Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.50/12.032018
Gaurav Sharma son of Mr. Bal Kishan Sharma,
r/o Type-1, Quarter Number 16, P&T Colony, Dev Nagar,
Near Sai Baba Mandir, Karol Bagh, New Delhi-110005 ...Complainant
Versus
OP1: M/s Torque Bikes Pvt. Ltd. through its Manager
T-2531, Faiz Road, Karol Bagh, New Delhi-110005,
OP2: DSK Motowheels Pvt. Ltd.Gandharva Heights,
through its Manger/ Office 1st Floor, Survey No. 1693-1,
Bhamburda, Near Rahul Talkies, Shivaji Nagar, Pune-411016 ...Opposite Party
Order Reserved on: 09.01.2023
Date of Order: 02 .02.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member (Female)
Inder Jeet Singh
ORDER
1. The consumer dispute in the present complaint is that complainant Gaurav Sharma purchased DSK Benelli Bike from OP1 (M/s Torque Bikes Pvt. Ltd), who is dealer of OP2 (DSK Motowheels Pvt. Ltd.), after its advance booking with OP1 and OP2, however, not only the said bike was defective but also there is unfair trade practice and deficiency in the services as many defects could not be corrected despite several visits and attempts. The vehicle was not repairable and that is why complaint was filed either to replace it with new bike or to refund the amount of Rs. 2,23,923/- apart from damages of Rs. 7,00,000/- towards mental torture, harassment, agony and other losses and costs of Rs. 50,000/-. Whereas the complaint was opposed by OP2 that there was no negligence or any deficiency on its part, it was OP1, who was responsible for all services after sale of the vehicle. There was no manufacturing or other defect in the bike sold. There was no expert opinion obtained by the complainant, despite he was in possession of the bike. The OP2 had always rendered his necessary services, it cannot be termed deficiency in services.
2.1. The salient features of case of the parties are that on 08.12.2018, the complainant booked Benelli TNT 25 Bike from OP1 (vide booking order dated 08.12.2017 on the prescribed booking form of OP1 and OP2 under their joint name/logo (being Annexure-1, specifically printed covenant that cancellation amount will be Rs. 5,000/-). The complainant was assured that delivery of latest built bike will be in a few days and it was 14.12.2017 when complainant paid the total price of bike, being Rs. 66,034/- from his own account and remaining amount was after borrowing loan from Yes Bank (as detailed in loan document with repayment schedule- Annexure-2). The OP1 had issued tax invoice dated 14.12.2017 (Annexure-3, showing engine no. BJ172MM-A6801545 and frame no. MERTN251262K00722 of bike as well as other detail that there were road tax & registration of Rs. 22,620/-, insurance of Rs. 5,363/- but discount was 'nil'). After receipt of entire price of bike, it was 15.12.2017 when the complainant went to show-room of OP1 to receive the delivery of said bike, however, it was told to him that only one bike unit was left and this bike unit was in display in the showroom. There were some scratches on the body and some body parts were in broken condition, when complainant pointed out that it was not a fresh piece of bike and there are many defects on the body of bike, OP1 through its salesman insisted to take the delivery of that unit as no other unit is available and also emphasizing that it was a latest manufactured piece, the defects appearing would be replaced by giving an assurance in writing (Annexure-4 to the complaint) by mentioning in detail, Bike-Benelli-TNT-25, white colour having Chassis no. MERTN251262K00722. By considering those assurance as well as there is no other defect in the said bike, the bike was taken by the complainant. But later-on when the insurance policy was supplied to the complainant by the OP1, it was showing model of 2017 but Chassis no. 87114010 [instead of other number mentioned in the cash memo/Annexure-3 & assurance in writing/Annexture-4], it was pointed out to OP1.
The complainant started facing some problem while driving the bike and also major problem in clutch and gear, which got stuck many time while driving the bike apart from issue of battery, when it was also pointed out to the OP1, it assured that care will be taken at the time of first service. Then on first service of 18.12.2017 at the OPs’ service centre (Annexure-5 to the complaint), the complainant hoped that after service the bike will run smoothly but it was giving the same problem as before. On 01.01.2018 the complainant faced a major defect in the bike as the bike RPM was fluctuating abnormally and battery of the bike drained abnormally, complainant was unable to start the bike, he was on strange road from his home, he called DSK Benelli road side assistance by dialing no. 1800 209 6660, who attended it with an advice to visit the OP1. On next day, complainant went to OP1/authorized service centre, the bike was checked in haste with an advice that battery was not defective and vehicle was fit to use, the abnormalities of fluctuation in RPM was just addressed under the pretext of tightening the loose wire. Whereas, on 11.01.2018, there was again same trouble of starting the bike and RPM fluctuations abnormally, road side assistance was called again but he was advised to visit the service centre and get battery changed as early as possible. On 12.01.2018, when complainant was to visit the service centre but bike did not start, he took road side assistance, to start the bike and he was advised to contact the OPs as soon as possible (the road side assistance work sheets of these dates are Annexure-6A,6B and 6C, in which battery default, abnormal problem of RPM, etc. was clearly mentioned, which were persistently troubling). The complainant took his bike to OP1, it was advised the battery is dead and it needs to be changed (Annexure-7 to the complaint is battery bill dated 19.01.2018 arranged by the OPs), however, the problem of stuck of clutch and gear and of abnormal fluctuations in RPM were not addressed. There is deficiency in the services by the OPs as despite visiting the OPs and its service centre, the complainant could not get appropriate services from the centre. It was 10.02.2018 when complainant received his registration certificate (Annexure-8), it shows bike is model of 2016 and it was not model of 2017.
2.2. The complainant felt him cheated by the OPs that an old bike of 2016 was sold to him under the garb of new bike, it is unfair trade practice , they tried to convince as if there is some error in the paperwork by emphasizing that bike was manufactured in 2017. The police was also called, however, the OPs maintained its own stand and also assured that they will rectify the defect in the bike. When again complainant was visiting the OPs, they started claiming there is no error in the RC as well as there is no defect in the bike. On 25.02.2018 when complainant was travelling on bike and when he was nearby Faridabad, the bike clutch and gear got stuck all of sudden and he met with a minor mishap; bike got hit by a truck from behind causing tail to break, the complainant escaped from physical injury but he obsessed of fear to drive bike. There is misconduct, unfair trade practice and restricted trade practice apart from deficiency in services and negligence on the part of OPs. He is a consumer. That is why the present complaint.
3.1. There is no reply by the OP1, in fact it remained abstained from the proceeding, that is why, it was proceeded ex-parte on 09.08.2018.
3.2. Whereas, OP2 by its reply opposed the complaint, firstly neither there was any negligence on its part nor any deficiency in services, since all best possible discount was also given on buying the bike by the complainant. The OP2 sells vehicle in bulk to its authorized dealers, such as OP1, it is OP1's responsible for sale and after services of the vehicle. There was no manufacturing defect in the bike sold to the complainant by OP1 nor any expert opinion was obtained by the complainant of manufacturing defect. The complaint deserves dismissal on these counts.
With regard to other allegations, there is composite reply to paragraph 1 to 7 of complaint, and separate reply to the other paragraphs. In nutshell, the bike was of model 2016, it was a display unit in showroom and it was also told to the complainant, he was also given best possible discount. He also filled in customer feedback of 15.12.2017 (Annexure-R1 to reply). There was only defect of few scratches the bike was suffering at the time of sale (being a display unit) but the complainant was given best possible discount and premium facilities free of cost. In fact, after 15 days of delivery of bike, the complainant wanted to replace the bike from OP1 as there was problem in clutch and gear, however, on inspection it was discovered that problem of clutch and gear was because of fallen of the bike. Battery was found to be in running condition and OP1 had assured to replace the battery being under warranty. The complainant had also shown his satisfaction of service as well as working of battery by endorsing it on the service slip (Annexure-R-2 and R-3). On 12.01.2018 the battery of bike was replaced. Later-on at the time of visiting of the complainant at service centre on 19.01.2018 and 31.01.2018 with complaint of ignition lock and over-heating, the same were found to be functioning properly and there is also satisfaction note by the complainant (as Annexure- R-4 and R-5). The OP2 denies other allegation of the complaint with request to dismiss the complaint.
4. The complainant filed replication to the reply of OP2, he refers documents/annexure filed with the complaint to reaffirm the complaint as correct as well as the job sheets were clearly endorsed in respect of persistence of problems in the bike and allegations in the reply were denied by him.
5. At the stage of evidence, the complainant filed his affidavit, while re-asserting all the documents filed with the complaint to establish his case. On the other side OP2's Chairman, Shri Shrish Kulkarni files his affidavit by briefly narrating the facts limited to the extent that the relation between the OP1 and the OP2 is of authorized dealer and of a vendor company, OP1 is not agent of OP2. There is relationship of customer and dealer between the complainant and OP1 respectively. OP1 was responsible for sale and after sale services, even to complainant. OP2 had some documents were annexed with its reply but those documents were not led in affidavit of evidence.
6. At the stage of final hearing, both the complainant and the OP2 filed their written arguments, which also refers certain case laws by their names but without citation of reporter. They were also given opportunity to make oral submissions, however, it is complainant who came forward to make oral submission but no oral submissions were made on behalf of OP2. However, the plea taken in evidence and in written argument will be considered.
7.1. (Findings): The case of both parties is considered keeping in view their respective plea and evidence. Some of the issues have been raised by the OP2 with regard to inter-se relation of OP1 and OP2 as well as the relationship of complainant and of OP1, it will also be adjudicated.
7.2: By considering the averments in the complaint. reply of OP2 and the documentary record, there is no dispute that complainant had booked motor bike with the OP1 on prescribed booking form under logo of OP1 and of OP2. Thus, the relationship of the complainant and of OP1 respectively as a customer and a vendor of bike is not disputed.
The OP2 is projecting that OP1 is an independent entity and after selling of bike in bulk quantity, the role of OP2 is over. While coming straight way on the order booking form dated 08.12.2017 (Annexure-1), as well as to the service memo (Annexure-5) & job sheets of the services (Annexure- 6A, 6B and 6C), it is also in the name of OP2. It is also well known that the RTO registers vehicle on recognition of manufacturer of motor vehicle as well as invoice of authorized. Therefore, for the purposes of present complaint the role of OP2 cannot be treated over, since booking of luxury bike was on prescribed form was both by OP1 and OP2.
7.3: The invoice dated 14.12.2017 was issued by the OP1 and the invoice was of ex-showroom of bike and invoice also includes charges of road tax, registration and insurance charges, it means the insurance policy of bike was obtained by OP1, the insurance policy is also of new vehicle but the chassis number mentioned in invoice and chassis number mentioned in the insurance policy is entirely different. Similarly, it is OP1 who got registered the vehicle with RTA, the Registration Certificate shows model 2016 but in the insurance policy the year of model was mentioned of 2017. It was OP1, who processed the documentary record and custodian of record, inclusive of issuing the cash memo and getting the vehicle registered and insured. It is OP1 who was knowing all about the model, chassis number, engine number since manufacturer supplies the vehicles under these specified numbers, which dealer cannot change. The year of model was not got corrected nor the chassis number, if the same under error despite pointed out by the complainant. Whereas, it was the duty of OP1 to get the insurance and vehicle registered as per the year of model and chassis number, since it had all record, information and also collected charges from complainant. In fact, from the reply of OP2 it is abundantly clear that bike was of model 2016 and not model of 2017, but it was sold as model of 2017 and also mentioned so for insurance cover.
7.4: The OP2 pleads for itself, ( and also for OP2, who had not appeared) that complainant was given discount on buying of bike, whereas the complainant has opposed it. It is an admitted fact by the OP2 that there was bike of model 2016 and it was a display unit and when complainant pointed out that there were scratches on the body of bike, then some broken parts were replaced ( viz. right side tail panel, front glass, 3M coating at workshop and first service with engine oil, being shown and reflected in Annexure-4 dated 15.12.2017). It is apparent on its face that in order to remove the scratches, these items of minor nature were replaced for broken part so as to sell the vehicle, it cannot be construed discount; otherwise discount was 'nil' as per entry in Invoice dated 14.12.2017 (Annexure-2). Since it was not an ordinary bike but luxury bike, the discount was not provided and bike was sold under booking with condition of cancellation charges of Rs.5000/-.
7.5: When the order booking form was filled for booking the bike by the complainant, it is printed booking Form of OP1 and OP2, there is also column of model of vehicle booked and in that column of model 'TNT 25 (white)' was mentioned and delivery of the bike was made on 14.12.2017, it was never disclosed to the complainant that model of bike to be delivered to him will be of 2016 and even after delivery of vehicle it was not disclosed that model is of year 2016, since in the insurance policy model mentioned was of 2017. But at later point of time, when RC was received, then complainant came to know that the model was of year 2016. In addition, OP1 pretended to complainant that there was some error in mentioning the model but plea of OP2 that it was actually model of 2016, expose OP1 that vehicle was sold as model of 2016 under projection of model of 2017. Moreover, in the Invoice (Annexure-2) and in the insurance policy chassis number mentioned are different and at the time of delivery on 15.12.2017 the chassis number mentioned was as of chassis number mentioned in invoice/ Annexure-2.
7.6: The complainant has given the details of different problems in the bike from the very inception, which were in its clutch, gear, abnormal RPM, battery as well as it was stuck all of a sudden on the road and that is why road side assistance was taken from OP2 from time to time. The OP2 took a plea that after 15 days of delivery from 15.12.2017, the complainant came for getting replace the bike but it was found that the bike had fallen, however, this plea has not been established on behalf of OP2. There were many repair jobs done to bike in the service centre of OPs apart from road side assistance, in none of job-sheet it was recorded that bike had fallen and defect emanated from such falling within 15 days of purchase of bike. The complainant himself explains that it was 25.02.2018, (which after 71 days from the date of purchase of bike), when he was travelling nearby Faridabad and he met with a minor mishap, when clutch and gear of bike got stuck suddenly. Then he developed scared to drive the vehicle thereafter.
7.7: The aforementioned circumstance clearly demonstrates that complainant has faced many severe situations after buying the said bike as from the very inception, he was delivered vehicle of model of 2016 despite the booking was of 2017, there was no specific agreement between the parties that vehicle of 2016 was to be bought by the complainant or a display bike unit. Further, there were regular and persistent problem in engine, clutch, gear, abnormal fluctuation in RPM etc. The complainant has made reference of some cases in written arguments, without citations, that this type of situation is deficiency in service as well as unfair trade practice, one of the cases [Hyundai Motors India Ltd. vs Affiliated East West Press Ltd., I (2008) CPJ 19, (NC).] is that when the new luxury car was required repair repeatedly, defects could not be rectified and it was held deficiency in services. The other cases referred by him are (1).General Motors (India) Pvt. Ltd. vs. Ashok Ramnik Lal Tolat & Anr. (2). HRBM Automobiles Pvt. Ltd. vs Iqbaljit Singh Punia in Revision Petition No. 449 of 2016, (3). B. Shai Reddy vs ICICI Lombard General Insurance Co. Ltd. & Ors. Reported IV (2015) CPJ 185 (NC), (4). M/s Tata Motors Ltd. vs Sharad & Anr. ,(5). M/s Honda Siel Cars India Ltd. vs Rohit Jain & Anr.
Whereas, on the other side, the OP2 has contended that there was ordinary defect and it could be got rectified by replacement of parts and complainant has to establish his case by cogent, credible and adequate evidence from the support of expert evidence, while relying upon certain case law (1). Force Motors Ltd. vs Divine K.R., (2). Skoda Auto India P Ltd & Ors. Vs Bhawesh Narula 2015, (3). Sushila Automobiles Pvt. Ltd. vs. Dr. Birendra Narain Prasad & Ors. and (4). Maruti Udyog Limited vs Hasmukh Lakshmi Chand.
However, answer to this rival contention inherent in material available. The trouble of clutch, gear, abnormal RPM, including stuck of vehicle all of sudden on road, emerged immediately after buying of the bike by the complainant and it had persisted continuously whenever the complainant was riding the bike, which he had bought for his comfort and his luxury, the vehicle was shooting the trouble despite various road assistance as well as visit at the service station of OP2. If there were ordinary defects, then why the same were not rectified & the complainant had been repeatedly visiting to get it rectified. The circumstances described by the complainant clearly show that driving of this bike on road was to safety & life risks to him and other others. The preponderance of probability are in favour of complainant and against the OPs, as generally it does not happens for new vehicle to visit repair clinic repeatedly immediately after buying of new vehicle. It would not help the OPs to lesser their obligations that feedback form was showing satisfactory, since such feedback form pertain to entertaining the person and attending the task, it does not exonerate from actual task of removing the defects.
7.8: It is not just a case of defect in the bike but there are other material aspects like chassis number actually existing on the bike as well as the chassis number mentioned differently in the cash memo or in the insurance policy, which have also certain legal consequences. Because of mismatch of chassis number on body of bike and in the cash memo or in insurance policy may start another round of trouble for the complainant in certain situations. There is also issue of model of bike mentioned as 2016 in the registration certificate but the complainant was sold that bike as model of 2017. which was also got mentioned in the insurance policy arranged by OP1; it has also certain consequences. As a matter of fact when the booking was made in 2017, it was not for model of 2016. These aspects cannot be ignored nor OPs will escape from their obligation, under the plea of OP2 that there was no expert opinion obtained by complainant in respect of defect in the bike.
7.9: By taking into account stock of all these circumstance, the complainant has succeeded to establish his complaint of unfair trade practice and deficiency in services and he cannot continue to keep that defective bike with him at his risks and other consequences. Therefore, he is held entitled for refund of Rs. 2,23,923/- in lieu of defective bike, however, OP1 will take back the defective bike now bearing registration no. Benalli TNT 25 (DL 6SAY 1563) from complainant under acknowledgement and complainant will also hand it over to the OP1.
7.10: The circumstances are also speaking volumes that not only the complainant faced certain traumas, harassment, inconvenience but also may confront with other legal consequences because of different chassis number and model of bike mentioned in the documentary record, apart from facing other risks during driving of defective bike on road and taking it to service centre for repairs, he is held entitled for compensation of Rs. 30,000/- and also cost of litigation of Rs. 5,000/- and on these terms the complaint stands allowed.
8. Accordingly, the complaint is allowed in favour of complainant and against OP1 and OP2 jointly and severally, while directing them to pay an amount of Rs. 2,58,923/- (viz. refund of Rs. 2,23,923/- of price of bike + damages of Rs. 30,000/- + costs of Rs. 5,000/-). However, the complaint shall return the bike to OP1 under acknowledgement while making the payment.
The OPs shall pay the amount within 30 days from the receipt of this order. In case the OPs do not pay the amount within the 30 days from the receipt of order, the OPs will be liable to pay interest at the rate of 6% pa from the date of filing of complaint till its realization.
9. Copy of this order be sent/provided forthwith to the parties free of cost as per regulations.
10: Announced on this 02nd day of February, 2023 [ माघ 13, साका 1944].
