The Complainant has filed this case against the O.P’s under Section 12 of the Consumer Protection Act, 1986 and praying for following Order/ Relief :-

1. Direction against the O.P’s to replacement for the bike of the Complainant.
2. Direction against the O.P’s to pay / refund a sum of Rs. 2,01,728/- (Rupees Two Lac One Thousand Seven Hundred Twenty Eight Only) to the Complainant along with interest @ 15 % p.a. till date.
3. Direction against the O.P.’s to pay a sum of Rs. 40,000/- (Rupees Forty Thousand Only) to the complainant which was paid by the Complainant to the O.P. as service charges.
4. Direction against the OP’s. to pay sum of Rs. 1,00,000/- ( Rupees One Lac Only) to the complainant for mental harassment and litigation expenses.              
5. Any other relief or reliefs which is complainant entitled.

          BRIEF FACTS OF THE COMPLAINT

1. The Complainant is a law abiding citizen of India and O.P. No. 1 is a Limited Company engaged in sell & manufacture of Motor Bikes in different parts of India and having several branches and a O.P. No. 2 is a dealer of O.P. No. 1 and thus the O.P. No. 1 has control over the O.P. No. 2
2. That on 26.02.2020 the Complainant purchased a Royal Enfield, Vide Model No. Classic 350 EFI Stealth Black, Engine No. U3S5F1LB239345, Chassis No. ME3U3S5F2LB875245, Invoice No. INVC297192000619 dated 26.02.2020 of Rs. 1,81,728/- ( Rupees One Lac Eighty One Thousand Seven Hundred Twenty Eight Only) from the Durga Motors, Jalpaiguri, and the Complainant had paid a sum of Rs. 1,80,000/- ( Rupees One Lac Eighty Thousand Only) to the O.P. No. 2 by issuing cheque bearing no. 000135 dt. 27.02.2020 drawn on Bandhan Bank, Jalpaiguri and remaining amount along with RSA, Engine warranty extension for 3 years and for purchasing insurance policy documents he paid a sum of Rs. 20,000/- (Rupees Twenty Thousand Only) to the O.P. No. 2 (Annexure- 1)
3. That since 1^st free servicing, the Complainant has been facing several issues i.e. Rear Suspension RH Leake, front side noise, horn, speedo meter not work properly and engine oil leakage etc which were reported to the O.P.’s. by the Complainant trough E-mail, over telephone and personal visit with the O.P’s./ they assured the Complainant that steps would be taken very soon to resolve his troubles. But the problems going on till date even after servicing in a numbers of times of his bike within its warranty period and they also extracted money from the Complainant during free servicing within warranty period and when the Complainant contacted with the O.P. No. 2 for  the problems of the bike they tried to ignore the problems and did not tackle the matter seriously (Email Communication as Annexure-B Collectively) .
4. That the bike of the Complainant was still under warranty period and despite various free servicing by the O.P.  No. 2. Problems has not been solved as the same is under manufacturing defect ( The Photocopies of the services bill and job cards are Annexure-C Collectively).
5. That since the O.P. have failed to keep their promise and the complainant had served a legal demand notice dt. 19.02.2022 through his Ld. Advocate vide Speed Post Receipt dt. 21.02.2022 to the O.P’s. which were duly served on the O.P’s. (Annexure-D Collectively).
6. That the cause of action of this case arose on 26.06.2020 and on all other subsequent dates which is continuing.

In order to prove the case the complainant has filed the following documents:-

1. Photocopy of Purchased Invoice.
2. Photocopy of E-mail Communication with Opposite Party.
3. Photocopy of service bills and job cards for servicing.
4. Photocopy of legal / demand notice dated 19.02.2022. 

Notice was issued from this Commission which was duly served upon the O.P’s. On receipt of Notice the O.P’s have appeared before this Commission through Vokalatnama, denied  all the material allegations of the Complainant and has stated that the instant case is not maintainable neither in its facts nor under the law / there is no cause of action at all arose for filing of the instant case against the O.P. No. 2 and there is no manufacturing defects with the Bike in question which was purchased by the complainant and defects which are disclosed by the Complainant in the Complaint petition are all minor natural defects  of the Bike which have duly been cured by the O.P. No. 2. The O.P. No. 2 has further stated that the statement made in the Complaint is absolutely hyper-technical and running mechanical defect which do not come under the purview of inherent manufacturing defect , nor there is any opinion of any expert and the Complainant has filed this case by suppressing the actual fact and the Complainant has filed the instant case deriving wrongful gain causing wrongful loss to the O.P. and the Complainant is not entitled to get any such relief as the Bike was using by the Complainant on a regular basis without any stop otherwise it would not have run thousands of Kilometers as indicated in the job cards and if there was any inherent manufacturing defect infested with the bike the same could not run 19,120 km as on  12.01.2022 which would go to suggest that the bike  was road worthy and free from any inherent manufacturing defect coupled with the fact that this O.P. No. 2 was not in deficient while rendering services to the Complainant and thereby the Complainant is not maintainable.

The O.P. No. 2 has also stated in the Written Version that the Complainant case is speculative, vexatious and mala-fide and there was no deficiency in service on the part of O.P. and the statement made in Paragraph No. 1 of the Complaint petition is not admitted by the O.P. No.2 / statement made in Paragraph No. 2 of the Complaint petition the O.P. No. 2 has stated that the O.P. No. 1 is a reputed Company engages in sell & manufacturing of Motor Bikes which has also been providing service to different buyers in any part of India and the O.P. No. 2 is authorized dealer having service Centre. The O.P. No. 2 has further stated that the statement made in Paragraph No. 3 of the Complaint petition is matter of record / Paragraph No. 3 are not correct and the contents made in Paragraph No. 3 of the complaint  are the natural running minor defects during regular services and the parts were replaced free of cost. 

It is further stated by the O.P. No. 2 in the Written Version that the first free servicing was made on 21.03.2020 after covering 520 kms but no complaint regarding the bike was disclosed by the Complainant and after free service the bike was delivered to the satisfaction of the Complainant / second servicing was made on 14.05.2020 after covering 1709 kms but  no complaint relating to the bike was made and the bike was delivered to the Complainant without receiving any extra charge. O.P. No. 2 has further stated that on 17.06.2020 the Complainant after covering 2,594 kms made a paid service at the service Centre of the O.P. No. 2 having no complaints but only for washing the bike including change of air filter / on 27.06.2020 the Complainant after covering 2992 kms again took the bike for paid service not with the O.P. No. 2 but the other authorized dealer at Siliguri for liquid gun semi synthetic and oil filter with 0 ring kit being the running repairs as desires by the Complainant / on 01.09.2020 after covering 5085 kms another paid service was done by the Complainant at the service Centre of the O.P. No. 2 when the fuel tank was replaced which got scratched while providing 2^nd free servicing to the Complainant and after the fuel tank  got scratched during 2^nd free servicing, the O.P. No-2 repaired the same by the adjusting color but the Complainant was not satisfied by the work done by the O.P. No. 2 and at the desire of the Complainant  the O.P. No. 2 replaced the entire fuel tank with a new one free of cost and no complaint was received from the Complainant. It is also stated in the Written Version that on 20.10.2020 after covering 6448 kms the Complainant again took the bike for paid service with minor regular works including repairing of the horn by the O.P. No. 2 against payment as horn is covered under certain  conditions of warranty which the Complainant failed to fulfill / on 25.11.2020 after covering 7491 kms 3^rd free servicing was done without any complaint and on 25.12.2020 after covering 8860 kms the Complainant visited the O.P. No. 2 with a complaint for suspension RH leakage and front side noise when the O.P. No. 2 changed the rear suspension free of cost and same was under warranty but no front side noise was detected by the technicians of the O.P. No. 2 and the bike was delivered to the satisfaction of the Complainant / on 19.01.2021 after covering 9762 kms the Complainant took the bike with the O.P. No. 2 for paid service without having any complaint / on 20.02.2021 after running 11,146 kms 4^th free servicing was done but no complaint was made by the Complainant.

The O.P. No. 2 has further stated in the Written Version that on 12.03.2021 after covering 11,866 kms the Complainant took the bike with the O.P. No. 2 and another paid service was done but complaint was received from the Complainant of sound in chain socket which was not covered under warranty / on 17.06.2021 another paid service was done by the Complainant with the O.P. No. 1 / on 11.09.2021 after running of 16,226 kms another paid service was done by the O.P. No. 2 and the bike was delivered to the satisfaction of the Complainant / on 27.11.2021 after covering 19,349 kms the paid service was done by the Complainant with O.P. No. 2 but the Complainant made no complaint / on 05.12.2021 after 19,6000kms running of the bike another paid service was done / on 16.12.2021 after running of 19,670 kms the Complainant visited to the O.P. No. 2 with a complaint of damaged master cylinder which was change against payment as the same occurred due to the latches of the Complainant / on 12.01.2022 the Complainant visited the O.P’s. with a complaint light off while running being a minor complaint and the said issue was resolved by the O.P. No. 2. O.P. No. 2 has further stated that from the said services being made by the Complainant against the O.P. No. 2 it is clear that there was / is no major defects infested with the Motor Bike which is claimed by the Complainant and there was no deficiency in service either on the part of the O.P. NO. 2 or O.P. No. 1 as there was no manufacturing defects or major defects and last paid service was done on 12.01.2022 with minor complaint which was duly solved. The O.P. No. 2 requested the Complainant to attend the workshop of the O.P. No. 2 along with the bike for inspection and examination by the expert for rectifying or resolving the concern involving the bike but when the technician reached at the service Centre of the O.P. No. 2 pursuance to E-mail sent to the Complainant he deliberately did not turn up to the work shop of the O.P. No. 2 , nor did make any co-operation with the expert technician of the O.P. No. 2.

The O.P. No. 2 has further stated that there is no cause of action for filing of the instant case on any dates and the Complainant has filed this case with mala-fide intention to extort money / for wrongful gain for himself and causing wrongful loss to the O.P. No. 2 and thereby the case is liable to be dismissed.

In support of the Written Version the O.P. No. 2 files the following documents:-

1. Job Card dated- 21.03.2020 after covering 520 kms shows no complaint, Marked as annexure-1.
2. Job Card dated- 14.05.2020 after covering 1709 kms shows no complaint, Marked as annexure-2.
3. Job Card dated- 17.06.2020 after covering 2594 kms shows no complaint, Marked as annexure-3.
4. Job Card dated- 27.06.2020 after covering 2992 kms shows no complaint, Marked as annexure-4.
5. Job Card dated- 01.09.2020 after covering 5085 kms shows no complaint, Marked as annexure-5.
6. Job Card dated- 20.10.2020 after covering 6448 kms  shows minor works. Marked as annexure-6.
7. Job Card dated- 25.11.2020 after covering 7491 kms shows no complaint. Marked as annexure-7. (2 pages)
8. Job Card dated- 25.12.2020 after covering 8860 kms with a  complaint Suspension RH Leakage and Front side noise (1^st Complaint) which has been resolved free of cost. Marked as annexure-8. (2 pages)
9. Job Card dated- 19.01.2021 after covering 9762 kms shows no complaint or repeat complaint. Marked as annexure-9. (2 pages)
10. Job Card dated- 20.02.2021 after covering 11146 kms shows no complaint or repeat complaint. Marked as annexure-10. (2 pages)
11. Job Card dated- 12.03.2021 after covering 11866 kms with a complaint sound in chain socket being normal for a running vehicle. Marked as Annexure-11. (2 pages).
12. Job Card dated- 17.06.2021 after covering 13925 kms with a minor complaint for a running bike marked as Annexure 12 (2 pages)
13. Job Card dated- 11.09.2021 after covering 16236 kms with some minor complaints marked as Annexure 13 (2 pages).
14. Job Card dated- 27.11.2021 after covering 19549 kms with a complaint in speedometer, no repeat complaint marked as Annexure 14 (2 pages)
15. Job Card dated- 05.12.2021 after covering 19600 kms with a complaint in cable which was changed, no repeat complaint. Marked as Annexure 15 (2 pages).
16. Job Card dated- 16.12.2021 after covering 19670 kms with a complaint damaged master cylinder due to fault on the part of the complainant. Marked as Annexure 16 (2 pages)
17. Job Card dated- 12.01.2022 with a minor complaint i.e light off while running of the bike, no repeat complaint, Marked as Annexure 17 (2 pages)
18. Request to the complainant through email by the OP no. 2 dated 26.02.2022 as Annexure 18.

Having heard, the Ld. Advocate of both the parties and on perusal of the Complaint, Written Version and documents of the parties the following points to be decided by this Commission.

   Points for consideration :-

1. Whether the Complainant is a Consumer?
2. Whether the case is maintainable under the Consumer Protection Act?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
4. Whether the Complainant is entitled for the relief sought?        

                   Decision with reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

Complainant was given liberty to produce his evidence and in order to prove the case the Complainant himself has filed Written Version in the form of an affidavit. In his evidence the Complainant has specifically corroborated the contents of the Complainant and has stated on which day he purchase the bike and on which day he took the bike with the O.P. No. 2 for servicing   the same. He also corroborated the entire facts which he has stated for his Written Complaint.

At the time of argument Ld. Advocate of the Complainant argued that, they have already filed Brief Notes Of Arguments where they categorically stated the entire facts and the complainant has been able to prove this case against the O.P’s. and thereby the Complainant is entitled to get relief as prayed for.

Ld. Advocate of the Complainant has further argued that the Complainant has already filed several documents in support its case and Complainant has been able to prove the fact that there is / was manufacturing defects in the bike in question which the O.P. No. 2 has not been able to resolve since the date of its purchase.

To falsify the case of the Complainant the O.P. No. 2 has adduced Evidence by filing Written Deposition in the form of an Affidavit.  Ld Advocate of the O.P. No. 2 during argument has stated that they have already filed Brief Notes of Argument and stated that the Complainant has filed this case on some false allegation. The further argument of the O.P. No. 2 is that the Complainant with ulterior motive to injure the reputation to the O.P. No. 2 has filed this case to extort money without establishing in manufacturing defects in the bike knowing fully well aware that there is/was no deficiency in rendering services to the Complainant. He also argued that the bike in question is still road worthy and in a running condition having no such defects in it much less for manufacturing defects and the defects which are minor natural defects of the bike which had duly been cured by the O.P. No. 2 and the alleged defects which is stated by the Complainant in his complaint as well as in his Evidence is absolutely hyper-technical and running mechanical defects which do not come under the purview of inherent manufacturing defects and the Complainant did not file any opinion of any expert which is very much necessary for adjudication and determination of inherent manufacturing defects of the bike Vide decisions of the Hon’ble Apex Court in this regard. Ld. Advocate of the O.P. No. 2 further argued that the bike which the Complainant has been using on a regular basis without any stop would not have run thousand kilometers as indicated in the job cards and had there any inherent manufacturing defects infested with the bike the same could not run 19,120 kms as on 12.01.2022 which would go to suggest that the bike was road worthy condition and free from of any inherent manufacturing defects. Ld. Advocate of the O.P. No. 2 further argued that the Complainant has filed Questionnaires to the O.P. No. 2 and the O.P. No. 2 gave reply stated categorically that the bike was not kept with them for any repairing of defects, the same was kept for color adjustment of the fuel tank which got scratched during the time of providing 2^nd free servicing by the O.P. No. 2.

               Ld. Advocate of the O.P. No. 1 has also files Brief Notes of           argument and has stated that the Complainant has filed this case on      some false allegation to extort exes amount of compensation from the O.P’s. for causing wrongful loss to them and the allegation of the Complainant is speculative mala-fide and there was no manufacturing defects of the Motor Bike and alleged by the Complainant and all the Complaint so made by the Complainant during  servicing had already been resolved and on full satisfaction of the Complainant he took delivery of bike on each and every occasion  Ld. Advocate of the O.P’s. have referred decision of  Maruti Udyog Limited vs Hasmukh Lakshmichand disposed off on 26 May, 2009 by the Hon’ble N.C.D.R.C. and also referred another decision of Sukhvinder Singh Vs Classic Automobile & Another     Disposed off on 6/11/2012  by the Hon’ble N.C.D.R.C.  and decision of Classic Automobiles VS Lilanand Mishra and Another I (2010) CPJ 235 NC.

                           Having heard the Ld. Advocate of both the side and on perusal of        the evidence of the parties as well as documents filed by them, it is           admitted fact by both the parties that, the complainant had purchased a         bike on 26.02.2020 from the OP No. 2 by making payment of Rs.            1,81,728/- by issuing a cheque bearing no. 000135 dated 27.02.2020 and   also paid Rs. 20,000/- towards RSA Engine Warranty extension for 03       years and insurance purpose. It is also admitted fact by both the parties         that, the complainant took the bike on several occasion to the OP No. 2 for servicing the same and on each and every occasion the OP No. 2        resolved the problem so infested by the complainant. It is not denied by             the complainant that, he took the bike with the OP No. 2 for servicing the same on       21.03.2020,14.05.2020,17.06.2020,27.06.2020,01.09.2020,             20.10.2020, 25.11.2020, 25.12.2020, 19.01.2021, 20.02.2021,             12.03.2021,17.06.2021, 11.09.2021, 27.11.2021, 05.12.2021, 16.122021, 12.01.2022. It is also admitted fact that, on each and every occasion job card was issued by the OP No 2 wherefrom it is proved that, the bike was on running condition from the date of purchase of the same till last servicing on 12.01.2022. From the job card which has been filed on the side of the OP No. 2 as Annexure 16 it reveals that, on that day after covering 19,670 km the complainant took the bike for servicing the same. It is needless to mention here that, had there been any manufacturing defect infested with the bike in question obviously it would not have run 19,670 km. From the said job-card dated 16.12.2021 it is proved that, the bike in question was on road worthy condition.

                           Ld. Advocate of the complainant by filing the instant case claiming as if there was a manufacturing defect in the bike and that’s why the complainant was compelled to take the bike with the OP No. 2 for    servicing. But in support of the contention, Ld. Advocate of the            complainant did not file any expert report to show that the bike which was delivered to the complainant was having manufacturing defect since        the date of delivery of the same. On the other hand, Ld. Advocate of the OP No. 2 by referring several decision claims that, there was no manufacturing defects in the bike in question and there was no deficiency in service on the part of the OPs and he praying for dismissal of the case.  

                           It is settled provisions of law that the defects alleged by the             complainant could not be determined without getting any opinion from      an expert and the complainant who alleged the manufacturing defect     must have to prove the defect before this Commission.

                           From the job card issued on 16.12.2021 it shows that, after      running of 19,670 kms it is proved that, the bike in question is in running        condition at the time of filing of this case and is being used by the complainant on regular basis and thereby it can safely be presumed that,          there was no manufacturing defect in the bike and had there been any      such defect the bike could not have run 19,670 kms within 1 years from           the date of purchase.

                           It is also settled provisions of law that, in this type of case report of   the expert is essential or some other evidence showing manufacturing    defect should have been adduced by the complainant and mere fact of             that, the bike was taken to the service station of the OP No. 2 for several     occasions does not ipso facto proved the manufacturing defect and in a       case where allegation is only of manufacturing defect which is very much     different from the simple defect in that case the person who is claiming           manufacturing defect must have to prove that the vehicle in question is            having manufacturing defect.

                           The complainant has filed this case against the OPs and praying for             replacement of the bike of the complainant and that’s why the             complainant as to prove the case by producing cogent, credible and adequate evidence supported by opinion of any expert automobile/ mechanical engineer to prove that, the vehicle suffered from inherent manufacturing defect and onus of proof is lying on the complainant.

                           Considering all, we are of the view that, the complainant has failed    to prove the case to the effect that, there was any manufacturing defect             on the bike by producing valid, cogent and credible evidence.

   Hence, it is therefore,

                                                    O R D E R E D

That the instant Consumer Case being in No. 07/2022 is hereby dismissed on contest but without any cost. 

Let a copy of this Judgement be given to the parties free of cost.