DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO.133/2016
Date of Filing: Date of Admission Date of Disposal:
26.02.2016 04.03.2016 26.09.2016
Complainant = Vs. = O.P.
Sri Sandip Sar, 1. The Director/ Manager
S/o. Late Ajay Sar, Royal Enfield, an unit of
Vill-Banr, P.O. Routhpur, of Eicher Motors Ltd,
P.S. Dhaniakhl, Thirurottiyur High Road,
Dist- Hooghly. Chennai- 600019.
2. The Manager,
Kolkata Byke Zone,
Mohua Apartment, VIP Road,
Teghoria, P.S. Baguiati,
Kolkata- 700157.
3. The Manager,
Kolkata Byke Zone,
Workshop Ataghara,
Phultala, P.S. Dashdron,
Kolkata-700136.
P R E S E N T :-Sri Rabideb Mukhopadhyay………President-in-Charge :- Smt. Jhunu Prasad ….…………………….Member
J U D G E M E N T
The fact of the case, in brief is that the O.P. No.2 is authorized dealer of O.P. No.1 and is thereby responsible for any replacement or repairmen of the purchased articles as per the terms and conditions agreed by and between the complainant and the O.P. No.2.
The complainant stated that since purchase of the said Motor cycle from the O.P. No.2 the complainant noticed four defects in the motor cycle which are as follows:-
- Bad sound from the engine.
- Engine gets extra-hitted.
- In case motor cycle runs above 80 km/hour cycle gets heavily shaken.
- Gear and clutch of the motor cycle are not in proper working condition.
The complainant further stated that the complainant requested the O.P to do the needful for either replacement of the vehicle or necessary repairmen from their workshop situated at Ataghara, Phultala and Kolkata- 700136. Despite hearing information of the said defective condition of the said motor cycle O.Ps did nothing.
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The complainant also stated that the O.P No.2 received an amount of Rs. 1,40,400/- from the complainant against the cost of the said motor cycle vide invoice No. INV4313141500 986 dated 11.03.15 and the said O.P. No.2 also received an amount of Rs. 1785.50 from the complainant against following accessories namely:-
a). 594715/A Disk Pad.
b). 390066 Eng Oil 15W50.
c) 500613 /A Oil filter element
d) 570108/F Torsmn spring
e) 112078/B Shim Spindle
f) 570416/1 Gasket
g) 594334/B spring rider footrest.
The complainant further stated that while purchasing the said vehicle it was demonstrated by the O.P. Nos. 2 and 3 that the said motor cycle would be free from all defects and in case of any defect arising out within the warranty period the same would be replaced and/ or repairmen at their cost. It is stated that in the invoice dated 11.03.15 it was mentioned in column 7 of the terms and conditions that motor cycles are sold as supplied by the manufacturer and carry the manufacturer warranty and being the authorized dealer of the O.P. No.1 the manufacturer the O.P. No.2 and not give a go bye to its responsibility.
The complainant also stated that finding no other alternative the complainant was compelled to serve notices upon the O.Ps through his advocate on 26.11.15 and 11.01.16 by registered with A/D post whereby the O.Ps were called upon to replace the said Royal Enfield Motor Cycle being Engine No. U3S5COFB695234, Chasis No. ME3U 355 CIFB 172660, Model No. THUNDERBIRD 350-Es, MARINE, bearing challan and Invoice dated 11.03.15 within 10 days of receipt of this letter.
The complainant further stated that the O.Ps by not replacing and/ or repairing the said motor cycle have thereby caused deficiency in service. The O.Ps are liable to compensate the loss incurred by the complainant for illegal act by the O.Ps to the tune of Rs. 2,00,000/-. Hence it is prayed that the honour would be pleased to direct the O.P :-
a). An direction upon the O.Ps to replace the motor cycle being Royal Enfield having Engine No. ME 3U355 CIFB172660, Model No. THUNDERBIRD 350-ES MARINE.
b). An award of Rupees 1,00,000/- non performance of service,
c). An award of a further sum of Rs. 1,00,000/- only as compensation for enormous sufferings, mental agony caused by the O.P. Nos. 1 to 3 or their men, agents and representatives for providing defective motor cycle,
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d). Rs. 10,000/- as litigation costs.
O.P. No.1 has contested the case by way of filing written version.
The O.P. No.1 stated that it is denied that the O.P. No.2 is responsible for any replacement or repairmen of the purchase articles as alleged or at all. The answering O.P submitted that the liability or obligation under the warranty, lies on answering O.P / O.P. No.1 only and it is limited to repairing and replacement of defective parts only.
The O.P. No.1 further stated that it is denied that the complainant had noticed four defects like, bad sound engine or engine gets extra heated or in case motor cycle runs above 80 km / ph motor cycle gets heavily shaken or gear and clutch are not functions properly as alleged or at all. It is denied that there is any manufacturing defects in the motor cycle as alleged or at all. These grievances of the complainant were never raised at the first instance. These complaints were made for the first time, sometimes in November, 2015 that too through a lawyer notice which was subsequently taken care off by replacing the parts with a reminder of important instructions as given in the user manual. However, it is also submitted that the said averment has been made by the complainant without any supportive evidence. Hence the complainant should be put out to strict proof of their averments and allegations thereof.
It is pertinent to mention that, some technical information is required to be placed which are as follows:-
‘Hydraulic Tappet Noise’- This noise comes due to sponginess of hydraulic tappet. This spongy nature comes due to less oil lubrication in hydraulic tappet. When vehicle starts oil lubrication also starts with normal speed but if we accelerate the vehicle abnormally like sporty bike then this noise comes due to over speedy. This bike mechanism is different unlike other competitor bikes. Hydraulic tappet completely depends on oil flow and that’s why royal enfield bikes are cruiser bikes.
‘Crankshaft Axial Play’- This issue comes within 500 km if there is any manufacturing faults. This issue generally comes if vehicle speed limit goes beyond mentioned limit. Customer use this bike as sporty bike, it’s a cruiser bike.
The O.P. No.1 also stated that it is denied that the O.Ps did nothing despite of receiving complaint as alleged or at all. It is submitted that without any delay, whatever problems complainant had in its bike. Cured immediately, parts were replaced immediately covered under the warranty.
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The O.P. No.1 further stated that it is denied that the motor cycle suffers any manufacturing defects as alleged or at all. It is further denied that none of the O.Ps are taking an attempt to run away from its responsibility as alleged or at all. It is submitted that said averment has been made by the complainant without any supportive evidence. Hence the complainant should be put out to strict proof of their averments and allegations thereof. It is submitted that it is statutory requirement to register the vehicle before concerned authority and to bear statutory fee and cost before plying it in the road.
The O.P. No.1 also stated that it is denied that the answering O.P is liable to replace the bike as alleged or at all. It is further denied that the O.Ps have not replaced or repaired the motor cycle as alleged or at all. It is further denied that the answering O.P and/ or O.Ps are indulged in any unfair trade and/ or illegal trade practices or cause deficiency in service as alleged or at all. It is denied that the complainant suffered pecuniary loss or faced harassments as alleged or at all. It is submitted that the motor cycle did not suffer from any manufacturing defects as the bike had run close to 13000 km (i.e. from 11.03.15 to 14.01.16) within 10 months from the date of purchase of the said bike. The bike is still running. It is respectfully submitted that if there had been any manufacturing defect, the bike could not have run so much. Moreover, whenever any defect was pointed out by the complainant, the same was removed by changing the relevant part under the warranty. Thus, the answering O.P always fulfilled his obligation under the warranty, even after the warranty period, after receiving the alleged notices, entire parts were changes at free of cost and on immediate basis. And beyond that there is no obligation put up on it by any other law. Hence, there is neither any deficiency in service from O.Ps nor either of any O.Ps indulged in any unfair and/ or illegal trade practices. However, it is also submitted that said averment has been made by the complainant without any supportive evidence(s). Hence the complainant should be put out to strict proof of their averments and allegations thereof.
The O.P. No.1 further stated that it is denied that the O.Ps are liable to compensate a sum of Rs. 2,00,000/- as the loss incurred by the complainant or any illegality done by the answering O.P and/ or O.Ps as alleged or at all. It is further denied that the instant petition/ application is made bonafide or for the ends of justice as alleged or at all. It is submitted that the complainant failed to place any particulars as to how he suffered a loss for a sum Rs. 2,00,000/-. However, it is also submitted that said averment has been made by the complainant without any supportive evidence(s). Hence the complainant should be put out to strict proof of their averments and allegations thereof. The O.P.
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No.1 stated that the grounds as made out are neither tenable either in law nor in the facts and circumstances of the case and to avoid prolixity he repeat and reiterate what has been stated hereinabove of the said written version. Hence the O.P prayed for dismissal of the case.
The O.P. No.2 has contested the case by way of filing written version.
The O.P. No.2 stated that on 11.03.15 the complainant purchased the Motor Cycle in question for a sum of Rs. 1,40,000/- bearing Registration WB 16 AL 8409 from O.P. No.2, who is the dealer and / or agent of Royal Enfield, the manufacturer of the said motor cycle. The complainant paid the sum towards the Ex-showroom price of the bike. The bike was duly registered in the name of the complainant. At the time of taking delivery of the said motor cycle, a demo was given. Detail instructions were given as to how to ride the motor cycle and do its maintenance.
The O.P. No.2 further stated that the bike was covered under a warranty. In terms of the warranty, the answering O.P was supposed to provide first 4 Nos. of free services at a specific interval to the complainant. However, the warranty covers till 2 years or upto 20,000 Kms whichever is earlier and it does not cover the consumable items as indicated in the warranty clause.
The O.P. No.2 also stated that on 25.03.15, the complainant approached the O.P. No.3 with complaint of engine oil change, engine vibration, headlight, gear locked etc. when it had run 754 Kms. Necessary works were executed and motor parts were replaced in terms of the warranty. On 28.03.15, the bike was brought to before the O.P. No.3 with a complaint that there was a vibration and noise in the engine and so the parts were replaced under the warranty. On 04.06.15, the bike availed 2nd Free Service when it had run 3329 Kms. The bike availed 3rd Free Service on 19.08.15, parts were replaced in terms of the warranty. The bike availed 4th Free Service on 05.10.15, parts were replaced in terms of the warranty.
The O.P. No.2 further stated that it is not out of place to mention that after receiving the notices dated 26.11.15 and 11.01.16 issued at the instance of the complainant through its lawyer, the answering O.Ps gave further 1st and 2nd free services, on 14.01.16 and 20.02.16 to the bike. As on 14.01.16 the bike had run 12,817 Kms. Though the warranty was not covered, but for the satisfaction of its customer, the entire motor parts were replaced by the answering O.Ps. In fact those parts were sent through airlift from Chennai to Kolkata and the work was executed by a special unit of East India workshop. The grievance of the complainant was fully taken care off. Thereafter no complaints whatsoever received by the answering O.Ps till date.
The O.P. No.2 also stated that the said O.P is responsible for any replacement or repairmen of the purchase articles as alleged or at all. The
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answering O.Ps submitted that the liability or obligation under the warranty, lies on answering O.P/ O.P. No.1 only and it is limited to repairing and replacement of defective parts only.
The O.P. No.2 further stated that the O.P denied that the complainant had noticed four defects like, bad sound from engine or engine gets extra heated or in case motor cycle runs above 80 Km/ ph motor cycle gets heavily shaken or gear and clutch are not functions properly as alleged or at all. It is denied that there is any manufacturing defects in the Motor Cycle as alleged or at all. These grievances of the complainant were never raised at the first instance. These complaints were made for the first time, sometimes in November 2015 that too through a lawyer notice which was subsequently taken care off by replacing the parts with a reminder of important instructions as given in the user manual. However, in any event the answering O.Ps are of held responsible and/ or cannot be made liable for any manufacturing of the O.P. No.1 as alleged.
The O.P. No.2 also stated that it is denied that the O.Ps did nothing despite of receiving complaint as alleged or at all. It is submitted that without any delay, whatever problems complainant had in his bike, cured immediately, parts were replaced immediately covered under the warranty. It is true that a lawyer notice dated 26.11.15 was sent to the answering O.Ps requesting for immediate replacement and/ or repair of the Motor Cycle. It was duly taken care off, parts were replaced despite lapse of warranty.
The O.P. No.2 further stated that it is denied that the Motor Cycle suffers any manufacturing defects as alleged or at all. It is further denied that none of the O.Ps herein is taking an attempt to run away from its responsibility as alleged or at all. It is submitted that said averment has been made by the complainant without any supportive evidence. Hence the complainant should put strict proof of their averments and allegations thereof. It is submitted that it is statutory requirement to register the vehicle before concerned authority and to bear statutory fee and cost before plying it on the road.
The O.P. No.2 also stated that it is denied that the answering O.Ps are liable to replace the bike as alleged or at all. It is further denied that the answering O.Ps have not replaced or repaired the motor cycle as alleged or at all. It is further denied that the answering O.Ps and / or O.Ps are indulged in any unfair trade and / or illegal trade practices or cause deficiency in service as alleged or at all. It is denied that the complainant suffered pecuniary loss or faced harassments as alleged or at all. It is submitted that the Motor Cycle did not suffer from any manufacturing defects as the bike had run close to 13000 km,(i.e. from 11.03.15 to 14.01.16) within 10 months from the date of purchase of the said bike. The bike is still running. It is respectfully submitted that if there had been any manufacturing defect, the bike could not have run so much. Moreover, whenever any defect was pointed out by the complainant, the same was removed by changing the relevant part(s) under the warranty by the answering O.Ps. Thus, the answering O.Ps always fulfilled his obligation under the warranty, and even after
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lapse of the warranty period, after receiving the alleged notices, entire parts were changes at free of cost and on immediate basis. And beyond that there is no obligation put up on it by any other law. Hence, there is neither deficiency in service from O.Ps nor either of any O.Ps indulged in any unfair and/ or illegal trade practices. However, it is also submitted that said averment has been made by the complainant without any supportive evidence(s). Hence the complainant should put strict proof of their averments and allegations thereof.
The O.P. No.2 further stated that it is denied that the O.Ps are liable to compensate a sum of Rs. 2,00,000/- as the loss incurred by the complainant or any illegality done by the answering O.Ps and/ or O.Ps as alleged at all. It is further denied that the instant petition/ application is made bonafide or for the ends of justice as alleged or at all. It is submitted that the complainant failed to place any particulars as to how he suffered a loss for a sum of Rs. 2,00,000/-. However, it is also submitted that said averment has been made by the complainant without any supportive evidence (s). Hence the complainant should put strict proof of their averments and allegations thereof. The O.P stated that the grounds as made out are neither tenable in law nor in the facts and circumstances of the case and to avoid prolixity the O.P and reiterate what has been stated hereinabove, in the present affidavit.
The answering O.Ps further submitted that there is not a single grievance of the complainant that the bike was not delivered on time by the answering O.Ps or the bike was not maintained properly and/ or it was not in a good condition or there was any undue delay of releasing the bike after service or the services rendered by the answering O.Ps were substandard etc, in fact the main grievance of the complainant is against the O.P. No.1, manufacturer, thus the complainant does not have any cause of action against the answering O.Ps, therefore, the instant proceeding is an abuse of process of law and as such the answering O.Ps should not be made suffer.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
Critical Analysis and Decision with Reasons
The complainant and the O.Ps filed affidavit-in-chief and the complainant also filed the documents.
1). From the complaint and its W.V by the O.Ps, it appears that after purchasing Motor Cycle, the complainant faced troubles from bad sound in
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engine, engine getting heated, gear and clutch problem and vibration of engine beyond 80 Km/ hour speed.
2). The complainant intimated, as per his complaint and legal notices to O.Ps, such defects to O.Ps, both dated 26.11.15 and 11.01.16.
3). The O.Ps in their versions stated that such defects were, inter alia, for his non-compliance of provisions of ‘Running In’ as annexed as ‘A-12’ and guidelines and advice regarding mishandling and rough driving[ (W.V para -13(V) (f)], lacking of consistent high speed by complainant as per instruction of Manual as well as not to exceed speed limit [ W.V. para-13(v)(g)].
But no documentary evidence has been produced by O.Ps to substantiate such version, that the complainant violated such instructions.
4). As admitted by O.P. No.2 and O.P. No.3 at W.V para- 13 (v)(i) that after receiving notices dated 26.11.15 and 11.01.16 from complainant’s Advocates, answering respondents gave further 1st and 2nd free services on 14.01.16 and 20.02.16 to the bike.
It is stated that though warranty was not covered, but for satisfaction of its customer, entire motor parts were replaced.
Replacing entire motor parts indicates that the motor bike was really not in order and it proves grievance of the complainant. In literal language in the said para of W.V, the grievance of the complainant has been mentioned to have been fully taken care of.
5). O.P. No.3’s views in its W.V all along are same as O.P. Nos. 1 and 2’s. It is also affirmed that as on 14.01.16, the bike ran 12817 Kms ( in 10 months) to prove that the bike had running well.
But from vehicle Job Card No. 8660 dated 25.03.15 ( just after 14 days of purchase), as many as 6 defects were detected by Surveyor of Kolkata Bike Zone (mistakenly, headlined as ‘KOLKATA BIZE ZONE’). The defects recorded in the job card include the defects mentioned in the complaint, like engine vibration, fron fork sound, gear lock problem etc.
Service Repair Feedback Form has been shown as ‘yes’ in all questions but there is no signature of the complainant in the form. Some consumables have
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been issued against 2 invoices at 25.03.15 for Rs. 1,122/- but it is not confirmed whether payment has been made by the complainant.
6). Vehicle Job card No. 18716 dated 28.03.15 (just after 3 days from 1st service on 25.03.15 with 6 defects) under Service Type ‘Warranty’ shows defects of ‘Engine Vibration and ‘Engine Noise’ and consumables were issued for Rs. 2,407/- under service in voice dated 30.03.15.
In the final quality inspection dated 30.03.15 of Kolkata Bike Zone against the job card No. 18716 all items of ‘Check List’ have been shown under ‘yes’ column either ‘O.K’ or ‘working’ and in this case also no signature of complainant have been obtained.
7). Job Card No. 20042 dated 04.06.15 ( in 2nd service) shows as good as 9 complaints / jobs including ‘gear problem’, start problem etc. carried out by the supervisor. Odo Kms was recorded as 3329 Km in less than 3 months and consumables for Rs. 1,125/- under 2 service invoices were issued on 04.06.15.
8). On 19.08.15 (after 5 months of purchase) 2 Service Invoices were issued amounting to Rs. 12,504/- for 10 parts in 3rd Free Service.
9). In the Free Service on 05.10.15 after less than 7 months 2 Service Invoices were issued for Rs. 1,449/- but without any signature of issuing authority.
10). It may be pointed out that just after 4th free services, the bike was again put to service under Job Card No. 5701 dated 14.01.16 (just after 10 months of purchase) on the complaint of ‘Engine Noise’ and as many as 15 parts valued at Rs. 17,245/- had to be changed.
11). Job Card No. 6192 dated 20.02.16 (after 11 months of purchase) shows the complaint (not legible) for which parts valued at Rs. 1692.41 had to be changed.
12). It is, therefore, clear in so far discussed above, that purchase of bike was not then completed 1 year but 8 or 9 times services including Free Service, Warranty and Non-Warranty Service have been made, involving thousands of rupees, whether paid by complainant or not.
From a version of O.Ps, it appears that O.P. Nos. 2 and 3 (Kolkata Bike Zone) tried their best in several efforts and services when reported, by changing / replacing entire motor parts but failed to make the vehicle O.K. Even parts were to be imported from outside the state but in vain.
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What do these services of complaints and rendering services thereon by O.Ps indicate? These indicate that the engine of the motor bike may not be technically O.K or the engine may should not have dented its partial collapse repeatedly in such short period. The complainant paid price for his dream bike but is bereft of the expected, satisfactory service. This caused the complainant to suffer physical harassment, mental agony and to some extent his prestige too in his neighbour and friends- circle.
It is fact that in spite of all such troubles in the bike, the complainant tried to continue use of the bike and might have made the bike run 15000 Km in one year.
In the circumstances of what have been analytically discussed above and considering all aspects, we are constrained to pass
O R D E R
1). That the complaint be and the same is allowed on contest against the O.Ps,
2). That the O.Ps are jointly and severally are directed to carry out complete over handling of the engine of the bike in question to make it completely road-worthy and defect free with the certificate of a reputed automobile engineer regarding its fitness with new warranty, within 30 days from the date of order,
OR
In the alternative, O.Ps may jointly and severally have the option to replace the engine of the bike within 30 days from the date of order with a new, defect free one and applicable warranty,
3). That O.Ps are jointly and severally directed to pay to the complaint Rs. 5,000/- as compensation for physical harassment and mental agony and Rs. 2,000/- as litigation cost within 30 days from the date of this order,
4). That if the O.Ps fail to comply with the orders 2 and 3 within the stipulated time, O.Ps shall have jointly and severally to pay Rs. 100/- per day as punitive cost, from the date of expiry of stipulated time till compliance of decretal provisions.
Let copies of the order be supplied to the parties free of cost when applied for.
Member President-in-Charge.
Dictated & Corrected by me.
