BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

C.C. No.159/2021 Filed on 12/04/2021

ORDER DATED:28/02/2024

ORDER

SRI. VIJU V.R : MEMBER

          The complainant has presented this complaint before this Commission under Section 35 of the Consumer Protection Act 2019.  The brief fact of the case is that the complainant had purchased a Royal Enfield 350 bike on 23/05/2020 from the 1^st opposite party.  That before completing 750 kms, the vehicle showed over heating of the engine and discoloration of bend pipe near the engine and that defects were intimated to the Marikar Motor service centre and technician came and told the complainant that all the problems were resolved.  But the problem persisted.  Again the complainant complained about this to the service centre.  For so many months the vehicle was kept in the service centre.  The service centre personels have not given proper protection to the vehicle, and hence crash guard and the Enfield sticker are damaged and also the back side indicator was also replaced.  Even though it was intimated to the complainant from the Marikar Motor Service Centre that all the problems were resolved but when the complainant took the vehicle from the service centre it was seen that the problem still persisted. The matter was again intimated to the Marikar Motor showroom Manager.  But the 1^st opposite party was not ready to resolve the problems of the vehicle now they were ready to hear the grievances of the complainant. The service personels of Marikar Motor showroom behaved in rude and in an arrogant manner towards the complainant and her husband.  Since the problem persisted the complainant herself transferred the vehicle from Marikar showroom to the Marikar service centre.  But the problem of the vehicle was not resolved by the opposite of parties 1 to 3.  The complainant alleges that the problem was due to the manufacturing defect of the vehicle.  The act of the opposite parties 1 to 3 amounts to deficiency in service, hence this complaint.

Even though the opposite parties 1 to 3 received notice, the opposite parties 1 & 2 did not appear before this Commission, hence opposite parties 1 & 2 were set ex parte.  

The 3^rd opposite party filed version and averred that the complaint is not maintainable either in law or on facts.  It is admitted that they have replaced the bend pipe under warranty.  The showroom staff or the Manager doesn’t behave badly towards the complainant.  The 3^rd opposite party is the oldest continuous-production motor cycle manufacturer in the world.  Continuous rigorous testing of motorcycle and components is carried out by the 3^rd opposite party in its Product Development Testing Lab to come up with more importance in enhancing the customer experiences.  The first service was availed by the complainant on 24/08/2020.  During the second service the complainant mentioned the issue and it was examined during service.  A complaint has been reported on 12/04/2021 for engine overheating and slight discoloration reported on exhaust pipe by customer and dealer have inspected and found no abnormalities and it was found to be normal and informed the complainant to take delivery.  But the complainant refused the same even after sending reminders and later she came on 17/08/2021 and took the delivery.  The complainant has filed a consumer complaint on 12/04/2021 the date on which she reported the issue to the service centre.  The allegations that the crash guard, indicator and stickers were damaged are false. There is no manufacturing defect or failure of service from the 3^rd opposite party, hence the complaint may be dismissed with the cost. 

                        Issues to be ascertained:

1. Whether there is any deficiency in service or unfair trade practice from the side of opposite parties 1 to 3?
2. Whether the complainant is entitled to get the reliefs?

Issues (i) & (ii):- Both these issues are considered together for the sake of convenience.  The complainant has filed proof affidavit and has produced 10 documents which were marked as Exts.A1 to Ext.A10.  Ext.A1 is the copy of RC book.  Ext.A2 is the copy of service book.  Ext.A3 is the copy of insurance.  Ext.A4 is the copy of cash receipt – vehicle voucher.  Ext.A5 is the copy of the booking order.  Ext.A6 is the copy of tax invoice dated 14/05/2020.  Ext.A7 is the copy of tax invoice – service dated 24/08/2020.  Ext.A8 is the copy of delivery receipt.  Ext.A9 series are the photos.  Ext.A10 is the letter dated 24/06/2021.  The main allegation raised by the complainant is that the motorcycle showed over heating of the engine as well as discolouration of the bend pipe soon after the purchase of the vehicle.  It can be seen from Exts.A4 &A5 that the complainant has purchased vehicle from 1^st opposite party for an amount of Rs 1,66,499/-.  It is admitted by the 3^rd opposite party that during the 2^nd service the complainant has mentioned the issue and also regarding the discolouration of the bend pipe.  It is also admitted by them that the bend pipe was replaced under warranty.  Even though 3^rd opposite party has contended that there is no manufacturing defect cannot be taken into account as they have not established before this commission that how they reached the conclusion that there is no manufacturing defect.  The suitable party who can say whether there is no manufacturing defect is the 1^st opposite party.  But they didn’t appear before this commission. The repeated visits of complainant to the 1^st opposite party are more than sufficient to demonstrate that the vehicle had some fault, which was brought to the notice of 1^st opposite party within a short span of time from the date of purchase of the vehicle. There is no contra evidence to show that the overheating problem of the motor cycle was rectified by 1^st opposite party.  If a vehicle displays defects from the outset and the dealer acknowledges these defects, it conclusively points to manufacturing flaws.  Even though the complainant has not adduced any expert evidence to prove that there is manufacturing defect has been overcome by the non-appearance of the 1^st opposite party.  When a consumer buys a new vehicle he is under the impression that a new vehicle is bound to be mechanically perfect or that a brand new vehicle would be defect free.  If the vehicle is defective a consumer has a right to seek its replacement or refund of the price.  

The Hon’ble National Commission in Tata Motors Ltd. Vs Bishamber Nath Sikka and others in Revision Petition No. 3301/2008 has held that “it is very clear that vehicle did suffer from defects, as it had to be taken to the workshop of the dealer time to time. The owner of the vehicle is not expected to take such vehicle to the workshop a number of times, unless the vehicle suffers from genuine defect. It becomes duty of the manufacturer as well as dealer to solve the problem of the complainant and ensure that the vehicle is delivered back to him in a road worthy condition free from all defects.” Similarly in Maruti Suzuki India Ltd. Vs Dr.Koneru Satya Kishre, in Revision Petition No. 3798/2007, the Hon’ble National Commission has held that “a vehicle is said to be suffering from defect, if there is any fault, imperfection or short coming in the quality, quantity, potency, purity or standard, which was required to be maintained under any law in force. It would be seen from the above that whether the defect in the vehicle qualified to be called a manufacturing defect or not, it was the duty of Ops to take steps to remove the defects and provide the vehicle to complainant in a road-worthy condition.”

                  We are of the opinion that there is no provision in the Consumer Protection Act that absolves the manufacturer of goods from the liability to compensate having sold defective goods.  The word ‘defect’ provided by Sec. 2(10) of the Act which states:

“defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or  [under any contract, express or implied, or] as is claimed by the trader in any manner whatsoever in relation to any goods;

The fact remains that law framers had provided such strict guidelines against those manufactures who provide defective products to exploit consumers.  It also remains a fact that any person who buys a vehicle does so with an object that the same will provide comfort and peace of mind, however, if such a vehicle starts giving trouble and the consumer is made to visit workshop time and again then it is definitely an area of concern as it is clear case of mental agony, pain and harassment. Everyone wants a hassle free vehicle.  The owner of a vehicle is not expected to take such vehicle to the workshop a number of times, unless the vehicle suffers from a genuine defect.  Under these circumstances, it becomes the duty of the manufacturer as well as the dealer to solve the problem of the complainant and ensure that the vehicle is delivered back to him in a road-worthy condition free from all defects.  In the present case, however, the same appears not to have been done. When there is allegation of manufacturing defects and the 1^st & 2^nd opposite parties has not contested the allegations despite notices were served, the vehicle is presumed to be defective.                 1^st opposite party being the dealer is duty bound to ensure that the vehicle sold by them are free of any defects.  The dealer shall be liable for the loss caused to the purchaser along with the manufacturer of the vehicle, hence 1^st & 3^rd opposite parties are liable for selling defective motorcycle to the complainant.  The 2^nd opposite party being a workshop is not liable for the manufacturing defect of the vehicle, hence 2^nd opposite party is exonerated.

In the result complaint is partly allowed. The opposite parties 1 & 3 are jointly and severally liable to replace the defective Royal Enfield 350 bike with a new one of the same model or pay Rs 1,66,499/- (Rupees One Lakh Sixty Six Four Hundred and Ninety Nine Only) to the complainant and can take back the vehicle for which complainant shall execute relevant documents for transferring the ownership and also pay Rs. 25,000/- (Rupees Twenty Five Thousand Only) to the complainant for the mental agony suffered by the complainant and pay Rs.2500/- (Rupees Two Thousand Five Hundred Only) towards the cost of the proceedings within one month from the date of receipt of this order failing which the amount except cost carries an interest @ 9% per annum from the date of order till realization. 

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Commission, this the 28^th  day of February,  2024.

            Sd/-

P.V.JAYARAJAN                 : PRESIDENT 

          Sd/-

PREETHA G. NAIR              : MEMBER    

         Sd/-

                                                                 VIJU V.R                          : MEMBER

C.C. No. 159/2021

APPENDIX

  I         COMPLAINANT’S WITNESS:

II          COMPLAINANT’S DOCUMENTS:

III         OPPOSITE PARTY’S WITNESS:

IV        OPPOSITE PARTY’S DOCUMENTS:

        Sd/-

PRESIDENT