Karnataka

Kolar

CC/14/2018

Sri.Chand Pasha - Complainant(s)

Versus

The Proprietor, - Opp.Party(s)

Sri.P.N.Srinath

05 Jan 2019

ORDER

Date of Filing: 24/02/2018

Date of Order: 05/01/2019

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 05^th DAY OF JANUARY 2019

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., PRESIDENT

SMT. A.C. LALITHA, BAL, LLB.,  ……  LADY MEMBER

 

CONSUMER COMPLAINT NO. 14 OF 2018

Sri. Chand Pasha,

S/o. Sunnasab,

Aged About 35 Years,

R/at: Mugabala Village,

Hosakote Taluk,

Bangalore Rural District.

(Rep. by Sri.P.N. Srinath, Advocate)                                        ….  COMPLAINANT.

 

- V/s –

1) The Proprietor,

Dealer of Royal Enfield,

Jagadamba Auto Mobiles,

Site No.16/3, Municipal Katha,

SAS No.167, Ward No.14,

Petechamanahalli Village,

Kolar.

(Rep. by Sri. C.M. Niranjana Swamy, Advocate)

 

2) The Chief Executive Officer

& Managing Director,

Royal Enfield India,

(A Unit of Eicher Motors Limited)

Tiruvottiyur High Road,

Tiruvottiyur, Chennai-600019.

Tamilnadu State.

(Rep. by Sri. C.M. Niranjana Swamy, Advocate)               …. OPPOSITE PARTIES.

 

-: ORDER:-

BY SRI. K.N. LAKSHMINARAYANA, PRESIDENT,

01.   The complainant has filed this complaint against the opposite parties and prays to direct the Ops to refund the entire amount of Rs.1,56,068/- with interest @ 24% per annum from the date of payment made by the complainant till realization or in the alternative direct the Ops to hand-over the new vehicle along with litigation charges and compensation of Rs.50,000/- for the mental agony suffered by the complainant.

 

02.   The brief facts of the complainant’s case is that, on 22.08.2016 he made cash payment of Rs.10,000/- to OP No.1 towards advance booking of Royal Enfield 350 CC” motor cycle vehicle.  Thereafter on 03.11.2016 and on 05.11.2016 he made cash payment of Rs.50,000/- each to OP No.1.  In all he has paid Rs.1,56,068/- inclusive of life tax, insurance and other accessories to OP No.1.  On 07.11.2016 the complainant took delivery of the vehicle from OP No.1 and the warranty period was two years.  After taking delivery of the said vehicle the complainant obtained registration from the RTO, KR Puram, Bangalore Rural District, bearing registration No. KA-53 EQ-7019.  The complainant has obtained first and second free service from the authorized service center of Ops and thereafter the complainant found overheating, excess noise from the engine and starting problem in the vehicle.  The complainant approached the OP No.1 and intimated the same.  The OP No.1 suggested the complainant to ran the vehicle for some more kilometers and the same will be set-right and in spite of that also problem in the said vehicle persisted.  Thereafter he handed-over the said vehicle to OP No.1 to resolve the problem.  OP No.1 given apology letter dated: 09.11.2017 to the complainant stating that, soon they will entrust a mechanic to solve the said problem and arranged another vehicle to the complainant.  As per the letter dated: 09.11.2017, the OP No.1 has to handover the said vehicle within 02 months and till today the OP No.1 has failed to handover the said vehicle in spite of several approaches and requests made by the complainant.  The said arranged vehicle was taken back by OP No.1.  OP No.1 has also stated that, after conducting inspection by their head office they will do part-wise engine replacement.  The OP No.1 has failed to resolve the above problem and there is deficiency in service and negligence on the part of the Ops.

 

03.   OP Nos.1 & 2 appeared through their counsel and filed common version contending that, the present complaint deserves to be dismissed as the complainant has made false, frivolous and baseless misleading statements in the complaint against the Ops.  The complainant came before this Forum with unclean hands and suppressed the material facts.  The Ops specifically contended that, on 26.11.2016 and on 02.02.2017, the complainant brought the said vehicle for first and second service to the authorized service center of OP No.2 for routine maintenance and servicing and the complainant has not raised engine noise and starting problem.  The copy of the job card dated: 26.11.2016 and 02.02.2017 are at Annexure “C”.  The complainant has not taken third and fourth free services as per the warranty guideline which are mandatory for routine maintenance as mentioned in the owner’s manual and the warranty of complainant’s bike has become void.  The copy of the warranty guidelines is at Annexure “B”.  The bike of the complainant was ready for delivery on 26.09.2017, the complainant with malafide intention has not take delivery of the bike, despite number of calls and messages have been sent to the complainant.  The complainant left the said bike illegally with OP No.1.  The alleged bike has no manufacturing defect whatsoever and it is in good road worthy condition and it does not suffer from any defects whatsoever.  The bike is in perfect running condition.  The said complainant’s bike successfully completed 17,663 kilometer.  The complainant with malafide intention has sought replacement of the motorcycle with a new one and in the alternative to refund the total price of the said motorcycle by alleging manufacturing defect and prays to dismiss the complaint with exemplary costs.

 

04.   The complainant has filed affidavit evidence by way of examination-in-chief and got marked Exhibit-C.1 to Exhibit-C.8. 

(i) Order Booking Form dated: 22.08.2016 – Exhibit-C.1

(ii) Receipt dated: 22.08.2016 – Exhibit-C.2

(iii) Receipt dated: 03.11.2016 – Exhibit-C.3

(iv) Receipt dated: 05.11.2016 – Exhibit-C.4

(v) Delivery Note dated: 07.11.2016 – Exhibit-C.5

(vi) Service Invoice dated: 30.11.2016 – Exhibit-C.6

(vii) Apology Letter dated: 09.11.2017 – Exhibit-C.7

(viii) Vehicle Delivery (Check List) dated: 07.11.2016 Exhibit-C.8

 

05.   The CEO of OP No.1 by name Sri. Kishor.B and the GPA of OP No.2, one Sri. R. Ananda Kumar, Area Sale Manager filed their affidavit evidence by way of examination-in-chief and exhibited Annexure ‘A” to Annexure “D”. 

 

06.   The OPs have submitted following Xerox copies of the documents:-

(i) Apology letter dated: 09.11.2017                    – Annexure-A

(ii) Original book of Owner’s Manual                   – Annexure-B

 

(iii) Job Card dated: 26.11.2016                          

(iv) Service invoice dated: 01.12.2016                    

(v) Vehicle Delivery (Gate Pass) dated: 01.12.2016

(vi) Job card dated: 26.09.2017       

(vii) Tax Invoice dated: 18.01.2018                     

(viii) Job Card dated: 03.07.2017

(ix) Service Invoice dated: 07.07.2017                        Annexure-C

(x) Vehicle Delivery (Gate Pass) dated: 06.07.2017     15 in nos.

(xi) Job Card dated: 02.02.2017                                    

(xii) Vehicle Delivery (Gate Pass) dated: 02.02.2017

(xiii) Job Card dated: 12.07.2017

(xiv) Service Invoice dated: 02.08.2017

(xv) Vehicle Delivery (Gate Pass) dated: 14.07.2017

 

(ii) Xerox copy of Letter dated: 27.04.2018         - Annexure-D

 (xvi) Xerox copies of Letter dated: 12.09.2018  - Annexure-E

 

07.   Both counsels filed their written arguments.

 

08.   The counsel for OPs have filed Memo dated: 29.08.2018 along with citations:-

(i) Revision Petition Nos.4575 & 4787 of 2012 of Hon’ble National Commission, New Delhi.

(ii) Civil Appeal No.3734/2000 of Hon’ble Supreme Court of India.

 

09.   We have heard the oral arguments of both sides.

 

10.   Now the points that do arise for our consideration are that:-

POINT NO.1:- Whether the complainant has proved deficiency in service on the part of the OPs?

 

POINT NO.2:-   Whether the complainant is entitled for the relief as prayed by him?

 

POINT NO.3:-   Whether is there any cause of action arise as on 09.11.2017 as alleged by the complainant?

 

POINT NO.4:-   What order?

 

11.   Our findings on the above points are that:-

POINT NO.1 to 3:-   Are in the Negative

POINT NO.4:-   As per the final order

                                        for the following:-

 

REASONS

12.   POINT NO.1:-  I have perused the complaint, version, affidavit evidence filed by both the parties, the documents relied, written arguments filed by the parties and the citations relied by the OPs.  The counsel for the complainant addressed arguments to allow the complaint as prayed by him as the OP has not solved the defects found in the said vehicle and on the other hand the counsel for the OPs addressed arguments that, the complainant has left the vehicle for first and second service and thereafter he has not taken 3^rd and 4^th service and he left the alleged bike for repair and the complainant has not taken delivery of the said bike and the said bike was ready for delivery on 26.09.2017 itself and the said vehicle is in good road worthy condition and prays to dismiss the complaint.

 

13.   It is an undisputed fact that, the complainant has purchased the alleged Royal Enfield 350 CC motorcycle from OP No.1 by paying a sum of Rs.1,56,068/- and taken delivery of the said bike on 07.11.2016, on 26.11.2016 and on 02.02.2017 the complainant has taken first and second service at authorized service center of OP NO.2.  The complainant after first and second service he left the bike with OP No.1 and the OP No.1 given letter dated: 09.11.2017.  To support the case of the complainant the complainant has produced documents as per Exhibit-C.1 to C.8 i.e., the receipts, delivery note and 02 service invoices dated: 30.11.2016 and 02.02.2017 including letter of OP No.1 dated: 09.11.2017.  On the other hand, OPs also produced Annexure-A to Annexure-E i.e., letter dated: 09.11.2017 i.e., Annexure-A, owner’s manual Annexure-B, job-chards Annexure-C i.e., 15 in numbers, letter of OP No.1 dated: 27.04.2018 Annexure-D for return of test drive vehicle and Annexure-E letter of OP No.1 for return of alleged bike to the complainant.

 

14.   The main allegation of the complainant is that, after second service of his alleged bike he found overheating, excess noise from the engine and starting problem and he approached the OP No.1 and OP No.1 instructed the complainant to run some more kilometers to set-right but the said problem persisted in the vehicle.  The complainant left the bike for repair with the OP No.1 and OP No.1 in spite of undertaking to repair the defects as per the letter dated: 09.11.2017 has failed to handover the said vehicle in spite of several approaches and requests.  The OP has specifically contended that, the complainant has taken only first and second service i.e., on 26.11.2016 and 02.02.2017 at the authorized service center of OP No.2 for routine maintenance and servicing and he has not opted for third and fourth service and the warranty of the bike become void and the complainant’s bike was ready for delivery and the complainant has not come forward to take back his bike in spite of calls and messages, the complainant has not taken delivery of his alleged bike and illegally left the bike with OP No.1.  The complainant’s vehicle is in good road worthy condition and there is no any defect and the complainant’s vehicle has successfully ran 17,663 kilometers as per the job-card dated: 26.09.2017.  On perusal of the above said contention of the parties it reveals about the negligence, as the complainant has not approached OP No.1 after he left the bike for repair and OP No.1 after done the repair has not informed the complainant to take back the said bike and in that regard both parties failed to produce any documents.

 

15.   On perusal of job-cards, problems in the alleged vehicle persisted despite of service made by OP No.1.  But it is the complainant who approaches the Forum he has to prove the manufacturing defect or any other defects by producing cogent evidence or of any expert opinion nor examining any authorized automobile engineer and failed to do so. The OP has produced job-card, service invoice and tax invoice in all 15 documents as per Annexure-C.  On perusal of job-card dated: 26.09.2017 it reveals that, the said vehicle has successfully ran a distance of 17,663 kilometers from the date of purchase of the vehicle i.e., on 07.11.2016.  If any defect is found in the vehicle it would not have been run so much of distance, which clearly establishes that, there is no any manufacturing defect in the alleged vehicle.  The said defects as alleged by the complainant are due to non-maintenance of the vehicle by the complainant as the complainant has not taken for 3^rd and 4^th service at the authorized service center of OP No.2 and the alleged defects arised.  Now at this juncture it is relevant to state here that, in the first and second service job-card the complainant has not at all stated any defects or problem found in the vehicle. 

 

16.   On perusal of Exhibit-C.5 delivery note and Exhibit-C-8 vehicle delivery check list produced by the complainant are dated: 07.11.2016 wherein on that date the complainant has took delivery of the said alleged vehicle.  On perusal of service invoice Exhibit-C.6 dated: 30.11.2016 the complainant has left the vehicle at the service center at OP No.1 and changed oil filter and engine oil, but the complainant did not say, for what purpose he took the vehicle and what was the problem at that time.  On perusal of Annexure-A service invoice dated: 01.12.2016 the complainant has left the vehicle and again engine oil and oil filter were changed and by that time the vehicle ran 429 kilometers.  The complainant has left the vehicle for first service on 26.11.2016 at 429 kilometers.  The complainant has left the vehicle for second service on 02.02.2017 at 4209 kilometers and between the first and second service, the vehicle had ran about 3,780 kilometers in 2 months 5 days.  Thereafter the complainant has not taken 3^rd and 4^th service and he left the vehicle for repair but the complainant has not stated when exactly he left the bike with OP No.1.  On perusal of the job-card dated: 26.09.2017 the vehicle had successfully ran 17,663 kilometers, in between 02.02.2017 second service to 26.09.2017, the vehicle ran 13,454 kilometers in seven months.  Further on perusal of job-card dated: 02.08.2017 the vehicle ran 11,922 kilometers and the job-card dated: 26.09.2017, wherein the vehicle ran 17,663 kilometers in an average of 6711 kilometers in one month 28 days.  The alleged bike had run an average of 250 kilometers per day.  On looking to these facts the complainant enjoyed the service of the said vehicle successfully.  The above said facts reveals that, the complainant has extensively used the said vehicle and which clearly establishes that, the said vehicle has no any manufacturing defect.  If any manufacturing defect is found the alleged vehicle would not have been run successfully cover a distance of 17,663 kilometers.

 

17.   The above said material facts establish that, the complainant has used the said bike extensively without proper maintenance and the above bike suffers from defects.  The manufacturing defect would be a defect without which the vehicle could not function but here in this case the vehicle is in running condition and the question of manufacturing defect does not arise.  The extensive use of the vehicle is one of the relevant factors to be considered to show the negligence of the complainant in maintaining the alleged vehicle and the complainant is not entitled for any compensation.

 

18.   On perusal of Exhibit-C.7 the letter of OP No.1 dated: 09.11.2017 it reveals about the defects as contended by the complainant and the OP has to rectify those defects in two months time, and thereafter the complainant did not take delivery of the said bike and he left the said bike with OP No.1 and the complainant has abandoned the said vehicle.  As per the contention of the OP No.1 the said bike was ready.  The complainant did not stated, when he left the vehicle with OP No.1, in this regard he has not stated neither in the complaint nor in his affidavit evidence.  As per Exhibit-C.7 it reveals that, the complainant left the vehicle with OP No.1 on or before 09.11.2017 and has not taken delivery of the said vehicle till the direction issued by the forum dated: 28.09.2018.  On perusal of the above said facts, it reveals that, the complainant has left the new alleged bike with OP No.1 for about 11 months and the said vehicle was unused.  The said abandonment is entirely to the disadvantage of the complainant.  The OP No.1 has done the repairs whenever the alleged vehicle left with OP No.1 dealer.  Hence as discussed about there is no any deficiency in service on the part of the OPs as alleged by the complainant.

 

19.   Now it is relevant to state here that, on perusal of the complaint, the complainant has stated that, the cause of action arose on 09.11.2017 on the letter of OP No.1 i.e., Exhibit-P.7.  In the said letter OP No.1 has agreed to rectify the defects as alleged by the complainant in two months time, but the complainant did not took delivery of the said vehicle though the said vehicle was ready for delivery and the complainant abandoned the vehicle.  Such being so, how the complainant blame the OPs for deficiency of service on the said date of cause of action.  The said letter Exhibit-C.7 dated: 09.11.2017 does not give raise cause of action.  The complainant without looking to the contents of the Exhibit-P.7 the complainant has filed this complaint which is premature and there is no any deficiency of service as on that date of the said letter Exhibit-C.7.  The cause of action arise only when the complainant took delivery of the vehicle and thereafter only he will know about the defect is still persisted or not but the complainant without taking delivery of the alleged bike has filed this complaint on 24.02.2018 and as on that date there is no cause of action arise for deficiency of service.  The complainant took delivery of the alleged bike after issuing direction by the Forum dated: 28.09.2018 and there is no cause of action arises as on the date of filing of the complaint.  On perusal of Annexure.E the date: 12.09.2018 found in Annexure-E is not acceptable and the same is wrongly noted in the said document in view of the order of the Forum dated: 28.09.2018. 

 

20.   The cause of action means action for which OP is answerable.  The cause of action must discloses the deficiency in service i.e., right to sue and the right of immediate occasion for the action.  But here in this case, right to sue of the immediate occasion for cause of action arises only on taking delivery of the vehicle.  Hence here in this case on hand the complainant has not taken delivery of the alleged vehicle as on the date of filing of the Consumer Complaint to know about the deficiency of service on the part of the OPs as on 09.11.2017 and there is no cause of action arises for the complainant to file this complaint.  The complaint filed by the complainant is pre-mature and is not maintainable.  Hence under these circumstances as discussed above I answer Point Nos.1 to 3 are in the Negative.

 

POINT (4):-

21.   In view of the above findings on Point Nos.1 to 3 and the discussions made on, I proceed to pass the following:-

ORDER

01.   The complaint filed by the complainant is dismissed as not maintainable.  No order as to costs.

 

02.   Send a copy of this order to both parties free of cost.

 

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 05^th DAY OF JANUARY 2019)

 

 

 

 

LADY MEMBER                                PRESIDENT