PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 29th day of February 2012
Filed on : 22/04/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No. 252/2010
Between
E.P. Krishnakumar, : Complainant
S/o. Purushothoman, (By Adv. Manu Roy, Opp.
Edamanayil house, Lourde Matha Church,
Nadakkavu P.O., Near Thevara Junction,
Udayamperoor, Pandit Karuppan road,
Ernakulam. Cochin-15)
And
1. The Manager, : Opposite parties
Royal Enfield No. 25/85 ABC&D, (By Adv. Nithin George,
Opp. Indian Oil Petrol Pump, M/s. Menon & Pai, I.S. Press
Koonamthai, Edappally, Road, Ernakulam, Kochi
Cochin-682 024. -682 016)
2. The Manager, Royal Enfield,
Tiruvattiyur High Road,
Chennai-600 019.
Tamilnadu.
O R D E R
C.K. Lekhamma, Member.
Brief facts of the complainants case are as follows:
The complainant purchased a Royal Enfield Thunderbird motorcycle for an amount of Rs. 1,02,528/- from the 1st opposite party on 16-10-2009. Besides the same an additional amount of Rs. 1,525/- was also paid for the extra fittings. The 2nd opposite party is the Manager of the service head quarters at Chennai. From the date of purchase itself the motorcycle was constantly showing complaints. On 16-10-2009 the date of purchase it was noticed that there was oil leakage from the motorcycle. On the next day the motorcycle was taken to the 1st opposite party. They agreed to rectify the complaint on the 1st free service. During the 1st service fuel tap was replaced and the oil leakage was rectified and an amount of Rs. 799/- was also charged from the complainant in the free service. After some days the same problem was repeated. On 29-10-2009 the motorcycle was again taken to the 1st opposite party they only tightened the engine screw. Again the vehicle shows various defects mentioned as follows:
i. Continuous oil leak from the engine
ii. Gear shifting is very tight and noisy
iii. There is an irritating large noise from the engine when the vehicle is riding over a speed of70 KM/hour.
iv. Severe vibration for the motorcycle while it is running over a speed of 80 KM
v. Petrol leak from the fuel lid even though it was replaced during 1st service.
vi. Leakage of petrol from the fuel tank lid, when exposed to sun to light.
vii. Missing for the engine after the vehicle has been run 50-60 km continuously.
viii. Rear suspension was very tight which caused severe pain upon the backbone of the complainant.
On 04-11-2009 the vehicle was again taken to the 1st opposite party. The petrol tank itself was replaced. The above complaints became severe, the complainant approached the 1st opposite party with a written complaint. The complainant got back the vehicle on 05-12-2009 and informed that all complaints were rectified. But all the complaints are still continuing. The complainant caused to issue a Lawyer Notice. Immediately after the 1st opposite party called the complainant to the service centre and gave a repair work to rectify the complaints. Even after the rectification, the complainants are persisting. The complainant is unable to use the vehicle, due to the inherent complaints which was showing right from the beginning. Now the vehicle has run near 9000 kilometers and warranty is about to expire.
Hence the complainant is seeking the following directions against the opposite party.
a. to direct the opposite parties to refund an amount of Rs. 1,04,053/- to the complainant with interest @ 18%p.a.
b. to direct the opposite parties to pay compensation for the loss and the mental agony suffered by the complainant and litigation costs.
2. The version of the opposite parties is as follows:
All the time of first service, the complaint reported certain minor complaints and the same were rectified and the opposite party had charged only the cost of consumables. After the first service, the complainant used the vehicle and the vehicle was brought for second service at 2992 kms and the 2nd service was carried out by the opposite party and all the minor complaints pointed out by the complainant were rectified. The opposite party could not find any abnormal vibration or engine noise as alleged by the complainant. The vehicle was reported for the third free service on 22-02-2010 at 5939 KMs. The opposite party could not find any defect in the vehicle. The vehicle was used for more than 9000 KMs by the complainant. A vehicle with inherent manufacturing defect cannot be used as extensively as the complainant’s vehicle. The complainant is not entitled for any of the reliefs prayed for. There is no cause of action for the above complaint.
3. The complainant and the opposite parties represented through counsel. The complainant was examined as PW1. Exts. A1 to A9 and C1 were marked. Neither oral or documentary evidence was adduced by the opposite party. We have heard the counsel for the complainant. The counsel for the opposite parties filed argument note.
4. The points that arose for consideration are as follows:
i. Whether the complainant is entitled to get replacement of the disputed vehicle or refund the price of the same from the opposite parties?
ii. Compensation and costs if any?
5. Points Nos. i&ii. The complainant contented that the disputed motor cycle shows various defects from the very beginning of its purchase. And various occasions the 1st opposite party was repaired and replaced the various parts of the same. But still the defects are persisting.
The opposite parties refuted these contentions and stated that the defects attended by the opposite party was minor in nature and the same was rectified by them. Such defects on the bike were attributed to the rash and negligent use by the complainant.
Ext. A1 is the invoice dt. 16-10-2009 Ext. A2 series are the receipts. Ext. A3 is the cash bill dated 16-10-2009. Ext. A4 is the copy of complaint dated 01-02-2009 filed by the complainant to the service manager of the manufacturer. In which the complainant mentioned various defects of the motor cycle. Ext. A5 is its postal receipt and AD card. Ext. A6 is the copy of letter dated 22-02-2010 issued by the complainant to the opposite party. The said complaints go to show that within 2 months from date of purchase the vehicle shows various defects Ext. A6 is the copy of lawyer notice and Ext. A7 is its AD cards and postal receipts. But no reply is seen sent by the opposite parties to Ext. A4, A6 & A8 notices. Ext. C1 is the report filed by the expert commissioner. The commissioner reported that “ Oil found leaking from clutch cover, top valve cover, and from the timing cover. This is due to the misalignment of mating parts and poor surface finish of the mating surface. This is not admissible in a new generation engine. On detailed inspection, it is revealed that the company(service department) has applied a large amount of rubber sealant to stop the oil leak. But the oil leak continues. This is really a manufacturing defect.” He further reported that “in this particular engine the vibration are felt in the entire RPM range and is transmitted through the foot rest to rider’s body. The vibration are also felt through the handle bar. This is due to the poor balancing of the flywheel (crank shaft)” The conclusion in Ext. C1 report is that “But comparing with the standard model (Bullet 350), the overall quality is very poor and is also expensive than the standard model”. The opposite party belatedly filed objection to the commission report. But the opposite party has not taken any steps to establish their objection. There is no reason to discard the findings of the expert commissioner in Ext. C1. In the absence of anything to the contrary we are of the view that the vehicle suffers from inherent manufacturing defect. Therefore we have no hesitation to hold that the opposite parties are liable to replace the disputed vehicle with a new one. Evidently the vehicle was having defects rights from the beginning. Even though the complainant duly informed the opposite parties as per Ext. A4 letter but they did not take any steps to rectify defects or settle the dispute. The above conduct of the opposite parties amounts to deficiency in service on their part. Naturally the complainant had to undergo mental agony and inconveniences. Therefore the complainant is entitled to get compensation from the opposite parties we fix it at Rs. 10,000/-. We are not ordering cost since we have already ordered to pay compensation.
6. Accordingly we partly allow the complaint as follows:
i. The opposite parties shall jointly and severally replace the disputed bike with a new one of the same quality and description with fresh warranty for the same according to the satisfaction of the complainant or in the alternative the opposite parties shall refund the price of the vehicle as per Ext. A3 to the complainant. In either of the events the complainant shall return the disputed vehicle to the opposite parties simultaneously. The opposite parties are at liberty to choose one of the above directions.
ii. The opposite parties shall jointly and severally pay Rs. 10,000/- by way of compensation to the complainant.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order, failing which the amounts shall carry interest at 12% p.a. till payment.
Pronounced in the open Forum on this the 29th day of February 2012.
Sd/-
C.K. Lekhamma, Member.
Sd/-
A Rajesh, President.
Sd/-
Paul Gomez, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Despatch advice cum invoice
A2 series : Receipts
A3 : Copy of cash bill dt. 16/10/2009
A4 : Copy of letter dt. 01-12-2009
A5 : A.D. card
A6 : Copy of lawyer notice
A7 : A.D. card
A8 : Copy of letter dt. 22-02-2010
A9 : Copy of cash bill dt. 24-10-2009
C1 : Commission report
Opposite party’s Exhibits : : Nil
Depositions:
PW1 : E.P. Krishnakumar
Copy of order despatched on:
By Post : By Hand:
