Karnataka

Bangalore 4th Additional

CC/858/2017

Sharath Kumar P. - Complainant(s)

Versus

Royal Enfield Ltd., - Opp.Party(s)

Mrs.Haripriya Mohan

01 Aug 2018

ORDER

Complaint filed on: 28.04.2017

                                                      Disposed on: 01.08.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027        

 

CC.No.858/2017

DATED THIS THE 1^st AUGUST OF 2018

 

PRESENT

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

	Complainant/s	V/s	Opposite party/s
	Sharath Kumar.P., Aged 23 years, S/o Panner Selvam No.136, B Block, Rashad Nagar, Arabic College, Bangalore-560 045.   By.Adv.Haripriya Mohan	1	Royal Enfield Ltd., No.624, Thiruvothiyur High Road, Thiruvothiyur Chennai-600019. Rep by its Managing Director.
		2	CVS Motors, No.812, 5th A Cross, HRBR Layout, Kalyan Nagar, 1st Block, Bangalore-43. Rep by its Proprietor.   By Adv.R.B.Sadasivappa.
		3	Tata Capital Financial Services Ltd., 82/1, 1st Floor, Krishna Tower, Richmond Road, Richmond Town, Bangalore-560 023. Rep by its Asst. Manager.   OP No.3 is deleted

 

 

PRESIDENT: SRI.S.L.PATIL

 

1.       The Complainant has filed this complaint as against the Opposite Parties 1 and 2 directing to replace the defective vehicle with a brand new one failing which refund a sum of Rs.1,91,294/- with interest at 18%, to pay Rs.2,00,000/- as damages/compensation for the utter deficiency of services resulting in erosion of his hard earned money, mental agony, irreparable loss of reputation in society, physical strain, damage both mental and financial and for causing avoidable hardship, misery, torture, agony, anxiety, waste of time, energy to the Complainant and to grant any other reliefs deemed fit in the circumstances of the case.

 

2.       The brief facts of the case of the complainant are that he visited the showroom of the OP No.2, who is a dealer of vehicles manufactured by the OP No.1 on 4.4.2016. The sales people of the OP No.2 recommended and convinced him to buy a Royal Enfield bike manufactured by the OP No.1 by describing the bike as the best in the market in terms of durability, sturdiness, quality, high mileage giving and worthy of the high price point. Being thus convinced by the aggressive selling techniques of the OP No.2, he booked the purchase of a Royal Enfield motorbike being model RE Classic 350 by paying token advance of Rs.5000/-. On 19.7.2016, he made a down payment of Rs.56,700/- by cash and since he was not financially able to afford the cost of the bike at one go, the sales people of the OP No.2 persuaded him to approach a finance company which is tied to the OP, for financing him for the purchase of the bike. Thus convinced by the OP No.2, he obtained a loan from a finance company for the purchase of the bike.  The finance company paid Rs.99,870/- to the OP No.2 towards the purchase of the bike. The complainant submits that he is being charged Rs.24,978/- as finance charges and credit amount of Rs.4,746/- by the Finance Company. He in toto has incurred a liability of Rs.1,91,294/- and on accepting the payments, the OP NO.2 delivered the said bike to him on 23.7.2016 and issued warranty certificate for 2 years from date to purchase. The complainant submits that immediately after taking delivery of the bike, loud noise started emanating from the bike which was most unusual. It was as though a helicopter was taking off and not like a bike moving on the road. He brought this problem to the notice of the OP No.2 and was assured by them that after covering the distance of 2000km, the bike would be tuned and the noise would subside. The bike had other multifarious problems like defective side stand starting problem, hydraulic tappet noise, wheel wobbling noise, engine oil leakage gear shifting problem, vibration of the bike and the mileage of the bike was also as low as 20 kms per litre whereas the OP No.2 had promised 40km per litre. He brought this to the notice of the OP No.2 again within 2 days of the delivery of the bike as the number of defects in the bike became more in number and evident. The complainant submits that the problems did not resolve on its own as promised by the OP No.2 and he dropped the bike for service at the Op No.2’s service center, within 2 weeks of taking delivery of the bike. This repetitive problematic cycle continued even after giving the bike for service for a ridiculous 8 to 10 times. Thereafter, he started recording the conversations with the Ops 1 and 2, which took place through emails and text messages, regarding the defects in the bike. The complainant regretfully submits that he has given the brand new bike for service at least 10 times in the span of few months of purchase. The bike has been with the OP No.2 for more than 6 months due repair works. The Op No.2 has replaced 10 parts of the bike by their own admission through their email dt.15.2.2017. On one visit to the OP No.2’s service station when the bike was given for service, he was shocked to see that the engine case was replaced, and the bike was dismantled completely. This act of the OP was totally unwarranted as according to the OP No.2’s earlier assurances, the bike just needed to get used to the roads. All of the above makes a prudent man doubt if a new, functioning and reliable bike was infact sold by the OP or an old, damaged, defective bike was passed off to an unsuspecting consumer. The above mentioned defects in the bike/acts of the Ops do not speak of fair trade practices, good customer service and integrity. The complainant submits that the sale of the defective bike by the Ops and the negligent attitude of the OP No.2 was escalated to the regional office of the Op No.1, but he was not attended by the Op No.1 either. The complainant submits that as the bike was never free of defects and was most of the time with the OP No.2, he has not even been able to register the bike with the concerned Govt. authorities which could lead to unwanted risks and consequences to him, for which the Ops 1 and 2 are solely responsible. The complainant submits that as he had no alternative mode of personal transport and he had to travel to and from work at odd hours at which time, no public transport is available and he was put to great hardship and inconvenience and that the OP No.2 had also given a stand by bike in January after serious demand from the Complainant and his friend. The complainant submits that he was so frustrated and inconvenienced by the lack of response from the Ops, he was constrained to lodge a complaint on 9.3.2017 with the Banaswadi Police Station, Bangalore and the police station asked the OP No.2 to appear before them and give an explanation, but the same was ignored and he was threatened for having approached the police. Needless to say this constitutes criminal intimidation under Indian Penal Code apart from lack of customer courtesy, dutifulness and legal obligation. The complainant is still repaying the loan obtained from the finance company, with great difficulty as he is a blue collared employee at a small-time shop. The complainant further submits that being totally dissatisfied and unhappy over the callous approach, deficiency in service of the Ops which caused him a lot of hardship, misery and inconvenience, he issued a legal notice dt.27.3.2017 asking them to immediately refund Rs.1,91,294/- being the price of the bike and also Rs.2,00,000/- as damages for having caused erosion of his hard earned money, mental agony, loss of reputation, physical strain, expenditure on alternative transport, bike towing charges, travel to and from the OP’s office and telephone calls. Even after the receipt of the notice, the Ops 1 and 2 have failed to respond. The complainant submits that he has been put to huge embarrassment in the society due to the constant breaking down of the bike as people started believing that he had purchased a second hand bike and was lying to people that he had bought a brand new one. Hence, this act of the Ops of selling a defective bike has resulted in his loss of reputation. The selling of a non-functioning bike and the rude, threatening and irresponsible behavior, lack of response of the Ops on approaching them with the complaints related to the bike constitutes deficiency in service and has caused him lot of physical hardship, mental torture and agony and monetary loss, which needs to be compensated by its needless to say that he feels he purchasing big trouble by paying more than a lakh of rupees, which is no mean sum given him source of income. The complainant submits that Ops are liable for breach of contract as they have not complied with the terms as assured by them and have acted extremely negligently towards him after fleecing him to the core and as stated supra, the Ops have committed gross deficiency in service and have left no choice to him, but to prefer this complaint before this Forum.

 

 

          3.       The notices were ordered to the Ops. The 2^nd Opposite Party is absent. The OP No.1 did appear through their counsel and filed version and denying the contents of the complaint filed by the Complainant.  The Opposite Party No.1 submits that the complainant has made false and misleading statements in his complaint and he has presented frivolous, baseless, incomplete facts and circumstances of the case. The OP No.1 submits that he is a unit of Eicher Motors Limited and has been a pioneer of powerful technology since 1955 in India. With its manufacturing base in Chennai, the OP No.2 offers a variety of models catering to the needs of the traditional segments, the enthusiasts, the leisure bikers and the urban youth.         The Opposite Party No.1 submits that he manufactures quality bikes that are well known worldwide for their reliability and toughness. The OP No.1 has state-of-the–art infrastructure to manufacture the same and also has an active in house Research & Development wing. Bikes manufactured by Op No.1 are very popular and usually require one to two months advance booking. When introducing a new product, a dedicated team of Op NO.1 undertakes all related planning which includes a rigorous customer contact program, design, concurrent engineering and testing processes. The motorcycle design team is well equipped with high end CAD/CAM workstations and the latest modeling software. Top-notch designers work continuously to come up with innovative bikes designs to meet the market’s expectations. Continuous rigorous testing of motorcycles and components is carried out by OP in its product development testing lab to come up with more improvements in enhancing the customer experience. The OP manufacturing operations go through a series of modernization and improvement efforts, with a number of automated processes. The OP has put in place modern manufacturing practices like cellular layouts, statistical process controls and flexible manufacturing systems. The Chennai manufacturing facility has received the ISO 9001 certification and for managing its operations in a clean and safe environment, it has obtained the ISO 14001-quality certification and kaizens are implemented to ensure the quality levels are kept at an ever rising pace. The OP submits that he ensures that all the components used in the bikes are sourced from the best vendors in the Indian automotive industry, who are geared to supply according to its company’s stringent quality standards. He works closely with all of its suppliers, giving them technical and managerial support while maintaining practices like Direct-on-line and vendor self-certification. The OP submits that he exports motorcycle to 94 counties through 92 importers and he set up has a wide network of 12 brand stores, 600 dealers in all major cities and towns, 5 dedicated gear stores and over 200 authorized service centres. Bikes manufactured by him are very popular and usually require one to two months advance booking. He sells more than 40,000-50,000 bikes per month and more than 6,00,000 bikes in a year.

The OP submits that owing to the popularity of OP No.1 most of the bike models have to be booked one to two months in advance. It is further submitted that he follows the best quality practices with respect to workmanship and materials used in its bikes. He warrants its bikes to be free from all manufacturing and material defect under normal use, subject to certain terms and conditions.

The OP submits that the customer at the time of booking and delivery is provided with a warranty booklet. Warranty Guidelines apart from other terms and conditions, explicitly state the following:

1.       RE will replace or repair defective part (s) at their dealerships and authorized service centre, free of charge within a period of 24 months or 20,000 kms from the date of sale, whichever is earlier.

2.       During the warranty period, RE’s obligations shall be limited to repairing/replacing part (s) of the vehicle for free, only if the part (s), on examination is deemed to have a manufacturing defect. Defective part (s) which have been replaced will become the sole property of RE.

3.       The warranty shall be applicable only if all the 4 free services & periodic maintenance services are availed in the respective period/kilometer ranges as per the schedule in the owner’s manual from RE dealers/authorized service centre.

4. Warranty shall not apply to…damages due to non-genuine parts, lack of proper maintenance, incorrect riding habits.

5. RE reserves the right of finally decide on all warranty claims.” Warranty guidelines also state that warranty does not apply to electrical equipments which are subjected to normal wear and tear. These warranty guidelines are also mentioned in the biker’s owner manual which is provided to the customers at the time of the delivery of the bike. The OP submits that during the warranty period, only defective parts of the vehicle can be repaired or replaced free of cost and a new vehicle is not issued to the customer. The warranty guidelines specifically stated that the obligation of this OP is only limited to repairing/replacing part (s) of the vehicle for free, only if the part (s), on examination is deemed to have a manufacturing defect. The OP submits that the vehicles bought require routine maintenance and servicing. Maintenance schedules are based on time and distance. Owner’s manuals include a chart listing of the maintenance tasks. Vehicle parts require inspection, cleaning, replacement, adjustment and/or lubrication at regular intervals. The OP submits that the complainant bought model “Bullet-Classic 350 CC’ on 21.7.2016 from OP No.2 for Rs.1,61,570/-. The OP submits that there were no issues with the bike of the complainant. The complainant has brought his bike on 4.8.2016 for availing free services, subsequently on10.10.2016 and 7.12.2016 and every time servicing of the bike was done as per his satisfaction. There is no defect in his bike whatsoever. Moreover, during the free services, the bike of the complainant was thoroughly inspected and some of the vehicle parts were lubricated/correctly adjusted, however, no issue or problem was found with any of the vehicle parts of the complainant’s bike. The OP submits that the complainant reported the issue of noise from the engine and thereafter the engine of his bike was thoroughly inspected and his bike was subsequently serviced. However, no such problem as reported by the complainant was found in his bike. The complainant kept complaining about the noise from the engine of his bike and every time on his complaint, the engine of the bike was thoroughly checked and inspected. However, no such problem was ever found in his bike.  The OP further submits that it was explained to him by the OP that the sound is the signature sound of the engine and there is no abnormal noise from the engine as reported by him. It was further explained to him that the concern raised by him with respect to the engine sound relates to the characteristic sound of the engine and the said sound is within the normal bandwidth.  This has no impact on the performance of the engine of the bike whatsoever. Being customer oriented company and in goodwill gesture replaced CAM Gear, Crank case and rear chain of the bike worth Rs.32,500/- at free of cost. The OP further submits that the complainant kept on insisting that his bike be replaced. It was explained to him that according to warranty guidelines and company policies, a new vehicle cannot be issued to the customer and neither his money can be refunded.  Only defective parts of the vehicle, if any, can be changed free of cost. It is pertinent to mention that the complainant was suggested to get the engine of the bike replaced and as a gesture of goodwill, it was also offered that the same will be done by free of cost by the Ops. However, this was refused by the complainant and the same clearly shows his malafide intentions. The OP further submits that it is pertinent to mention that the complainant bike has successfully completed 7500 k.m. in past eight months as per the record maintained by the company. It is also submitted that the changing reading of the odometer is evidence of the same. The complainant’s bike is free from defect and is in good roadworthy condition. The OP further submits that the bike of the complainant is in good and roadworthy condition and suffers from no defect whatsoever. Moreover, full support and assistance has been given to the complainant at all times by the Ops and the same is also evident from the job card signed by the complainant is also evidence of the same. Copy of the Job Card No.8854 dt.19.1.2017. The OP further submits that the complainant is falsely alleging that there are issues with the handle and engine of his bike. The claims made by the complainant in the complaint are baseless, incorrect and vehemently denied. The complaint filed is wrongful and appears to be ill-motivated and has only been issued to extract money from the OP. The OP submits that full support and assistance has given to the complainant at all times by the OP No.1 and his authorized service centres. There is no manufacturing defect in his bike whatsoever. Complainant’s vehicle is in good and roadworthy condition and suffers from no defect whatsoever. The OP further submits that he denies each and every contention, allegation and averments made in the complaint. On these grounds and other grounds prays for dismissal of the complaint. At the instance of the Complainant, name of OP No.3 is deleted.

 

4. The Complainant to substantiate his case, filed his affidavit evidence and got marked as Ex-A1 to A22. The 1^st Opposite Party has also filed their affidavit evidence and got marked as Ex-B1 to B4. The Complainant as well as 1^st Opposite Party has filed his written arguments. Heard both sides.

           

5. The points that arise for our consideration are:

       1) Whether the Complainant proves the deficiency in service on

            the part of the OPs, if so, whether he is entitled for the relief

            sought for?

        2) What Order?

                  

 

6.  Our answers to the above points are as under:

 

Point No.1 : Partly in the affirmative

Point No.2 : As per the final order for the following

REASONS

 

7. POINT NO.1 :   We have briefly stated the contents of the complaint as well as the version of the 1^st Opposite Party. The undisputed fact which reveals from the pleading of the parties goes to show that the Complainant has booked the Royal Enfield motor cycle (hereinafter referred as the said motor cycle). In this context, he had paid an amount of Rs.1,31,270/- which can be seen ongoing through Ex-P1 to P4 which are order booking form, booking receipt, customer receipt, tax invoice. The said motor cycle also insured with Reliance General Insurance Company Ltd., as per Ex-P5.

 

8.       It is the specific grievance of the Complainant that soon after purchase of the said vehicle, loud noise started emanating from the bike which was most unusual. It was as though a helicopter was taking off and not like a bike moving on the road. This fact was brought to the notice of the OP No.2 and was assured by them that after covering the distance of 2000km, the bike would be tuned and the noise would subside. Further, the said bike had other multifarious problems like defective side stand starting problem, hydraulic tappet noise, wheel wobbling noise, engine oil leakage gear shifting problem, vibration of the bike and the mileage of the bike was also as low as 20 kms per litre whereas the OP No.2 had promised 40km per litre. According to the Complainant, 10 parts were replaced. Inspite of it, the problems continued to be perpetual.  We have gone through the available materials on record which goes to show that 10 parts of the said vehicle were replaced. Further, it was carried out 4 free service and 3 paid service which can be seen ongoing through the contents of Ex-7, 7(a) to 7(d). According to the case of the 1^st Opposite Party, it has properly attended the complaints of the Complainant in respect of the said motor cycle, but there was no any manufacturing defect in the said motor cycle. According to the case of the Complainant, the said motor cycle having the manufacturing defect, hence, he sought for replacement. The Complainant filed an application for appointment of Commissioner for the examination of the said motor cycle, but the said application was not pressed by the Complainant by filing a memo dt.19.7.2018. Now the question that crops up for our consideration is whether any expert opinion is necessary in deciding this case? In our considered view, it is not necessary for the simple reasons that the 1^st Opposite Party itself admits in respect of replacing 10 spare parts of the said vehicle. That itself indicates in respect of the problem found in the said motor cycle. Even though the Opposite Party has attended the grievance of the Complainant, but the say of the Complainant is that the said vehicle is not road worthy. Hence, he prayed for replacement of the said vehicle. 

         

          9.       It is the settled proposition of law as laid down by the Hon’ble Supreme Court in the catena of the decisions including the decisions reported in (2006) 4 SCC 644 in the case of Maruti Udyog Ltd., V/s Susheel Kumar Gabgotra wherein it is held that:

 

Consumer Protection Act, 1986-Ss.14 (1) (a) & (d), 18, 22 and 23-Manufacturing defect-If established, on facts-Relief-Replacement of the entire item or replacement of defective parts only called for-Purchase of car-Defect in a part-Delay and negligence in removal of defect-Warranty undertaking to repair or replace the defective part free of cost-Clutch assembly developing defect-Seller erroneously advising the buyer to take the car to K in another city and buyer doing accordingly-Realizing the error, the seller asking the buyer to leave the vehicle at the workshop for downing of the engine but the buyer not agreeing-In such circumstances inference of any manufacturing defect in the car, held, not justified-Defective part (clutch assembly) directed to be replaced without any charge and a consolidated sum of Rs.50,000 awarded to the buyer for cost of travel to K, for inconvenience resulting from seller’s acts and towards cost of litigation-J & K Consumer Protection Act, 1987 (16 of 1987).S.17 

 

In the instant case, the said motor cycle in question having some abnormal sound and some other related problems which according to the 1^st Opposite Party got rectified by replacing the said parts which is not to the satisfaction of the Complainant. In this context, we direct the 1^st Opposite Party is the manufacturer and 2^nd Opposite Party is the seller to get repaired the said motor cycle to the satisfaction of the Complainant to be road worthy by extending additional 6000 km or 6 months whichever is earlier.

 

10.     With regard to the compensation of Rs.2 Lakhs is concerned, the Complainant has not adduced any cogent evidence how he is entitled for an amount of Rs.2,00,000/-. But any how looking to the E-mail correspondence between the Complainant and the Opposite Parties goes to show that the said vehicle was not get repaired at the earliest. Hence, an amount of Rs.5,000/- is awarded being compensation with cost of litigation of Rs.3,000/-.  Accordingly, this point is answered partly in the affirmative.

11.     POINT NO.2: In the result, we pass the following:

 

ORDER

 

The complaint filed by the Complainant is allowed in part. The 1^st Opposite Party is the manufacturer and the 2^nd Opposite Party is the seller to whom we direct to get repair the said Royal Enfield Motor Cycle being Model RE Classic 350 in a road worthy condition by extended warranty of its additional 6000 kms or 6 months whichever is earlier. Further, the Opposite Parties 1 and 2 are directed to pay Rs.5000/- being compensation with cost of litigation of Rs.3,000/- to the Complainant.

 

The Opposite Parties are directed to comply this order within 6 weeks from the receipt of this Order. Failing which, the Complainant is at liberty to take proper steps as per law.

Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open Forum on 1^st August 2018).

(ROOPA.N.R)     MEMBER

(S.L.PATIL)     PRESIDENT

 

 

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sharath Kumar P., who being the complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-P1	Original Order booking form dt.4.4.2016
Ex-P2	Original booking receipt dt.4.4.2016
Ex-P3	Original customer receipt dt.19.7.2016
Ex-P4	Original tax invoice
Ex-P5	Original insurance premium paid receipt dt.26.7.2016.
Ex-P6	Copy of warranty Card
Ex-P7	Copy of free service cards (5 in numbers)
Ex-P8	E-mail complaint dt.13.1.2017
Ex-P9	Text messages sent to the OP
Ex-P10	Copy of Job Card dt.19.1.2017
Ex-P11	Copy of Job Card dt.1.3.2017
Ex-P12	E-mail complaint dt.1.3.2017
Ex-P13	E-mail response dt.1.3.2017
Ex-P14	Photographs of the dismantled bike
Ex-P15	Complaint registration acknowledgement dt.9.3.2017
Ex-P16	Police notice dt.10.3.2017
Ex-P17	Legal notice dt.27.3.2017
Ex-P18	Postal Receipts
Ex-P19	Postal Acknowledgements (2 in numbers)
Ex-P20	Postal cover retuned
Ex-P21	Reply to notice
Ex-P22	Account statement from Tata Capital

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

Thipppesh V.S. who being the Authorized Signatory of OP 1 was examined.

Copies of Documents produced on behalf of OP 1 

 

Ex-B1	Authorization Letter
Ex-B2	Job Card
Ex-B3	Owner’s Manual Card
Ex-B4	Invoice

 

 

 

(ROOPA.N.R)       MEMBER

(S.L.PATIL)    PRESIDENT