SMT. RAVI SUSHA  : PRESIDENT

      This complaint has been filed  U/S 35 of the  Consumer Protection Act 2019 for getting an order directing opposite parties  to pay cost of bike Rs.1,90,000/-, loss of  reputation and disappointment of Rs.10,000/-, cost of mental agony, physical loss and suffering  Rs.5,00,000/- and Rs.1,00,000/- as  prolonged continuous  period of complaints and cost of  the complaint.

         In brief, the facts of the case are that the complainant purchased Royal Enfield Himalayan bearing Reg.No.KL-58-T-4844 from 2^nd OP on 16/9/2016.  But everything  shattered during the first service period itself when continuous complaints began with respect to engine, stability etc, ultimately resulting in treat to the safety and life.  The complainant communicated with the concerned authorities informing his complaints.  The settlement was made in 2018, by the  time was made in 2018, by the time BS3 was upgraded to BS4  as per the statutory regulations.  They informed the complainant that they have upgraded the engine along with other subsequent parts within the carburetor system even though BS4 engine comes with fuel injection. The new bike with the same engine and chassis number  of the old BS3 engine showed the very same complaint.  The complainant had complained to the service centers  more than enough with  respect to oil leak, fork complaint, cluster off, abnormal sounds etc.  The complainant have not even  completed 15,000 kms but had to  consistently approach the service center with  engine cylinder leak from different parts ultimately resulting  in the  changing of oil head.  The complainant had a major service in 23/10/2019 that consists of routine aforesaid complaints along with  wiring complaints and the bike was kept within the service under for  one week and was again  in vain.  The complainant again  communicated with the concerned authority through email dtd.19/2/2020   which again  a system generated reply was the response.  On 3/3/2020 the bike sudden breakdown out of nowhere and the same was taken  for service in Thalassery service center. When enquired  to the experts, the petitioner came to know that it was an extension of recurring unresolved complaints.  Hence this complaint.

        After receiving notices,1^st  OP entered appearance and filed written version.  Other OPs 2 to 5 remained absent.  OPs 2 to 5 did not contest the matter.  So OPs 2 to 5 were declared as exparte.  1^st OP pleaded that  the parts of the bike  which were changed were the wear and tear parts, which are replaced in usual periodic services and the complainant has no case that he was over charged for that.  As a part of the warranty, the engine replacement was done at free of cost. Therefore the complainant  cannot make an averment  that the vehicle was defective in different parts.  The averment that BS4 was offered and BS3 was given is absolutely false.  It is submitted that the fuel tank was replaced for minor paint blister issue and not for rust as stated by the complainant.  And the fuel tank worth Rs.5040/- was replaced free of cost under warranty.  On 23/10/2019 the complainant ‘s vehicle had done normal general check up along with  fork complaint.  The above said complaint  was  cured  on the same day itself.   It is submitted that  the company has not  stopped the production of the vehicle in question, but as per requirements and norms of the  Motor Vehicle Act, wherein government has directed all the two wheeler automobile company to upgrade the platform and the vehicle present  BS3 version  to BS4 version.  This move does not affect the supply of the parts.  There are no inherent manufacturing defects in the vehicle and that the problems being faced by the complainant are due to the  lack of maintenance and negligence of the  complainant.  Hence prayed for the dismissal of the complaint.

      At the evidence stage complainant has filed his proof affidavit and documents.  Examined as PW1.  Marked Exts.A1 to A11. PW1 was subjected  to cross examine by 1^st OP.  On the side of OPs Area service manager of 1^st OP filed his  chief affidavit and  was examined as DW1.  After that the learned counsels of both sides made  argument.

     As per the complainant, the only remedy is to get the cost of the bike as he took the vehicle to 1^st OP several times for repairs, but everything has gone fruitless, as the defect in the motorcycle could not be removed.  It is also stated by the  complainant that he has not even completed 15000/km and as the defect in the vehicle with respect to oil leak, fork complaint, cluster off, abnormal sounds etc could not be removed and, as such, the vehicle is standing idle.  Complainant also alleged that the settlement was made in 2018, by the time BS3 was upgraded to BS4  as per the statutory regulations.  They informed the complainant that they have upgraded the engine along with other subsequent parts within the carburetor system even though BS4 engine comes with fuel injection.

   On  the other hand, learned counsel for the 1^st OP has submitted that the averment of the complainant that BS4 was offered and BS3 was given is not correct.  According to 1^st OP, BS4 engine cannot be fitted in BS3 engine vehicle.  It has been submitted that whenever the  vehicle was brought to the service  centre, the defect  was removed and proper and necessary repairs were carried out free of cost.  It is submitted that the parts of the bike  which were changed were the wear and tear parts, which are replaced in usual periodic services and the complainant has no case that he was over charged for that.  As a part of the warranty, the engine replacement was done at free of cost. Therefore the complainant  cannot make an averment  that the vehicle was defective in different parts.  It has also been submitted that there is no justification for demanding the cost of the  motor cycle purchased by the complainant as the defective parts were duly replaced free of cost.

       It is worth to mention here that during the pendency of  this complaint, the complainant never intended to take steps to appoint any automobile engineer, which could suggest that the motor cycle in question is not in proper working condition, the type of  engine fitted in the vehicle as per the settlement arrived between parties in 2018, 1^st OP has specifically stated that there is no manufacturing defect in the motor cycle.  It was the duty of the complainant to establish his case that the motor cycle is suffering with any sort of manufacturing defect, which could not be removed inspite of the efforts made by the  mechanic of 1^st OP.  Ext.A9 series alone is not sufficient as the job cards submitted does not show the nature of complaint existing in the vehicle and  also the  work done in the vehicle.

      The Hon’ble Supreme Court in the case of Maruti Udyod Ltd vs Susheel Kumar Gabgotra and Anr. reported in 1(2006) CPJ 3(SC), has held that if any defect is found  in the vehicle within the term stipulated in warranty  obligation, then the obligation of the  company is to repair or replace  at its  sole discretion  any part shown to be defective with a new part of the equivalent at no cost to the owner for parts or labour. 

      Here it is evident that as per settlement ,1^st OP has replaced the defective engine and other parts, free of cost.  There is no evidence about the type of engine replaced as BS3 or BS4.

       For the reason stated above, we are not inclined to give direction to the OPs to give the cost of the  motor cycle.  However, we direct 1st OP, Royal Enfield company OPs 1&3, to make the motorcycle in perfect running condition.  Though there is no evidence, complainant alleged that the motor cycle in question is standing idle, as it is not in  perfect running condition, with the result that the complainant could not ride of the vehicle for the last several years.  Hence we direct that OPs 1&3 instead of paying the value of the vehicle, shall make the motor cycle in proper running condition with  a period of  one month from the  date of  submitting the vehicle  in the service centre of  3^rd OP by  complainant and also pay a sum of Rs.25000/- to the complainant towards damages.

     In the result, complaint  is allowed in part.  Opposite parties 1&3 are directed to remove the defects in the motor cycle in question and make the motor cycle in proper condition free of cost within a period of one month from the date of submitting the disputed vehicle  by the complainant to the service centre  and also  pay a sum of Rs.25,000/- as damages to the complainant.  Failing which the compensation amount will be enhanced to Rs.50,000/-  and carry interest @12% per annum from the  date of order till realization.  After repair work, opposite parties 1&3 shall give certificate of   an Automobile Engineer about the performance of the running condition of the vehicle to the complainant.  Complainant is at liberty to execute the order as per the provision in Consumer Protection Act 2019.

Exts:

A1-purchase bill dtd.28/9/2016

A2-withdrawal order CDRC Ernakulam dtd.2/5/18

A3-RC

A4-Insurance certificate

A5-E-mail

A6- copy of norms BS3&BS4

A7-Himalayan owners manual of BS3&BS4

A8- photographs of bikes

A9- job card original and copy

A10-E-mail  communications

A11-pendrive marked with objection

PW1-Rahul.S.R- complainant

DW1- Johny Chacko-1^st OP

  Sd/                                                            Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                      MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR