The Complainant has filed this case against the O.P.  under section 35 of    the Consumer Protection Act, 2019 and praying for following Order/ Relief :-

1. Direction against the OP No. 1 to replace the motor cycle with new one of the same brand, model, same facilities, and accessories.
2. Direction against the OP No. 1 to refund the money which was paid to the OP No. 1 by the Complainant of Rs. 10,000/- at the first instance and 80,000/- at the second instance with bank interest till date and Rs 1,54,770/- with interest which the Complainant has paid as EMI till date to the POP 1 through the banker of the Complainant (POP 2).
3. Direction against the OP No. 1 to pay Rs. 4,00,000/- to the Complainant as deficiency in service and unfair trade practice adopted by OPs to the Complainant jointly or severally.
4. Direction against the OP s to pay the Complainant a sum of Rs. 3,00,000/- for mental pain , suffering , pressure , agony and financial loss sustained by the Complainant by the acts of the OPs jointly or severally.
5. Direction against the OPs to pay a sum of Rs. 50,000/- to the Complainant as litigation cost.
6. Direction against the OPs to the Complainant interest accrued on the awarded amount @ 13 % per annum till making payment.
7. Any other relief or reliefs.

BRIEF FACTS OF THE COMPLAINT

1. The Complainant on 21.07.2020 went to the show room  of the OP and booked a bike being model of Royal Enfield Himalayan Rock Red and paid a

sum of Rs. 10,000/- in cash after receiving receipt No. BRCC297202100166 from the OP No.  1 and subsequently on 20.10.2020 the Complainant paid a sum of Rs. 80,000/- to the OP 1 being financed by the POP 1.

2. That,  the OP 1 Manager of the said show room told him that the bike was unavailable to them due to lock down period of corona pandemic and assured the Complainant that the bike would be available on 1.10.2020.
3. That,  on 15.10.2020 the Complainant received a phone call from OP- 1 that the booked bike had arrived at the show room , the Complainant thereafter went to OP -1, they told the Complainant that the bike would be delivered on 16.10.2020 to the Complainant.
4. That, on 16.10.2020 the Complainant went to the OP- 1 to receive the bike but the staff of the OP told the Complainant that the booked bike was found with a damaged tank , the Complainant denied to purchase the said bike and the OP Manager of the show room assured the Complainant that he will replace the damaged tank of the said bike and then the OP hand over the bike to the Complainant.
5. That thereafter the OP-1 requested the Complainant to keep the bike in the showroom and they will shortly changed the tank of the vehicle and on good faith the Complainant accepted the request of the OP and the vehicle remained in the custody of the OP- 1
6. That the Complainant when went to the OP-1 requesting to change the damaged petrol tank but the OP-1 denied the same and told that no replacement would be done rather the Complainant had to purchase a new tank.
7. That the  Complainant raised his grievance and the OP-1 told him that they could send a report to the higher authority (POP-3 ) and if the higher authority would agree then that could be replaced by them and he took 3 days time for the same.
8. That the Complainant after 3 days there from contacted the OP- 1 over phone who told that the company had agreed for replacement and on 20.10.2020 again the Complainant went to the OP- 1, check his bike which came to his notice that not only the tank but also wiser of the bike was damaged and on his pointing out the matter to the OP-1 he told that the company had not sent the wiser for replacement.
9. That the Complainant did not accept the bike without wiser / he told the OP- 1 that he could take the delivery of the bike if the OP- 1 gave a written undertaking to the effect of replacement of the damaged parts of the vehicle / the OP -1 denied to give any kind of written declaration to the Complainant but the manager note down the undertaking in the invoice of the purchased document and the Complainant took the bike with him but while the Complainant was on the road he found that the indicator switch was not working, again the Complainant went to the OP- 1 , brought the matter to their notice / the OP 1 suggested him to get it repaired at the service center and temporarily they fixed a indicator switch to the said bike and assured for replacement of the same / subsequently the Complainant found on riding the bike that the foot rest of the side and backrest were also damaged condition which was overlooked by the Complainant at the time of delivery of the bike.
10. That the Complainant again went to the showroom with the bike and demanded explanation from the OP- 1 that if the bike is found with so many problem then why only the point of damage tank informed to the Complainant / they sent the Complainant to the service center and the staff of the service center told the Complainant that the footrest of the bike was broken and that had to replace but the same was not possible for that time as it was out of stock of the service center , they fitted one of the foot rest from a trial bike and assured the Complainant for replacement of the same as early as possible.
11. That the Complainant noticed another problem of the clutch brake  wire, he requested the OP- 1 to replace all the damaged part of the vehicle at a time, the OP- 1 agreed but did nothing.
12. That the Complainant after one month there from went to the service center of OP- 2, asking for his parts but the service center ask the Complainant to wait for some time and the Complainant was facing problems with the meter, wiser, unwanted noise, bad working brake and he was feeling disbalance of the vehicle
13. The Complainant after first servicing return home with his bike, after 3 months from the purchase of the bike the Complainant received a call from the showroom (OP- 1) that new tank has arrived, the Complainant went to OP- 1 and at the  service center the Complainant  noticed some scratches on the vehicle when the manager told the Complainant that the same was taken out from a trial bike, the Complainant asked him to show the invoice for the said tank but was denied by the OP- 1
14. That the OP- 1 and his personnel humiliate the Complainant and finally the Complainant was told to go on call of the OP in the next time.
15. That after one month there from OP- 1 contact with the Complainant, he went to the OP- 1 and demanded all required replacement of the parts of the vehicle were done but did not agree to give any invoice in original for the same.
16. That they asked the Complainant to sign a paper as if all the parts of the vehicle were replaced and the Complainant was compelled to sign but the replacement could not completely solved till date and the vehicle has been kept in the garage of the Complainant.  
17. That subsequently the colour of the said fitted tank found to discolour / again Complainant went to the OP -1 , told the OP- 1 that the fitted tank was not original and may be managed by other means by OP- 1/ again the Complainant asked the OP- 1 for replacement but after some days by a phone the OP told the Complainant replacement of the same was rejected by the company.
18. That the Complainant tweeted over the matter in the mass media and got a call from the customer care of the company but without any remedy from the OPs / after five months of said purchase of the vehicle the Complainant went for second servicing and after one year third servicing was done just to keep the bike with mobility but the problems are not totally solved by the OP- 2
19. That the Complainant being frustrated as he went several times to the OP -1 & 2  who assured the Complainant that they would sent the snap of the vehicle to the company but nothing seriously was taken by the OPs and the Complainant is facing unwanted chaining problems till date.
20. That the Complainant has been facing enormous inconveniences to ply the vehicle or bike on road and the same is needed by the Complainant for his business of distributorship of biscuits and the same requires a regular visit in open market far away from the place of Complainant’s business center and he has to visit his business places but presently he could not ply the vehicle for its problems.
21. That the acts or omission, commission of the OPs suggest that the OPs have indulged in fault , unfair trade practice and gross deficiency of service causing mental pain suffering agony and financial loss of the Complainant as the purpose of buying the vehicle is got frustrated.
22. The Complainant in the meantime obtained certificate of registration of the vehicle bearing No. WB 72 X 8643, chassis No.

ME3D4A5F1LK073130,  Engine No. D4A5F1LK075491  from the competent authority and insurance coverage from ICICI Lombard No. 3005/RF-15657048-00-000-(POP 4).

23. That the vehicle is on finance from POP- 1 and the regular EMI of Rs. 7,370/- has been collected by the POP- 2.
24. That the cause of action firstly arose on 21.07.2020 when the Complainant booked the bike by paying first down payment, secondly on 15.10.2020 (The day of receiving call from the OP show room), thirdly on 16.10.2020 the date of receiving call by the Complainant from the OP ), fourthly on 20.10.2020 ( the date of checking of the bike and receipt of the same by the Complainant), fifthly on 31.10.2020 ( date of first servicing by OP- 2 ), sixthly on 19.01.2021 ( Date of visit and installing of parts of the vehicle by OP- 2) , seventhly on 23.04.2021 (date of second servicing by OP-2), eighthly on 29.04.2021 (the date of receiving mail by the Complainant sent by OP -1) , ninthly on 28.01.2021 , 14.01.2021, 30.01.2021 (date of tweeting by the Complainant), tenthly on 23.02.2022 (the receipt of complaint by Complainant from the OP ) and finally on 22.04.2022 (the date of written complaint sending by post to the OP- 1which is continuing .

To prove the case the Complainant has filed following documents :-

1. Copy of money receipt dated 31.07.2020.
2. Copy of tax invoice dated 20.10.2020 collectively.
3. Copy of insurance of ICICI Lombard.
4. Copy of certificate of registration.
5. Copy of invoice dated 31.10.2020
6. Copy of certificate of enrollment of road side assistance No. 20201031954916 dated 20.10.2020.
7. Copy of tax invoice service dated 31.10.2020.
8. Copy of GMA sales invoice dated 19.01.2021.
9. Copy of service estimates dated 19.01.2021
10. Copy of service free invoice dated 19.01.2021
11. Copy of mail dated 17.01.2021
12. Copy of mail dated 20.01.2021
13. Copy of mail dated 29.01.2021
14. Copy of service pre invoice dated 23.04.2023.
15. Copy of service estimate dated 23.04.2021, 12.08.2021,
16. Copy of service pre invoice dated 24.08.2021, 05.09.2021, 20.11.2021, 15.12.2021
17. Copy of service estimates dated 05.09.2021, 20.11.2021, 15.12.2021, 17.01.2022, 23.02.2022, 26.04.2022
18. Copy of mail dated 14.02.2022, 16.02.2022, 01.03.2022, 27.11.2020,
19. Copy of photos inflicting damaged parts of the vehicle
20. Copy of tweets collectively.
21. Accounts statement of IDFC collectively.
22. Passbook account of IDBI along with statement
23. PAN card of the Complainant
24. ADHAR card of the Complainant including voter card.
25. Copy of complaint by the Complainant dated 20.02.2022 receipt with seal and signature of OP 1.
26. Copy of complaint by the Complainant dated 22.04.2022 to the OP 1.

WRITTEN VERSION OF THE OPPOSITE PARTY

On receipt of notice the OP 1 and 2 appears through Vokalatnama filed their W/V and denied all the material allegations of the Complainant . In the W/V they have stated that the case of the Complainant is not maintainable either on facts or on law / there is no cause of action in filing of this case / there was no deficiency in service on their part / the Complainant did not disclose any deficiency in service by the OP- 1 and 2 and the allegations made in different paragraphs of the complaint are found to be meaningless and by surpassing the actual fact the Complainant has filed the case / the contents of the complaint petition is absolutely false having no legs to stand upon and the Complainant has filed this case against the OP- 1 and 2 for deriving wrongful gain causing wrongful loss to them /  the complaint case is speculative , vexatious as well as mala fide and as per the provision of Consumer Protection Act deficiency in service is the prime elements and without deficiency in service against either of the OPs the jurisdiction of the commission would not be attracted. / the Complainant is bound to prove the each and every paragraph of his complaint by adducing cogent , reliable evidence and the OP 1 and 2 have denied  all the allegation made by the Complainant / the Complainant has not annexed report of any independent expert or any other documents to substantiate the manufacturing defect in the motor bike or deficiency in service on the part of OP 1 and 2 with regard to prayer for replacement of the motor bike would pale into insignificant in view of the fact that without proving manufacturing defect the replacement of motorbike would not arise and regarding the allegation in deficiency in service on the part of OP 1 and 2 the Complainant is to prove the same by giving reliable evidence as required.

In this regard  the OP 1 and 2 refers decision of classic automobiles –vs- Lila Nand Mishra I (2010) CPJ 235 NC where the Complainant alleges defects in goods the forum is bound to determine the facts on the basis of clear evidence , by way of expert evidence and in the case in hand the Complainant has failed to adduce any expert evidence to substantiate his allegations and thereby the complaint is liable to be dismissed. The OP 1 and 2 has also stated that the Complainant filed this case to take undue advantage to cover up his own latches of lapses involving the motorbike and as such the Complainant is not entitled to get any relief as the Complainant has not approached this commission with clean hands. In this regard the OP 1 and 2 has also referred another decision of M/S Shakum oversees ltd –Vs- National Insurance Co. Ltd. (1993) I CPJ 86 (NC) . They have also stated in the W.V that the motorbike manufactured by the company M/S Royal Enfield are delivered only after completing the process of pre delivery inspection and to the entire satisfaction of the customer in respect of the motor bike and the same had been done in the instant case also therefore the allegation as labeled against the OP- 1 and 2 are found to be myth having no garments of truth in it. The OP- 1 and 2 has stated that the contents of Para No. 1 to 5 of the complaint are matter of record, contents of paragraph no. 6 to 15 are not correct. The OP-1 has further stated that after  3/4 days of the first servicing as on 31.10.2020 the OP -1 informed the Complainant over phone that the fuel tank and necessary parts have been arrived at their service centre on 04.01.2021 and asked the Complainant to go to their service center and get  the fuel tank with accessories be replaced free of cost for smooth running of the vehicle and on 19.01.2021 after 19 days of the first servicing the Complainant went to the service center when the fuel tank and other accessories have been replaced to the entire satisfaction of the Complainant which was duly acknowledge by him vide Satisfaction  note dated 19.01.2021 and thereby the replacement of fuel tank from a trial bike is not true. Those two OPs have also denied the statements of paragraph no. 16 to 24 and has stated that the plea taken by the Complainant that he was asked to sign a paper that all the vehicle parts of the Complainant was replaced and the Complainant was compelled for that is absolutely false and after installation of a new fuel tank and removal of other common defects to the fullest satisfaction of the Complainant and after smooth running of bike of 2500Km the Complainant went to the service center of OP 2 on 23.04.2021 for 2^nd servicing and the job card reflects that during second servicing there was no complain on the part of the Complainant being faced by him and the bike was delivered to the Complainant to his satisfaction after such free servicing and therefore the contents of Paragraph no. 19 of the complaint to the effect that subsequently the colour of the said fitted tank to be discolored is not true and after one year of the purchase of bike he went for second servicing is also false as the Complainant went for second servicing after six months from the date of purchase of the bike and thereby the statement of the Complainant goes to suggest that the Complainant had a tendency to tell lie for deriving  wrongful gain causing wrongful loss to the OPs and it is settled principle of the statues that if a person is found to be having tendency of telling lie his statement cannot be taken to be consideration. They also stated that after replacing the fuel tank with new one the Complainant after 7 months i.e in the month of July 2021 went to the service center of the OP disclosed and complained about the discolor of the fuel tank and asked for another new fuel tank then the technician of OP 2 on examination of bike noticed that a tank guard was fitted on the fuel tank which was not permissible by the manufacturer even then the OP 2 told the Complainant that  they will snap and send the said complaint of the Complainant to the manufacturer for their action in the matter and after receiving the green signal from the manufacturer they would act accordingly / the OP 2 send the complaint along with photographs of the fuel tank to the manufacturer on 13.07.2021 for their observation into the matter/ the manufacturer upon examination of the spots on the fuel tank found that such spots on the fuel tank was external damage and the Complainant had/ have no liability to replace the same under warranty which was communicated to the Complainant and till date the Complainant’s bike had/ has gone through a lots of external modification which the company does not permit at all and the spot on the fuel tank look like externally damaged as opined by the company being unknown to them and the company is not liable to change the fuel tank under warranty since the company was responsible in the matter of warranty the OPs have/ had no liability to change the fuel tank under warranty as claimed by the Complainant. The OP no. 1 and 2 have also stated in their W/V that, after second free servicing being done as on 24.04.2021 to the fullest satisfaction of the Complainant he has deliberately failed to avail 3^rd free servicing as prescribed in the manual reasons best known to him/ it is also stated the Complainant again went to the OP 2 on 24.08.2021 with some running common problem related to handle bar, cabin noise , vibration issue which was duly resolved by the Op 2 free of cost and the Complainant after trial being satisfied with the services rendered to him by the OP 2 has put his signature on the customer satisfaction form and it is therefore suggests that as on 24.08.2021 there was no complaint much less any running common problem infested with the bike and the vehicle had then already for an about 11,466 kms without any shorts of problems in the vehicle save and accept change of instrument cluster only as the cluster was then not available being not received by the OPs. The OP 1 an 2 have also stated that the Complainant visited the OP 2 (service Center) on 05.09.2021 when the instrumental cluster was replaced to the bike of the  Complainant free of cost, again on 20.11.2021 the Complainant visited to the service center of the OP 2 for minor paid servicing and then had no other major complains infested with the bike as reflected in the job card. It is also stated that on 15.12.2021 the Complainant visited the service center of OP 2 for 4^th free servicing without any short of complaint infested with the bike and normal services were rendered by the Op 2 and the bike was delivered to the Complainant on the even date and until 4^th free servicing there was no other problem with the bike and all the previous running issued which was faced by the Complainant was resolved and the vehicle was free from any shorts of defects. The Op 1 and 2 further stated that after 17 months i.e on 23.02.2022 from the date of purchase f the bike after interrupted smooth running of 9,594 Kms the Complainant again visited the OP 2 with various issues although all issues were resolved by the Op 2 during 4^th free servicing and the OP 2 after trial run found all the issues were imaginary except rear wheel common for an adventure category bike after running hefty kilometers and the wheel rim was replaced free of cost although not covered under warranty valued Rs. 1800/- borne by the OPs . It is further stated that on 02.04.2022 the Complainant lodged a written complaint relating to several defects with the bike and basing upon the said complaint the OP 2 vide email dated 25.04.2022 informed the Complainant fixing 26.04.2022 for inspection f bike and to resolve the issues as complained of and on 26.04.2022 the Complainant after running the vehicle for 11466 KMs visited the Op service center with numerous defects and after thorough examination of the vehicle by the technicians of the Op 2 found the bike was not infested with such problems as complained by the Complainant but found that the bush present in the wind shield and the back light were needed to be replaced to cure the vibration issue not covered under warranty and the issue relating to broken meter was needed to be replaced under warranty as these were common problems for an adventure tourer bike and no other problem were noticed by the technicians of the Op 2 and since the meter was not available at the service center the Complainant was asked to visit the service center after receiving the meter from the company but the Complainant did not turned back and as the rear wheel disabling issue it was a paid job which the Complainant denied to pay and for which the work was not done and the Complainant left the service center of the OP 2 and never visited the OP- 2 which suggests that the Complainant has been running the vehicle smoothly without any interruption. The Op 1 and 2 have also stated that regarding sound and noise problem as complained of was caused to the bike due to the latches and irresponsibility of the Complainant as he failed to take care of the bike and skipped regular free services which added more to the additional extra modified accessories not recommended by the manufacturer fitted by him in the bike which is also strictly prohibited as per the manual provided by the manufacturer.

To falsify the case  the Complainant the OP 1 and 2 files the following documents by a firisty:

1. Job card and invoice dated 31.10.2020, 1^st free servicing – Annexure 1
2. Job card dated 27.11.2020 Annexure 2
3. Job card, purchase invoice, satisfaction note dated 19.01.2021 Annexure 3
4. Job card dated 23.04.2021, 2^nd free service, inc. communication Annexure 4
5. Job card dated 24.08.2021 , satisfaction note Annexure 5
6. Job card and invoice dated 05.09.2021 Annexure 6
7. Job card dated 20.11.2021 , running repair Annexure 7
8. Job card dated 15.12.2021 fourth free service Annexure 8
9. Job card dated 23.02.2022, running repair, inc. communication Annexure 9
10. Complaint of the Complainant dated 22.04.2022 Annexure 10
11. Communication with Complainant dated 25.04.2022, email Annexure 11
12. Job card dated 26.01.2022 inc. invoice Annexure 12
13. Photographs of modifications Annexure 13

          Pro OP- 1 also appears through Vokalatnama , filed W/V and stated that the case is not maintainable in facts or law , this commission has no jurisdiction to entertain the complaint, / There is no sufficient ground in the instant case to draw up a proceeding / the Complainant has no cause of action against the Pop 1 to file this case,/ the Complainant has not come with clean hands / the present petition is being frivolous and harassing as well/ this case is defected due to mis joinder and non joinder of necessary parties/ the Complainant has filed the case surpassing the material facts / the complaint is barred by limitation/ the Complainant is not consumer within the meaning of CP Act, and the POP 1 being the financer of the motor cycle had financed a sum of Rs. 152000/- on 23.10.2020 which was to be payable in 24 equal monthly installments and the loan stands closed in the books of accounts of the Pop 1 and there remains fiduciary relationship between the Complainant and Pop 1. The POP 1 did not acknowledge the contents of paragraph no. 4 to 24 by stating that the POP 1 cannot comment upon the same and the disputes are technical and mechanical in nature and within the ambit and purview of POP 1. The POP 1 has also stated that in the complaint there is no whisper regarding any unfair trade practice or deficiency in service by the POP 1 and by filing the W/V the POP 1 praying for dismissal of the case against the POP -1.

Perused the written complaint, written version of the OPs and POPs and documents filed by the parties the following points are taken up for consideration.

                                    Points for Consideration

1. Whether the Complainant is a Consumer?
2. Whether the case is maintainable under the Consumer Protection Act 2019?
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.

In order to prove the case the Complainant himself has filed written deposition in the form of an affidavit. In the written deposition the Complainant has specifically corroborated the contents of the complaint. In support of the written deposition as well as insupport of the complaint the Complainant filed several documents to prove its case.

Ld. Advocate of the Complainant also filed brief notes of argument. By filing the BNA, Ld. Advocate of the Complainant submits that, the Complainant has been able to prove its case against the OP No. 1 and 2 and the Complainant is entitled to get the relief as prayed for. In the written notes of argument it is stated by the Complainant that the Annexure 1 dated 21.07.2020 gives the detail about the evidence of booking of the concerned vehicle and payment of a sum of Rs. 10,000/- in cash which was acknowledge bythe OP 1 . It is also argument of the Complainant that he gave a further sum of Rs. 80,000/- to the OP 1 on 20.10.2020 . The Complainant further argued that through the Annexure 3 and 4 the Complainant has been able t prove the evidence of insurance of the vehicle as well as registration of the vehicle. He also argued that, though several other documents the Complainant has been able to prove the deficiency in service on the part of OPs and for which the Complainant suffered pecuniary as well as financial loss and the Complainant has also been able to prove the cause of action for which the Complainant had filed this case against the OPs . It is further argument of the Complainant is that the instant consumer case is proper and on justified reasons originated from a consumer with bonafide grievances against the act of the OPs in a lawful manner and the Complainant is entitled to get the relief as prayed for.

To falsify the case of the Complainant the OP 1 adduced evidence through Tappa Guha, manager of Durga Motors, Royal Enfield Service center as PW 1 and also filed another written deposition in the form of an affidavit through Saikat Guha. In the written deposition the OP No. 1 and 2 have categorically stated that the Complainant has no locus standi to file the case against them and only to grab compensation amount from the OPs the Complainant has filed this case surpassing the material fact.In the written deposition the PW 1 as well as PW 2 have specifically stated that, the Complainant has pressed into service the instant complaint by abusing and infringing the object of the provision of law knowing fully well about the fact that there was no deficiency in service on the part of the OP but the Complainant had file this case for deriving wrongful gain for himself and causing wrongful loss to the OPs. The witnesses of the OP 1 and 2 have also corroborated the contents of their written versions and has stated that the Complainant has not annexed report of any independent expert or any other documents to substantiate the manufacturing defects in the motor bike and/or deficiency in service on the part of the OPs and therefore the prayer for replacement of the motor bike would automatically pale into insignificant in the view of the fact that without manufacturing defect the question of replacement of the motorbike would not at all arise . The OPW 1 and 2 during their evidence have also stated that the Complainant has failed to prove the alleged deficiency in service who is put to strict proof of the same by giving reliable evidence which is required and mere statement is not enough to prove the defect and the Complainant to take undue advantage to cover up his own latches or lapses involving the motorbike has filed this case surpassing the material facts. The OPs have also stated in their evidence that, pre delivery inspection of motorbike was done by the Complainant but the Complainant raised no objection in this regard and on 19.01.2021 after nineteen days of first servicing the Complainant went to the OP 2 when the fuel tank and other accessorieswere replaced to the entire satisfaction of the Complainant which was duly acknowledge by him vide satisfaction note dated 19.01.2021and after smooth running of the bike for 2500 kms, the Complainant went to the OP 2 on 23.04.2021 for second servicing and from the job-card it reflects that during second servicing there was no complaint on the side of the Complainant being faced by him and the bike was duly delivered to him to his satisfaction after such free servicing. The OP 1 in his evidence has also stated that after 7 months i.e in the month of July 2021 the Complainant went to the OP 1, disclosed and complaint that the discolour of fuel tank and asked for another new fuel tank but the technicians attached to the service center on examination of the bike noticed that a tank guard was fitted on the fuel tank though it is not permissible by the manufacturer even then they told the Complainant that they would take photographs and send the complaint of the Complainant to themanufacturer for their action and after receiving their green signalfrom the manufacturer they would act accordingly, they send the photographs along with the complaint to the manufacturer on 13.07.2021 for their observation, the manufacturer on examination of spots on the fuel tank found that such spots on the fuel tank was external damage and the company have/ had no liability to replace the same under warranty which was communicated to the Complainant. It is further stated that, after second free servicing being done on 23.04.2021, to the fullest satisfaction of the Complainant he has deliberately failed to avail third free servicing as prescribed in the manual and on 24.08.2021 there was no complaint on the side of the Complainant when the vehicle had already for and about 11466 kms run without any sorts of problem save and except change of instrument cluster only which was replaced on 05.09.2021 and after 17 months i.e on 23.02.2022 from the date of purchase of the bike after uninterrupted smooth running of 9594 kms the Complainant visited the service center with various issues which were resolved by them during fourth free servicing. By filing the evidence as well as documents ld advocate of the OPs have stated that the Complainant has not been able to prove this case against them and for which he is not entitled to get any relief as prayed for.

By filing brief notes of argument on the side of the POP No. 1 Ld. Advocate submits that the POP 1 is merely the financer of the vehicle who finance a sum of Rs. 152000/- on 23.10.2020 which was payable in 24 equal monthly installments of Rs. 7370/- which has already been paid by the Complainant and as such the case is not maintainable. It is also argued that the POP 1 has no role to play in the case as alleged  and as the Complainant has already paid the loan amount and as such the loan stands close in the statement of the account of the Complainant. By filing BNA the POP 1 praying for dismissal of the case.

Having heard the Ld. Advocates of both the sides and on perusal of the complaint, W/V of the OPs, evidence of the Complainants, evidence of the OPs, documents of the parties, BNA of the parties the following points are admitted by all of them, which are as follows:

1. It is admitted fact that the Complainant purchased a bike being model of Royal Enfield Himalayan Rock Red from the OP 1 by making payment of the entire price of the bike through cash as well as cheque as well as through finance by the POP 1.
2. It is also admitted fact that the OP 1 delivered the bike to the Complainant after receiving money from him.
3. It is also admitted fact that the Complainant took the bike to the OP 2 for servicing on 31.10.2020 when it had run496.kms (First Servicing), again took his bike before the OP 2 on 23.04.2021 when 2,500 kms was completed.
4. It is admitted fact that, the Complainant has not annexed report of any independent expert or any other documents to substantiate the allegations of the manufacturing defects in the motorbike.
5. It is also admitted fact that, the first servicing of the Bike was done on 31.10.2020, second servicing was done on 23.04.2021 after running of the Bike for 2,500 kms.
6. It is also admitted fact that the Complainant has failed to avail third free servicing of the Bike.
7. It is further admitted fact that, fourth free servicing of the Bike was done on 15.12.2021 and during second and fourth free servicing of the Bike the Complainant raised no complaint with the Bike.

The denial of the Complainant is that, since the date of purchase of the Bike the Complainant was compelled to go to the service centre ( O.P. No. 2) with various problems of the Bike.

The O.P. No. 1 and 2 in their written version, written deposition and in their Brief Notes of Argument claims that, the Complainant has failed to avail third free servicing of the Bike but the Complainant in paragraph no. 20 of the Complaint has stated that, after one year, third servicing also done. But the Complainant did not file any documents before the Commission to prove the fact that, he took the Bike before the O.P. No. 2 for third servicing and for which it creates a strong doubt as to whether the Complainant has come before this Commission in clean hands or not.

Let us see how far the Complainant has been able to prove the case against the OPs or not.

In the case in hand it is admitted by both the parties that, the Complainant took his Bike before the O.P. No. 2 with various issues/ problems. But it is not the case of the Complainant that those issues/ problems of the Bike were not addressed/ settled by the O.Ps. It is settled principle of law that, any manufacturing defect of any vehicle/ Bike has to be established by leading expert evidence, but in the instant case the Complainant did not produce any document relating to expert opinion.

From careful perusal of the Job-Cards which are filed on the side of the O.P. No. 1 and 2 it reveals that, the Complainant raised no complaint during the time of servicing of the Bike and to that effect the Complainant put his signature on the Job Card.

In the instant case the Complainant praying for replacement of the Bike but is needless to mention here that, unless and until the Complainant proves the manufacturing defect of the Bike the replacement would not arise.

The Complainant must have to prove the defect of the Bike by strict proof of the same by reliable evidence that may either through oral evidence or through expert evidence or documentary evidence. But in the case in hand all these evidences are lacking. In absence of any expert evidence it is very much hard to swallow the claim of the Complainant that the Bike was having manufacturing defect.

The Complainant in this case did not produce any kind of report of any expert to substantiate the claim that, the Bike had inherent manufacturing defect. Had there been any sorts of inherent manufacturing defect with the Bike obviously it could not have run for 11, 466 kms on 26.04.2022 i.e. after 19 months from the date of purchase. Accordingly, it can safely be presumed that, the Bike was road worthy condition and free from any inherent manufacturing defect otherwise it could not run 11,466 kms within 19 months.

Considering all, we are of the view that, mere taking of the Bike before the service centre for several times does not ipso facto prove the manufacturing defect and burden of proof of manufacturing defect lies on the Complainant which in this case is lacking.

Hence, it is,

O R D E R E D

that, the instant Consumer Case being in no. 68/2022 is hereby dismissed on contest without any cost.

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