Govt. of West Bengal

District Consumer Disputes Redressal Commission, Darjeeling

24, M.C. Road, Chota KakJhora, P.O, P.S & Dist: Darjeeling(W.B).

Pin-734101.

       Complainant                             Vs               Opposite Parties

 Shri. Vivek Singhal,                            1. Royel Enfield ( Unit of Eicher Motors Ltd)

 S/O Shri. Roshan Lal Singhal,                3^rd Floor, Select City walk,

 Resident of:-                                           A-3, District Centre, Saket,

 3, Robin Villa,                                          New Delhi-110017

 J.N.Mitra Road,                                   2.Royal Enfield, Siliguri Distributors,

 Chandmari,                                              Pratab Market, 2^nd Mile

P.O, P.S. & Dist:- Darjeeling,                  Sevoke Road, P.O:- Sevoke Road,

 Pin- 734101.                                            P.S:- Bhaktinagar, Dist:- Jalpaiguri.

                                                                    Pin- 734001.

                                                                 3. Royal Enfield,

                                                                     www.royalenfield.com

                                                                     e-mail-  

 Date of Filing:-        20.07.2021

 Date of Disposal:-   23.03.2023

 Present:-  Sri. Siddhartha Ganguli.......... Hon’ble President-in- Charge.

                    Smt. Bhavna Thakuri............. Hon’ble Member( Female).

 Cont......P/2

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C.C- 08 of 2021

 Ld. Advocate for the Complainant:-     Pravesh Biswakarma, Tsheten Tamang

 Ld. Advocate for the O.P No:- 1 & 3:-  Ritika Gurung

 O.P No:- 2:-  Ex-parte

F  I  N  A  L     O  R  D  E  R

Dated:- 23.03.2023

 Siddhartha Ganguli, ( President-in- Charge):- An application has been filed by the Complainant under section 35 of the Consumer Protection Act, 2019 against the Opposite Parties alleging deficiency in service , unfair trade practice and also for misleading and false advertisement for not rendering post sales service of his Motor Cycle and therefore, he filed this petition of complaint for proper redressal of his grievances and prays for relief as per in the petition of complaint.

      The gist fact of the case of the Complainant is that, the Complainant booked and thereafter purchased one Royal Enfield Himalayan Motor Bike from the O.Ps, which was delivered to the Complainant on 15.04.2021 vide tax invoice No. INV000085DE00074.

      The Complainant further stated in his complaint that he availed the service of MIY Options that included Road Side Assistance, Extended Warranty, etc., from the Opposite Parties.

      The Complainant further stated that at the time of booking and purchase of the Motor Cycle the amount and charge of Opposite Party No. 2 has given

Cont......P/3

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C.C- 08 of 2021

      material statement and also promised that the Royal Enfield will provide Road Side Assistance in any road of the country 24X2 and 365 Days without any hidden conditions. He further, stated that the Royal Enfield Company website specifically made endorsement about the Road Side Assistance. The Complainant further asserts that one among the many benefits of the Road Side Assistance is flat tire assistance where in case of flat tire, a Royal Enfield technician will be despatched to the location to attend the Motor Cycle and that assistant can be made by just dialling a phone call.

      It is the allegation of the Complainant that on the night of 13.05.2021 at about 9:00 p.m, when the Complainant was riding the Motor Cycle from Ghoom to Darjeeling the Complainant noticed that his Motor Cycle has a flat tire in the rear wheel near Ghoom Monastery. The Complainant decided to avail the Road Side Assistance service and called the Toll Free Help Line Number being 1800 2100 007 at about 09:22 p.m and the Road Side Assistant received the call and after a long discussion with the agent of Opposite Party No. 3, it was informed that the service could be provided to the Complainant and accordingly the Complainant was asked to provide his current location and the Complainant in response of the same informed his present location and the agent of the Opposite Party No. 3 assured that the assistance would be available within one hour and the Complainant would bear no cost on the same.

        It is further, alleged by the Complainant that he has received one text message from the Road Side Assistant at 09:30 p.m,  wherein the Complainant  was informed that a recovery towing van was deployed for the Complainant’s vehicle. The Complainant waited for more than one hour but the recovery van

Cont......P/4

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       did not reach to him and no update message was provided by the agent of the Opposite Party no. 3. The Complainant repeatedly called to the Road Side Assistance, but the agent of the Opposite Party No. 3 took one after another excuse and asked the Complainant to wait a little longer. The Complainant waited about 2 (two) hours seeking assistance of the agent of the Opposite Party No. 3. But, he did not get any help from him.

      The Complainant further alleged that at around 11:30 p.m the agent of the Opposite Party No. 3 called the Complainant through phone and he was informed that the recovery van was not going to come to his assistance. Due to false assurance of the agent of the Opposite Party No. 3, the Complainant had to suffer unnecessarily and he faced harassment both mentally and physically and furthermore, he had to wait for 2(Two) hours in the blistering cold of Darjeeling and consequently to this he fell seriously ill. The Complainant, finding no other alternative had to ride the Motor Cycle with flat tire for several kilometres as a result of which the rear tyre including rim and the tube was badly damaged.

        The Complainant further alleged that the Opposite Party Company acted in an unfair and unreasonable manner by not providing the service which the Complainant was entitled for and for which he had paid consideration to and thereby the Opposite Parties were deficient in service and they were also negligent for not providing proper service to the Complainant.

         The Complainant further stated that he has also made written complaint to the Customer Service of the Royal Enfield, but of no avail.

Cont......P/5

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C.C- 08 of 2021

        The Complainant therefore, sent one Legal Notice through his Learned Advocate- Shri. Pravesh Biswakarma on 25.05.2021 through post and through e-mail of the Opposite Parties No. 1 and 3 respectively and sought for replacement of tire and adequate compensation and harassment.

         But, it is the allegation of the Complainant that even after receipt of the Legal Notice, the Opposite Parties did not take any step to resolve the dispute of the Complainant. On the contrary, the Opposite Party No. 3 through e-mail dated 28.05.2021 sent one reply to the Learned Advocate of the Complainant and admitted the poor service provided by the Road Side Assistance Team and regretted the inconvenience caused to the Complainant in the same mail. The Learned Advocate for the Complainant was asked to provide certain details and the same was provided without any unnecessary delay. But, the Opposite Party Company did not take any steps.

       Having found no other alternative, the Complainant has instituted this consumer complaint before this Commission for proper relief and adequate compensation for deficiency in service, unfair trade practice and false misleading advertisement by the Opposite Parties.

    The Complainant prays for the following reliefs:-

That a direction be given to the O.Ps

1. for replacement of damaged rear Tyre of the Royal Enfield Himalayan including the Rim and tyre tube owned by the Complainant. 
2. For payment of compensation amounting to Rs. 1, 00,000/- to the Complainant towards mental agony, trauma, harassment, sufferings etc.
3. For payment of Rs. 50,000/ towards damages for false and misleading advertisement.

Cont......P/6

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4. For payment of R. 20,000/ as litigation expenses.
5. Any other order or orders may be passed as the Dist. Commission may deems fit and proper.

         The Complainant filed the following Xerox documents along with the complaint petition and subsequently, filed the said documents in order to prove his case.

   List of the documents filed by the Complainant:-

1. Quotation, amounting to Rs. 2,48,206/ along with MIY options EW + RSA+ NIL DEP of Rs. 4298/ dated 08.02.2021, marked as annexure C-1.
2. Booking Receipt Voucher, showing booking amount of Rs. 10,000/ dated 08.02.2021.
3. Invoice dated 15.04.2021, wherein the Ex- Show room price is showing Rs. 2, 08,655/.
4. Computer generated documents, 06 nos, wherein the Royal Enfield ensured support of road side assistance which included flat tyre assistance and the procedure for availing such service and others as mentioned therein, marked as annexure C-2.
5. Copy of letter of the Complainant sent to the O.Ps through e-mail dated 14.05.2021, marked as annexure C-4
6.  Copy of advocate letter sent to the O.Ps dated 25.05.2021 along with the copy of postal receipt, marked as Annexure C-5.
7.  Copy of reply by the O.Ps through e-mail, dated 30.05.2021 to the Advocate for the Complainant against the Advocate’s letter. 

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       NOTICES have been issued to the Opposite Parties from this District Commission and it reveals from the case record that the Opposite Party No. 3 appeared before this Commission on 20.09.2021 and prays for time for filing Written Version and this Commission allowed his prayer and fixed the case on 02.12.2021 for filing Written Version by the Opposite Party No. 3.

       Further, it is seen from the case record that the Opposite Party No. 1 and 3 has filed Written Version jointly and entered into appearance on 02.12.2021.

       Further, it is seen from the A/D card available with the case record that the Opposite Party No. 2 received the NOTICE on 09.08.2021. But, despite receiving NOTICE, the Opposite Party No. 2 did not turn up before this Commission. Therefore, the case be decided ex-parte against Opposite Party No. 2.

         In the Written Version filed by the Opposite Party No. 1 and 3, the Opposite Parties denied all the material allegations of the Complaint petition and stated that the case is not maintainable in the eye of law and it is also barred by the provision u/s 2 (6), (28), (42) and (47) of the Consumer Protection Act, 2019 in as much as there is no deficiency in service or unfair trade practice caused to the Complainant.

      Further, the Opposite Party No: 1 & 3 stated in the W/V that the case of the complainant is not maintainable in the back drop of the settled principles of law which states that no direction for replacement of the product can be issued where the set is repairable and relied one judgment titled as TATA Engineering & Locomotive Co. Ltd V/s M. Moosa reported in 1994 (3) CPR- 395 Wherein, it has been held by the Hon’ble Commission that-

C.C- 08 of 2021

      ...”if the defects occurring in any goods purchased, the Consumer Protection Act authorized the Forum to have the defects removed, even if there are numerous defects which can be rectified. It will be very hard on the manufacturer to replace the goods or refund its price merely because some defect (not manufacturing defect) appears which can be rectified or defective part can be replaced.”

      The Opposite Party No.1 and 3 in their Written Version referred some other judgments such as –

• Consumer Unity and Trust Society V/s .C.M.D., Bank of Baroda, reported in  1995 (1) CPC 386.
• General Motors India Pvt. Ltd. and Ors. V/s. G.S. Fertilizers (P) Ltd & Ors. MANU/CF/0077/2013. 

      By referring those judgments the O.P No:1 & 3 stated thatthey cannot be held liable for any loss caused to the Complainant, as there isno deficiency or service or negligence done by the O.Ps.

Further, the O.P no:1 & 3 by referring the judgments titled as Ludhiana  Improvement Trust, Ludhiana and Ors. V/s Shakti Co-operative House Building Society Ltd, reported in II( 2009)CPJ-40(SC) stated in the W/V that the case is not maintainable in the back drop of the settled principles of law which states that the O.Ps cannot be held liable for any unfair trade practice when there is no cogent material on record to prove its presence.

      The Opposite Parties No. 1 and 3 denied all the material allegations levelled against the complaint petition, save and except the fact of purchasing

C.C- 08 of 2021

      the Royal Enfield Himalayan Motor Bike (ME3D4A5F1MC002141) manufactured by the Opposite Party No. 1 on 15.04.2020 for an amount of Rs. 2,08,655/- (Rupees Two Lakh Eight Thousand Six Hundred and Fifty Five) by the Complainant.

      The Opposite Party No: 1 & 3 therefore, prayed for dismissal of the case as there was no deficiency of service, unfair trade practice on the part of the O.Ps.

     During hearing of the case, the Complainant adduced evidence and filed Written Examination-in-Chief supported by an affidavit and further submitted documents by making Annexure.

      The Opposite Party No. 1 and 3 filed Questionnaire against the Examination-in-Chief of the Complainant and the Complainant also made reply to that questionnaire. But, it is found that such reply submitted before this Commission was not supported by an Affidavit.

      On the contrary, the Opposite Party led evidence by filing Examination-in-Chief (O.P.W) and the Complainant filed Questionnaire against the Examination-in-Chief of the Opposite Parties No:1 & 3. And reply has been filed by the Opposite Parties on 23.02.2023.

      Before argument of the case, both sides filed written arguments( B.N.A) on 14.03.2023.  The argument was heard in full from both sides on 17.03.2023.

        From the complaint petition, Written Version of the Opposite Parties No. 1 and 3, evidence of both the parties and other materials on record, the following points have been framed:-

C.C- 08 of 2021

Points to be decided

1. Is the Complainant a Consumer?

2.  Is the case filed within the period of limitation as prescribed in law?

    3.  Are the Opposite Parties deficient in providing service towards the

     Complainant?

    4.  Are the Opposite parties involved in any unfair trade practice?

5. Are the Opposite Parties guilty of false and misleading Advertisement?

6. Is the Complainant entitled to get any relief as prayed for?

DECISION WITH REASONS:-

      All the points are taken together for the sake of brevity, avoidance of repetition of facts, convenience for discussion and for arriving at a just decision of the case.

       It is evident from the evidence of the Complainant that the Complainant booked and thereafter purchased one Royal Enfield Himalayan Motor Bike  from the O.Ps Company, which was delivered to the Complainant on 15.04.2021, vide tax invoice No. INV000085DE00074. The Quotation document, booking receipt voucher, both dated 08.02.2021, Tax invoice dated 15.04.2021 issued by the O.P No:2 proves the fact that the Complainant had purchased the said motor cycle from the O.Ps Company at a consideration of Rs. 2,08,655/( Rupees Two Lakh Eight Thousand Six Hundred Fifty Five  Only)

C.C- 08 of 2021

        with availing MIY Options EW + RSA( Road Side Assistance)+NIL DEP, for which he had paid Rs. 4,298/ ( Rupees Four Thousand Two Hundred Ninety-eight Only) on 08.02.2021. The O.P No:1 & 3 did not deny about the purchase of the motor cycle from the O.Ps Company with such facilities.

       Therefore, in our view the Complainant is a consumer under the O.Ps as per the definition of “Consumer” as defined U/S- 2(7) of the C.P.Act, 2019.

      Further, it is seen from the case record that the Complainant had purchased the said motor cycle from the O.Ps on 15.04.2021 and the cause of action had arisen on 13.05.2021 and the instant case was filed on 20.07.2021.

       Therefore, the case is filed within the period of limitation as prescribed U/S- 69 of the C.P. Act,. 2019.

       Further, in order to ascertain whether the O.Ps were deficient or not we have to delve into the evidence of the parties. 

       From the evidence of the Complainant as well as O.P No: 1 & 3 it is evident that at the time of purchasing the Motor Cycle the Complainant availed of the service of road side assistance and paid for that to the O.Ps and the O.Ps also promised that the Royal Enfield would provide Road Side Assistance in any road of the country 24X2 and 365 Days without any hidden conditions. It is seen from the evidence of the Complainant that the Royal Enfield Company website specifically made endorsement about the Road Side Assistance. The Complainant further asserts that one among the many benefits of the Road Side Assistance is the flat tire assistance where in case of flat tire, a Royal Enfield technician will be despatched to the location to attend the Motor Cycle and that assistant can be made by just dialling a phone call.

C.C- 08 of 2021

      It is the allegation of the Complainant that on the night of 13.05.2021 at about 9:00 p.m, when the Complainant was riding the Motor Cycle from Ghoom to Darjeeling the Complainant noticed that his Motor Cycle had a flat tire in the rear wheel near Ghoom Monastery. The Complainant decided to avail the Road Side Assistance service and called the Toll Free Help Line Number being 1800 2100 007 at about 09:22 p.m and the Road Side Assistant received the call and after a long discussion with the agent of Opposite Party No. 3, it was informed that the service could be provided to the Complainant and accordingly the Complainant was asked to provide his current location and the Complainant in response of the same informed his present location and the agent of the Opposite Party No. 3 assured that the assistance would be available within one hour and the Complainant would bear no cost on the same.

        It is further, stated by the Complainant that he has received one text message from the Road Side Assistant at 09:30 p.m,  wherein the Complainant  was informed that a recovery towing van was deployed for the Complainant’s vehicle. The Complainant waited for more than one hour but the recovery van did not reach to him and no update message was provided by the agent of the Opposite Party no. 3. The Complainant repeatedly called to the Road Side Assistance, but the agent of the Opposite Party No. 3 took one after another excuse and asked the Complainant to wait a little longer. The Complainant waited about 2 (two) hours seeking assistance of the agent of the Opposite Party No. 3. But, he did not get any help from him.

      The Complainant further stated that at around 11:30 p.m the agent of the Opposite Party No. 3 called the Complainant through phone and he was informed that the recovery van was not going to come to his assistance. Due to false assurance of the agent of the Opposite Party No. 3, the Complainant

C.C- 08 of 2021

       had to suffer unnecessarily and he faced harassment both mentally and physically and furthermore, he had to wait for 2(Two) hours in the blistering cold of Darjeeling and consequently to this he fell seriously ill. The Complainant, finding no other alternative had to ride the Motor Cycle with flat tire for several kilometres as a result of which the rear tyre including rim and the tube was badly damaged.

      Further, from the documents annexed by the Complainant and other materials on record it is seen that on the very next day i.e on 14.05.2021 the Complainant had informed the O.Ps about the incident and non- cooperation through mail, but of no avail.

      From the Legal Notice sent by the Complainant, through his Learned Advocate- Shri. Pravesh Biswakarma on 25.05.2021 by post and through e-mail of the Opposite Parties No. 1 and 3 respectively it is seen that the Complainant sought for replacement of tire and adequate compensation and harassment. The Complainant stated that even after receipt of the Legal Notice, the Opposite Parties did not take any step to resolve the dispute of the Complainant. On the contrary, the Opposite Party No. 3 through e-mail dated 28.05.2021 sent one reply to the Learned Advocate of the Complainant and admitted the poor service provided by the Road Side Assistance Team and regretted the inconvenience caused to the Complainant in the same mail. The Learned Advocate for the Complainant was asked to provide certain details and the same was provided without any unnecessary delay. But, the Opposite Party Company did not take any steps. The reply sent to the Ld. Advocate for the Complainant through mail speaks about the same.

C.C- 08 of 2021

       It is also seen from the evidence of the O.P No:1 & 3 that that O.P No:1 & 3 admitted the fact that  on 13.05.2021, the Complainant had made first call to O.P No:3 on tool free number for road side assistance and asked for help as his bike had a flat tyre in the rear wheel. Upon receiving the information, the agent of the O.P No:3 assured the Complainant that the assistance would be provided and a recover truck(toeing van) was deployed to bring the Complainant’s bike.

       It is also stated that the complainant had made a call again to the agent of the O.P No; 3 as the toeing van was delayed. Upon receiving the call, the agent of the O.P No:3 told the Complainant that he had to wait as the assistants/ workers were not available at that time due to Covid-19 lockdown and heavy rain.  It is also stated that after two hours, the Complainant again called to enquire the toeing van upon which the answering O.P No:3 informed that the toeing van could not be arranged due to heavy rain and the ongoing Covid-19 lockdown.

        From the evidence of the parties and the documents annexed as evidence, it is clear to us that the problem of the Complainant, which he had faced with his motor cycle on the fateful night, was not resolved by the O.Ps, despite promise made by the O.Ps for availing of the facility of Road side Assistance.  The email sent by the O.Ps to the Advocate of the Complainant clearly shows that the O.Ps did not provide service to the Complainant on the fateful night.

       During hearing of the argument, Ld. Advocate for the O.P No:1 & 3 admitted the fact that no service was provided to the Complainant on the night of 13.05.2021  due to the above noted reasons and they are now ready and willing to replace the tyre and tube along the damaged rim of the motor cycle of the Complainant. 

C.C- 08 of 2021

      From the case reference mentioned by the O.Ps, titled as TATA Engineering & Locomotive Co. Ltd V/s M. Moosa reported in 1994 (3) CPR- 395 Wherein, it has been held by the Hon’ble Commission that-

      ...”if the defects occurring in any goods purchased, the Consumer Protection Act authorized the Forum to have the defects removed, even if there are numerous defects which can be rectified. It will be very hard on the manufacturer to replace the goods or refund its price merely because some defect (not manufacturing defect) appears which can be rectified or defective part can be replaced.”

      Here, the Complainant did not ask for replace of the goods purchased or refund of money, but simply asked for proving post sale service which the O.Ps had promised for Road side Assistance as and when called for. But unfortunately, the O.Ps failed to provide such service to the Complainant for which the Complainant had to suffer a lot  and he had replaced the damaged part of the motor cycle by his own after incurring an expenditure of Rs. 15,000/. So, the judgment referred above has some relevance in this instant case.

      From the discussion made above, we are of the view that the O.Ps were deficient in providing service to the Complainant and he is entitled to get relief but in part.

      Regarding allegation of unfair trade practice and false and misleading advertisement by the Opposite Parties, the Complainant did not adduce any single scrap of paper or any cogent evidence.

C.C- 08 of 2021

      Therefore, in our view the Complainant has failed to prove these two points and no amount can be awarded for such.

      In order to ascertain the quantum of compensation we are of the view that an amount of Rs. 20,000/-( Rupees Twenty Thousand only) is just and  appropriate in order to mitigate the loss suffered by the complainant and for mental pain and sufferings sustained by him and all the O.Ps are jointly or severally liable and responsible to pay the same as per the order follows.

       And considering the nature and gravity of the case, we think that an amount of Rs.10,000/-( Rupees Ten Thousand only) as cost of the proceeding is just and proper to be awarded and all the O.Ps are jointly or  severally liable to pay such amount as directed herein below.

Therefore, we award such amount as compensation and litigation cost.

    All the points have been discussed elaborately and disposed of.

   The case of the Complainant is thus allowed.

         Hence it is ;

O.R.D.E.R.E.D.

  That the Consumer Complaint, being C. C No. 08 of 2021 is allowed on contest against the Opposite Parties No. 1 and 3 and ex-parte against the Opposite Party No. 2, but in part.

   All the Opposite Parties are jointly and severally directed to replace the Rear Tyre of the Royal Enfield Himalayan Motor Cycle of the Complainant with Tube including the Rim within 60 days from the date of this order.

C.C- 08 of 2021

       All the Opposite Parties are further jointly and severally directed to pay Rs. 20,000/- (Rupees Twenty Thousand) to the Complainant as Compensation within 60 days from the date of this order.

      All the Opposite Parties are further jointly and severally directed to pay Rs. 10,000/- (Rupees Ten Thousand) to the Complainant as cost of the proceeding within 60 days from the date of this order.

       In case of any default, the Complainant is at liberty to file an Execution Application against the O.Ps as per the provision of law.

     Let a free copy be supplied to each of the parties as per the provision of the C.P Act, 2019 and Regulation No: 21 of the C.P( Consumer Commission Procedure) Regulations, 2020.

 Accordingly, the case is allowed and disposed of.

  Member                                                                           President-in- Charge

 D.C.D.R.C,                                                                                     D.C.D.R.C,

Darjeeling                                                                                     Darjeeling

 Typed and Corrected by me

..............................................

( Siddhartha Ganguli, President-in- Charge)