BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  :  MEMBER

C.C. No. 251/2012 Filed on 01.08.2012

ORDER DATED: 15.03.2018

Complainant:

Shibukumar. R, 7/356, Shibu Vihar, Varkala P.O, Thiruvananthapuram-695141.

                                    (Party in person)                                  

Opposite parties:

1. The Chief Executive Officer, Royal Enfield, Thiruvattiyoor High Road, Thiruvattiyoor, Chennai-600 019.

2. The General Manager, Marikar Motors Ltd., Royal Enfield, Thiruvananthapuram.

3. Service Manager, Marikar Motors Ltd., Royal Enfield, Thiruvananthapuram.

          (By Adv. G.S. Kalkura)

This case having been heard on 31.01.2018, the Forum on 15.03.2018 delivered the following:

ORDER

SRI. P. SUDHIR:  PRESIDENT

Complainant’s case is that complainant booked one Enfield Bullet Motor Cycle Standard on 01.06.2011 at 2^nd & 3^rd opposite parties and opposite parties had promised to deliver it within 7 days if full payment is made and the complainant remitted full amount on 15.06.2011 by CR/735 at 2^nd & 3^rd opposite parties, but the same was delivered on 02.08.2011.  The registered number of the vehicle is KL-16-G-8445 and Chassis Number: ME3UK5C0BG083273 and Engine Number U3K5C0BG083273.  The warranty period is 12 months from the date of delivery and 2^nd and 3^rd opposite parties had promised for giving replacement warranty of parts and the services without delay.  On 23.08.2011 complainant registered a complaint regarding the break down on vehicle on different occasions and the starting trouble and also the non-functioning of break system.  Believing opposite parties complainant handed over the vehicle to 2^nd and 3^rd opposite parties.  3 to 4 days the defects were rectified and returned to the complainant.  Till now the vehicles run only below 3000 km due to mechanical trouble and latches of opposite parties.  On 02.11.2011 the complainant again registered a complaint regarding break down, shock absorber and starting trouble and handed over the vehicle to opposite parties.  The vehicle was returned on 04.11.2011 claiming the defects were cured.  And when complainant drove the said vehicle for 10 km the vehicle stopped in the main road on 07.11.2011.  Immediately complainant informed the matter to 2^nd and 3^rd opposite parties through telephone but no steps taken by the 2^nd and 3^rd opposite parties for curing the said defects within the warranty period and free service period.  Though 2^nd and 3^rd opposite parties made no response the complainant approached 1^st opposite party through telephone messages and e-mails.  Then the 1^st opposite party contacted the complainant and promised the defects will be cured immediately without delay.  But till now the said defects will not cured by opposite parties.  Due to the enormous delay in curing the defects by opposite parties caused very much difficulties and expenses, losses mental agony etc. to the complainant and these are due to non-use of the said vehicle and also money losses by way of procuring additional transportation etc.  The long non-use of the said vehicle also made so many damages to the vehicle itself.  These difficulties occurred due to deficiency of service, latches of service of opposite parties.  The opposite parties made so many offerings to send service personnel to the complainant’s residence where the vehicle is kept dead.  But no service personnel reached to take the vehicle to opposite parties’ service centre.  All the promises made by opposite parties had become useless.  The said acts and latches and conduct of opposite parties amount to gross unfair trade practice and gross deficiency of service.  Hence complainant approached this Forum for replacement/refund and compensation.

Notice sent to opposite parties and opposite parties 1 to 3 appeared and filed version.  As per the version of opposite parties the contention taken is that the opposite parties have been arrayed in their official capacity.  The manufacturing and dealer company has not been made parties to the litigation, without whose presence the complaint cannot be fully, finally and effectively adjudicated upon.  The complainant had taken the delivery of vehicle of his own free choice and will knowing fully well of the quality and performance of vehicle and efficiency of the vehicle are to his satisfaction.  The allegation that the opposite party had promised to deliver the vehicle within 7 days if full payment is made is not fully correct and is denied.  The complainant had of his own choice remitted the full payment on 15.06.2011 claiming that he will be out of India and therefore he will not be in a position to remit the payment and take delivery while he is outside India.  Thus the complainant had of his own choice remitted the amount.  There has been no compulsion or insistence or demand or assurance to the complainant to remit the entire amount and to give delivery of the vehicle.  At the time of taking delivery the complainant was handed over the owner’s manual, accessories and kits and was advised to strictly follow the instructions in the service manual in order to get maximum efficiency and performance of the vehicle.  Complainant agreed this advice and undertook to follow.  The complainant had brought the vehicle on 23.08.2011 when the vehicle had covered a distance of 550 km for carrying out first free service.  No major complaint regarding the performance of vehicle was complained except the normal repairs and due to the usage of vehicle and wear and tear.  The first service was carried out and the vehicle was delivered on the same day.  The complainant took delivery of the vehicle on being, convinced and satisfied with the services so being carried out by the opposite parties.  The vehicle was taken delivery after carrying out first free service on the same day of entrusting the vehicle i.e 23.08.2011.   The vehicle did not suffer from any mechanical trouble.  There was no latches from the opposite parties.  The complainant had on 02.11.2011 brought the vehicle to the workshop of the opposite parties 2 and 3 to carry out second free service as it has covered a distance of 2120 km with complaints including clutch, lever adjustment etc.  The second service was carried out all the complaints were attended to and the vehicle was handed over on 04.11.2011.  The allegation that when the vehicle had driven for 10 km the vehicle had stopped on 07.11.2011 are baseless.  The allegation that the opposite party though was informed no steps were taken for curing the defects within the warranty and free service are utter falsehood baseless and denied.  The complainant refused to produce the vehicle to the service centre in order to ascertain and verify the cause of the complaint in the vehicle.  The complainant refused to co-operate and deliberately and willfully abstained from producing the vehicle to the authorized service centre for inspection and rectification, despite issuance of various registered letters and reminders as well as e-mails.  The opposite parties in order to maintain goodwill and customer relationship had issued a letter informing the complainant that the technicians of the dealer and territory Manager (service) of this opposite party would personally visit the complainant’s residence at 06.12.2012 at 3 pm for inspection of the vehicle and if required to take the vehicle to the garage for the rectification.  As per the terms of warranty though there was no obligation to take the vehicle to the garage just for the purpose of maintaining goodwill and customer relationship the said letter was issued and it was received by complainant on 18.06.2012.  The complainant had not only requested to hand over the vehicle and to co-operate with the opposite party but also without prejudice or right to contest the claim.  In accordance with the intimation of the intended visit of the technicians at the complainant’s residence, the technicians of the dealer as well as Territory Manager of the first party visited the complainant’s residence on 22.06.2012 at 3 pm however the complainant refused to cooperate with the opposite party and even refused to permit the above personnel to have a preliminary check on the vehicle.  The complainant was adamant with his unlawful demand and insisted the opposite parties to first concede to his demands and then later if required will hand over the vehicle.  The opposite party had never refused to carry out any service of the complainant’s vehicle and even now is prepared to render the services subject to the terms and conditions of the owner’s manual.  The complainant be directed to produce the vehicle to the opposite party workshop within the time specified by this Forum for carrying out the services as per owner’s manual.  In the event of the complainant failing to comply with such direction, the complaint be dismissed holding that the complainant is trying to take advantage of his own latches and negligence and to get unlawful enrichment.  The opposite party in view of the refusal by the complainant to have the vehicle inspected by service personnel had on 26.06.2012 issued a registered letter detailing the true facts.  In response to the said letter the complainant through his counsel issued a notice on 12.07.2012.  the same was replied on 25.07.2012 wherein the true facts were narrated and once again the complainant was requested to produce the vehicle at garage of the opposite party on 03.08.2012 preferably at 10 am with prior intimation and relevant records.  The complainant did not choose to accept the request of the opposite party and instead had filed this complaint.  The complaint is filed only to harass and vex this opposite party and if possible to make unlawful and unjust enrichment.  The complainant is not entitled to any of the reliefs stated in the complaint. 

 Issues:

1. Whether there is deficiency of service or unfair trade practice on the part of opposite parties?
2. Whether the complainant is entitled for the reliefs sought for?

Issues (i) & (ii):- Complainant filed chief examination affidavit and examined as PW1.  Exts. P1 to P9 marked and commission report marked as Ext. C1.  PW1 cross examined by the opposite parties.  Opposite parties 2 & 3 filed chief and no documents marked. 

In this case complainant has taken an expert commission and as per Ext. C1 report, though the expert has gone beyond his duty, the expert has reported that “It is a matter of fact that there is no ready delivery for the Enfield Bullet motor cycle and there is a lead time, which varies according to season.  Normally the full amount will be remitted once the vehicle is ready with the dealer.  Here the petitioner has remitted the full amount on 15.06.2011 for the delivery of the vehicle and the vehicle was delivered on 02.08.2011 after temporary registration.  There was no evidence to prove whether the petitioner has voluntarily remitted the full amount in advance or there was an instruction from the dealer to do so.  An unusual delay of 8 days were there to do the first free service of the vehicle as the seat assembly was not able to procure in time from the manufacturer under warranty.  During the second service, all the works were attended except the replacement of the common key set, shock absorber and the front brake switch.  The parts were found requested on the job card under warranty replacement.  As per the statement of the petitioner, his vehicle had a break down on 07.11.2011 near his residence (i.e two days after the second free service, which is about 60 kms from Trivandrum service centre.  The service persons could not attend the breakdown call in time even after repeated calls and the petitioner was not willing to take the vehicle to the service centre to get it serviced immediately as the vehicle was under warranty.  The petitioner was adamant on his stand and later by the communication with the opposite parties, the relationship has worsened.  At the time of inspection it was noticed that the reason for the breakdown was due to the slip of the carburetor hose from the intake manifold.  The faulty common key set cannot cause such a break down.  No other major unserviceable manufacturing issues were there for the vehicle at the time of inspection.  It appears that the ‘ego’ between the petitioner and the service centre authorities has lead to the passive killing of a proven and roadworthy vehicle.  He has not allowed the service team to inspect the vehicle at his residence.  In the later stages, the petitioner was also not much interested to rectify the defect on the vehicle, but was arguing for replacement of the vehicle and more compensation from the opposite parties.  This is evidence from a reply mail dated 31.03.2012 by Mr. Lakshmanan, Branch manager, Marikar Motors, he has offered full rectification for the vehicle and an amount of Rs. 1,800/- to the petitioner towards the interest of the money that they have hold before the delivery of the vehicle and three months extended warranty after the expiry of the normal warranty.  There was an unusual delay in procuring the parts from the manufacturer.  The defective common key set, shock absorber and the front brake switch could not be replaced during the second service.  The problem of the TCI could not be identified in time and the vehicle got stopped many times during long time, which has caused inconvenience to the petitioner.  The vehicle was not having any manufacturing defect except the defect noticed by the company on the common key set.  But the reason for the breakdown was not because of any manufacturing defect.  The problems seen on the vehicle at the time of inspection like defects noticed on the spark plug, carburetor, brake switch, TCI etc were all serviceable and can happen to any vehicle over a period of time.  The vehicle is still road worthy and can be easily refurbished and brought to showroom condition by replacing the identified defective parts and doing the chromium plating of rusted components and repainting”.  Though there is no manufacturing defect as per the opinion of the expert, the report mentioned that there is deficiency of service and unfair trade practice on the part of opposite parties.  There is nothing to disbelieve the expert.  Hence we are of the opinion that opposite parties are jointly and severally liable to refund Rs. 91,052/- the price of the Motor Cycle and to pay compensation of Rs. 25,000/- for the mental agony suffered by the complainant and Rs. 5,000/- as cost of the proceedings.  Complainant is directed to return the Motor Cycle to opposite parties. 

In the result, complaint is allowed.  Opposite parties are jointly and severally liable to refund Rs. 91,052/- (Rupees Ninety One Thousand and Fifty Two only) the price of the Motor Cycle and to pay compensation of Rs. 25,000/- (Rupees Twenty Five Thousand only) for the mental agony suffered by the complainant and Rs. 5,000/- (Rupees Five Thousand only) as cost of the proceedings.  Complainant is directed to return the Motor Cycle to opposite parties.  Opposite parties shall comply the order within one month from the date of receipt of this order failing which Rs. 1,16,052/- (Rs. 91,052/- + Rs. 25,000/-) shall carry interest @ 9% from the date of default.   

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 Forum, this the 15^th day of March 2018.

         Sd/-

P.SUDHIR                             : PRESIDENT

         Sd/-

R. SATHI                               : MEMBER

          Sd/-

LIJU B. NAIR                        : MEMBER

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C.C. No. 251/2012

APPENDIX

  I      COMPLAINANT’S WITNESS:

          PW1  - Shibukumar. R

 II      COMPLAINANT’S DOCUMENTS:

P1     - Copy of cash receipts voucher dated 01.06.2011

P2     - Copy of cash receipts voucher dated 15.06.2011

P3     - Copy of mail dated 17.01.2012

P4     - Copy of mail dated 04.04.2012

P5     - Copy of second page of Ext. P4 mail

P6     - Copy of Personal and vehicle information

P7     - Copy of R.C Book

P8     - Copy of acknowledgment card

P9     - Copy of legal notice dated 12.07.2012

III      OPPOSITE PARTY’S WITNESS:

                             NIL

 IV     OPPOSITE PARTY’S DOCUMENTS:

                             NIL

  V     COURT EXHIBIT:

          C1     - Commission Report

                                                                                                      Sd/-

PRESIDENT

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