Smt. RENUKAMBA.C

        Member

1.       The complainant has brought this complaint before the  Commission on the basis of the following facts.

2.   The complainant has filed the complaint against the opposite party seeking a direction for to replace new bike of model Royal-Enfield –classi 350 gun metal grey BS without receiving additional amount and Rs.1,00,000/- towards mental agony and Rs.50,000/- towards cost of the litigation expenses.

3. The complainant is the RC owner of the Royal Enfield Classic 350gun Metal Grey BS IV Motorcycle, bearing Engine No. U3S5CIHL183591, Chassis No.ME3U3S5C1HL527361, Model 2017, The complainant purchased the same from 2^nd opposite party, the 1^st opposite party is the manufacturer of the said bike, the complainant is the customer under the opposite parties no.1 and 2. The complainant purchased the said new bike on 13.10.2017 for a total valuable consideration amount of Rs. 1,37,266/- vide invoice No.INV6669171800182 along with registration charges of Rs.27,977/- Before purchasing the said vehicle the complainant paid n advance amount of Rs.5,500/- vide booking No.BKN6669171800199. After purchasing the said bike, the 2^nd opposite party has adjusted the advance amount in their invoice. Only, the 2^nd opposite party has received Rs.5,500/-as advance amount from the complainant thereby the complainant questioned the same to the 2^nd opposite party, but the 2^nd opposite party has not made any effort to refund an additional amount of Rs.500/-. The 2^nd opposite party also collected an amount of Rs. 3,967/-towards insurance of the said bike and the 2^nd opposite party has also collected an amount of Rs. 2,250/- towards engine guard of the said bike. In total the complainant has paid amount of Rs. 1,76,960/-.

4.     The said bike to emitting heavy noise when the bike reaches speed of 60 to 70 Kms, the complainant informed the same to the 2^nd opposite party, to that affect the complainant send the vehicle to the service center of the 2^nd opposite party on 07.11.2017, but the 2^nd opposite party has not rectified the same properly. Again the complainant send the said vehicle on 18.11.2017 for rectify the said problem vide Job Card No.4485, till today the 2^nd opposite party have not rectified the same and till today, the said bike is in the service centre of 2^nd opposite party.

5.     The complainant repeatedly requested both of the opposite parties to rectify the said defect in the said bike, but the opposite parties neither made any efforts to rectify and to repair the said bike, due to manufacturing defect, the 2^nd opposite party have sold the said bike, in spite of 2^nd opposite party having know the said bike was with complaint. In order to enrich wrongful gain the 1^st opposite party manufactured defective vehicle and the 2^nd opposite party have sold the said bike in favour of the complainant and thereby both the opposite parties have also cheated the complainant. Thereby the opposite parties have made deficiency in service to the complainant.

6.     When the complainant made all efforts to the opposite parties to rectify the defective manufactured bike the said efforts are not fulfilled, thereby the opposite parties have rendering the deficiency in service to the complainant. The cause of action for this complaint arose on 13.10.2017 on the date of purchase of the said vehicle from the opposite parties on 07.11.2017 and 18.11.2017 on the date of lodging of the complaint for selling the defective goods to the complainant.

7. Wherefore the complainant humbly prays that this Hon’ble Forum be pleased to pass orders against the opposite parties, in favour of the complainant, directing the opposite parties to replace new bike of model Royal Enfield Classic 350gun Metal Grey BSIV Motorcycle without receiving additional amount form the complainant and also directing the opposite parties to pay the registration charges and insurance amount of the new vehicle which will be give to the complainant by the opposite parties and directing the opposite parties to pay Rs. 1,00,000/-towards cost of mental agony caused from the opposite parties to the complainant and directing the opposite parties to pay Rs.50,000/-towards cost of this litigation to the complainant and pass such other consequential reliefs that the Hon’ble Forum deems fit to grant in the circumstance of the case, by allowing this complaint, in the interest of justice and equity.

8.  The opposite party in the version has contended that the present complaint is liable to be dismissed as the complaint does not disclose any cause of action against the opposite party no.1. it is submitted that the entire case of the complainant is based on fictitious representations. The claims urged by the complainant are wholly mala fide, and the entire application and the claims made therein are based on misrepresentation of the acts of the respondents. It is evident that the complaint has been filed by the complainant with the sole intention of extorting money from the answering opposite party no.1

9.     Pursuant to the resolution passed by the Board of Directors, Eicher motors Limited on 14^th November 2017, a General power of attorney was issued in favour of Mr.Lalit Malik  Chief Financial Officer, under the seal of company on 21^st November , 2017 and Mr Lalit Malik was authorized to substitute one or more person(s)  as attorney. Thereof the executants Mr Lalit Malik has issued special power of attorney and authorized Mr. Ragvendra (Area Service Manager-Mysore) to pursue and contest the present case.

10.     That the complainant bought  a Royal Enfield Classic 350 on 13.10.2017 bearing chassis no ME3U3S5C1HL527361 for a total of Rs. 1,42,266.99/- from opposite party no.2 who is the authorized dealer of opposite party.1. AADITH MOTORS-HUNSUR.

11.     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 with in 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 and periodic maintenance services are availed in the respective period/Kilometre 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.

12.     Warranty guidelines also state that warranty does not apply to electrical equipments which are subjected to normal wear and tear. Therese warranty guidelines are also mentioned in the bikers owner manual which is provided to the customers at the time of the delivery of the bike. Moreover, 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 warranyt guidelines specifically state that the obligation of answering respondents 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.

13.     Moreover, 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 state that the obligation of respondent no.1 is only limited to repairing/replacing part(s) of the vehicle for free, only if the par (s), on examination is deemed to have a manufacturing defects.

14.     It is further submitted 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.

15.     It is submitted that there is no noise in the subject bike as contended by the complainant. The bike is in perfect condition and whenever the subject bike was brought for servicing, the 2^nd opposite party had service the bike with due care and all the complaints were attended to and rectified to the satisfaction of complainant. The outrageous and impracticable demands like that of replacing the subject bike with a new one, without any basis or valid ground, cannot be met with. The terms of warranty as well provide that only defective components shall be replaced by the complainant. The terms of warranty do not provide for complete replacement of vehicle.

16.     The complainant has miserably failed to disclose any cause of action as against the second opposite party. The complainant did not allege any allegation either in general or specific as regards to the nature of any manufacturing defect. There has been no manufacturing defect in the bike or any deficiency in service on part of the 1^st opposite party. Hence the complaint against the 1^st opposite party is frivolous and he compliant is not at all entitled for the any relief from the 1^st opposite party. The Hon’ble Forum has no jurisdiction to entertain and adjudicate the matter involved in the complaint. Hence the complaint is liable to be dismissed with cost.

17.     It is important to mention here that the complainant before filing of the present complaint, left his bike at the dealership of the opposite party no.1 and after filling the complainant, On 31.07.2018 complainant happily took the delivery of the bike, the bike of the complainant is in perfect roadworthy condition, continuously changing of reading of the odometer is evidence of the same.

18.      The 1^st opposite party further submit that the bike can  be subject to verification by an expert for any manufacturing defect. In the above matter there is no evidence on record furnished by the complainant to establish any manufacturing defect. It is a settled law to establish allegation of manufacturing defect, it is necessary to get the goods examined by an independent expert. The 1^st opposite party wish to rely on the following cases of National Commission which has upheld the necessity of expert evidence in accordance with 13(b) of consumer Protection Act. (National Commission in chandeshwar Kumar Vs Tata Engineeing Loco Motive Co. and another 2006(3)CPR402.

19.     The 1^st opposite party submits that in another case classic automobiles  vs Lila Nand Mishra and another I (2010) CPJ 235 it was held that the onus to prove manufacturing defect lies on the complainant.

20.     The onus is on the complainant to prove that there exist a manufacturing defect during the warranty period and that the manufacturing defect is such that is not reparable by replacement of components. It is imperative that the Hon’ble consumer Forum may appoint an indepened expert in view of the above in accordance with the procedure prescribe in section 13 of the consumer protection Act, 1986.

21.  In support of the complaint, complainant has filed his affidavit narrating the facts as alleged in the complaint and has produced certain documents. The opposite party no.2 has filed his affidavit and produced certain documents.
22. We have heard the arguments of learned advocates for the complainant and opposite parties and perused the entire records. And both parties have filed written arguments.

23.      The points that would arise for our consideration are as under:

1. Whether the complainant has proved that there is deficiency in service on the part of opposite party and complainant is entitled to the reliefs sought?

2. What order?

24.     Our findings on the aforesaid points are as follows:

Point No.1:- Partly in the affirmative

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

:: R E A S O N S ::

25.     Point No.1:- The fact that the complainant purchased vehicle Royal Enfield classic-350, gun metal grey BS IV motor Cycle. Bearing engine no.U3S5CIHLI83591, chasis no ME3U3S5CIHL527361, Model -2017, for Rs, 1,37,266/- dated 13.10.2017 from opposite party no.2 under Invoice No. INV6669171800182, along with registration charge of Rs.27,977/- is admitted by the opposite party no.1 and .2. These facts is not disputed by opposite party.

26.     The complainant motor bike was examined by the Yamaha Bikes dealer at Hunsur initially for almost 6 days and have opined that there is manufacturing  defects with the vehicle and have informed the complainant to get the issue resolved at the concerned Royal enfield dealer. The Yamaha bikes dealer Hunsur is not a authorized expert to give his opinion in respect of Royal Enfiled motor cycle. It is noticed that nowhere in the versions filed by opposite party no.1 and 2 have alleged about complainant getting his vehicle serviced or about its condition. Opposite party no.1 places responsibility on opposite party no.2 and opposite party no.2 blames opposite party no.1 both blame each other but not the complainant. Therefore, the cause for noise in the new bike is due to defect in the bike which is proved from the documents submitted by the complainant, for which opposite parties are responsible.

27.    The opposite parties statement of denial that there is noise from the complainant’s bike is false and without  bases because the complainant has not requested for refund of his money, but instead he has prayed for replacement of new bike. He has no intention of extorting money from the opposite parties, but he requires a bike with good condition, this shows that the complainant has not mislead the commission and the facts are hereby admitted true and correct. The complainant has also followed regular services in time but yet the issue was not resolved, therefore he has left the bike in the opposite parties showroom, this fact is admitted by the opposite parties which is nothing but deficiency in service on the part of opposite parties.

28.     In support of their arguments, opposite parties have quoted the following citations: replacement of vehicle or refund of entire price of vehicle.

1. 2017(1) CPR 643,(NC), Bhagwan Singh Vs R.K Photo wherein the Honorable National Consumer Disptues Redressal Commission, New Delhi, has observed that  the defects in mobile hand set was alleged which is not applicable to the present case where the issue is with regard to vehicle.

2.  2019(1) CPR 339(NC) Arun Kumar Pandey Major and another Vs Kamal agencies, in this case law the issue was raised regarding defective generator set not being repaired by the opponent, but in the present case the issue is with vehicle, hence this case law is not applicable.

3. (2018) CJ 738(NC), Hunanshu Maheshwari Vs Grand Nissan and another before honorable National Consumer Desputes Redressal Commission, in this case law, the order passed by the lower forum a was upheld, where the petitioner was entitled to repair of broken gear system of the car by respondents and also further awarded compensation of Rs. 50,000/- for mental and economical loss and Rs.5,000/- as cost of litigation and the revision petition filed for replacement of the vehicle was dismissed.

4. 2017(2)CPR 716(NC), Ajay Kumar Thakur Vs M/s Jaiswal Motors and ors before Honorable National Consumer dispute Redressal Commission, wherein it is held that in the absence of any  expert opinion that there is manufacturing defect in vehicle, petitioner is not entitled to such replacement of vehicle or refund of entire price of the vehicle”, in this case law the district Forum had awarded cost of repair and also compensation of Rs.25,000/-to the petitioner, the decision of the lower forum a was upheld by the National Commission and the petition was dismissed.

29.     The above case laws (c ) and (d) quoted above are relevant to this instant case,  as per case law (d) the onus to prove manufacturing defects lies on the complainant, that means the complainant has to furnish expert opinion to prove the manufacturing defect if the vehicle has been running for many Kms since purchase the petitioner failed to prove it, the case (d) was dismissed in the appeal. This case law (d) is relevant to the instant case where the newly purchased vehicle is producing noise on increasing speed from 60Km/hr to 70KM/he, since the vehicle his already been delivered and registered in the name of the complainant, the complainant is partly entitled for the reliefs. Since, the vehicle delivered is a new bike and the vehicle mentioned in case law(d) is old vehicle, the complainant here is entitled to compensation.

30.     Under these circumstances the complainant has established deficiency in service on the part of opposite parties. Therefore, opposite parties are liable to effect the repair/set right the defect in the engine of new Royal Enfield motor bike and to pay compensation of Rs. 10,000/- and Rs.5,000/-towards litigation expenses. Accordingly our findings point no.1 is answered partly in affirmative.

31.    Point no.2:- In view of the above observations, we proceed to pass the following.

                                                                              :: ORDER ::

1. The complaint is allowed in part.
2. The opposite parties jointly and severally liable to effect the repair/ set right the defect in the engine of new Royal Enfield motor bike of the complainant within two months from the date of this order.
3. Further the opposite parties shall pay compensation of Rs.10,000/- within two months from the date of this order. And failing which the amount will carry interest at the rate of 10% pa.
4. Also the opposite parties to pay Rs.5,000/-towards cost of the proceedings

5. Furnish the copy of order to both parties at free of cost.