments, which may, briefly be described as under: 2. That he purchased Royal Enfield motorcycle of black colour, (Model 2008), bearing Chassis and Engine No.8B753193D, vide bill No.005 dated 9.5.2008 in the sum of Rs.68,750/- from Opposite Party No.1, who is dealer of manufacturing company. At the time of delivery of the said vehicle, OP No.1 also delivered sale letter, purchase invoice, fitness certificate and Form No.22 to the complainant and gave him guarantee for proper functioning thereof for a period of one year, as such, the complainant is consumer qua the motorcycle under all the opposite parties. The motorcycle purchased by the complainant did not function properly right from the date of its purchase, because of which he suffered in his business of jewelery. The battery of his motorcycle stops functioning and it very often stops on the way, because of which valuable time of the complainant is wasted. On being approached, the OP No.1 replaced the battery of the motorcycle purchased by the complainant, but defect therein still persists. The complainant again approached the OP No.1, who changed its part meant for charging the battery , but to no way as it continue to stop functioning while the motorcycle is in use. There is manufacturing defect in the motorcycle. On 28.7.2008, complainant was going for some personal work to court complex, Mansa. On the way, battery of his motorcycle again stopped functioning and his motorcycle did not start inspite of several kicks given by the complainant to restart the same. The complainant faced embarrassment from the public at large because of remarks given by the passers by that he has kept motorcycle of such a low quality. He also could not perform his work due to defect developed in his motorcycle on that day. As he approached OP No.1, for removal of the defect in the battery of his motorcycle, he told him that there is no mechanic, as such, complainant shall himself bring his motorcycle to the premises of the Agency. On reaching there, complainant Contd........3 : 3 : told the OP No.1 either to replace the motorcycle or to refund the cost thereof, but he refused to accede to his request. As such, there is deficiency in service on the part of the opposite parties, who have not even replied notice dated 28.7.2008 served upon them. Hence this complaint. 3. On being put to notice, the opposite parties filed written version, resisting the complaint, by taking preliminary objections; that the complainant has no locus standi to file the complaint, because on 4.7.2008, free service of his motorcycle was done in the premises of the agency of OP No.1 to his entire satisfaction. It is submitted that had there been any defect in the motorcycle, then it might have been removed at that time. It is submitted that there is no defect in the motorcycle purchased by the complainant and opposite parties have never refused to effect service thereof; that complaint has been filed by concealing the material facts from the knowledge of this Forum with intention to harass the opposite parties, as such, complaint being false and vexatious, is liable to be dismissed with compensatory costs. On merits, factum of sale of motorcycle and delivery of documents to the complainant by OP No.1, have been admitted, but it is denied that any guarantee was given to him for proper functioning of the said vehicle for a specific period. It is also contended that after 4.7.2008, complainant never reported any defect in the motorcycle. He denied that motorcycle purchased by the complainant, has any manufacturing defect or that there is any deficiency in service on their part because of which he might have been subjected to mental and physical harassment. It is submitted that false version has been concocted and placed before the Forum. The factum of service of notice is also admitted. Rest of the averments made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs. 4. On being called upon by this Forum, to do so, the counsel for the complainant tendered his affidavits, Exhibits C-1 and copies of documents Ext.C-2 to C-8, before closing evidence. On the other hand, Contd........4 : 4 : learned counsel for the opposite parties has tendered in evidence, copies of documents, Ext.OP-1 to OP-4, and closed evidence, on their behalf. 5. We have heard the learned counsel for the parties and gone through the oral and documentary evidence, adduced on record, by them, carefully, with their kind assistance. 6. At the out set, learned counsel for the complainant Sh.R.K.Singla, Advocate has drawn our attention to copy of reply of notice served upon the opposite parties by the complainant wherein it is admitted that complainant has visited the premises of agency run by OP No.1 on 4.7.2008 and removed the defect in his motorcycle on even date. Learned counsel has also drawn our attention to copy of job card issued by OP No.1 at the time of free service on 4.7.2008 wherein it has been mentioned that motorcycle sold to the complainant bears starting problem. Learned counsel argued that these facts have falsified the plea of the opposite parties taken in their written version that motorcycle sold to the complainant did not bear any manufacturing defect and that he never complained about the same after date of purchase. Learned counsel urged that opposite parties cannot wriggle out of their admissions made in their own documents, as such, complainant cannot be denied reliefs prayed for in the complaint on the basis of expert witness examined by them who was expected to toe their line being their pay master. Learned counsel urged that deficiency in service on the part of the opposite parties in removing the manufacturing defect in the motorcycle stands proved, as such, he is entitled to seek compensation from them, as prayed for in the complaint. 7. On the other hand, learned counsel for the opposite parties Sh.S.K.Singla, Advocate, have examined expert, who after inspection of the motorcycle, has given his report that it does not bear any manufacturing defect and complainant has not produced any evidence to controvert his report and nothing has emerged out of its cross examination on the basis of which it may be inferred that he has given report favorable to them being Contd........5 : 5 : their employee. Learned counsel has also submitted that functioning of the battery of the motorcycle depends upon charging threreof in time and its proper maintenance and complainant has not brought on record any evidence to establish that he ever got repaired the battery of the motorcycle or any of its part from any agency or mechanic, as such, deficiency in service on the part of the opposite parties cannot be presumed on the basis of his affidavit tendered in evidence for want of corroborating evidence. Learned counsel further argued that complaint being false and vexatious is liable to be dismissed with compensatory costs. 8. We find merit in the arguments advanced by the learned counsel for the opposite parties, because as per copy of job card Ext.OP-2, issued at the time of free service on 4.7.2008, OP No.1 acknowledged that the motorcycle of the complainant has starting problem. As per own version of the complainant, battery of the motorcycle and one of its part meant for charging, was replaced. Even in reply Ext.C-8 to notice, Ext.C-5, served upon the opposite parties by the complainant, OP No.1 has informed the counsel for the complainant that defect in the motorcycle of the complainant was removed on 4.7.2008 at the time of free service. There is no other evidence to corroborate the contents of affidavit Ext.C-1 of the complainant on the basis of which it may be accepted that subsequently he approached the dealer of the motorcycle for removal of any part of the motorcycle. He has also not taken any plea that he took his motorcycle at any subsequent stage to any agency or mechanic. On the basis of the application filed by the opposite parties, direction was given to the complainant to produce the motorcycle purchased by him from them in the premises of this Forum for inspection by Sh.Deepinder Singh, Territory Service Manager, employed with manufacturer, who after checking the motorcycle mechanically and after trial ride for a distance of 3.5 kilometers, submitted his report Ext.OP-1, certifying that motorcycle did not suffer either from starting problem or any other problem and Contd........6 : 6 : performance thereof is satisfactory. The complainant has not bothered to examine any expert witness to rebut the report given by him. In his cross examination, no suggestion has been given to the expert of the opposite parties on behalf of the complainant that his motorcycle did not start at the time of checking or ever stopped during the test drive. The initial onus was on the complainant to prove that motorcycle purchased by him suffers from any manufacturing defect because of defect in its battery or any other part. Since he has failed to discharge the said onus placed on him, therefore, onus never shifted on the opposite parties to prove to the contrary. As such, he cannot succeed on the basis of any weakness in the case of the opposite parties. 9. For the aforesaid reasons, we are of the considered opinion that complainant has failed to establish that there is any defect in the motorcycle purchased by him or deficiency in service on the part of the opposite parties, which may warrant indulgence of this Forum, as sought by him, through the instant complaint. Resultantly, we dismiss the complaint leaving the parties to bear their own costs. 10. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced: 22.05.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
