Delhi

North

CC/192/2021

SACHIN MITTAL - Complainant(s)

Versus

M/S. RAJPOOT MOTORS - Opp.Party(s)

PRAVEEN SHARMA

17 Sep 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No:192/2021

 

IN THE MATTER OF:

 

Sh. Sachin Mittal,

S/o Sh. Amar Chand Gupta,

House No.123, 2^nd floor,

E-Block, Gandhi Vihar,

Near Mukherjee Nagar,

Delhi-110009.                                     …                          Complainant

 

Vs

 

M/s Rajpoot Motors

Plot No.738/1, Main 100 foota road,

Near Govt. School, Opposite MTNL office,

Burari, Delhi-110084.

Through its Authorized Representative.

 

Also at:

Kh.799/2, 41 futa road,

Burari, Delhi-11004.                           …                          Opposite Party No.1

 

M/s TVS Motor Company Limited,

Regd. Office. “Chaitany”, No.12,

Khander Nawaz Khan Road,

Nungambakkam, Chennai-600034

Through its Director/ Authorize Representative.

 

Also at:

Corporate office:

D-3 & D-4, 2^nd floor,

Sector-10, Noida-201301,

Uttar Pradesh.                                    …                           Opposite Party No.2    (deleted from the array of the parties on 14.12.2021)

 

ORDER

17/09/2024

 

Ashwani Kumar Mehta, Member:

 

1.       The present complaint has been filed under Section 35 of the Consumer Protection Act, 2019. The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that the complainant is owner of Motorcycle TVS VICTOR with Registration No. DL 3S DD 8031 having purchased on 24/05/2016. The Opposite Party is authorized dealer of TVS Motorcycles carrying on its business of sale & service of selling TVS motorcycles. On 02/09/2019, the Complainant visited the service station of the Opposite Party to get service of his motorcycle, when the Opposite Party offered him an Annual Maintenance Contract (AMC) thereby assuring quality service at all times. The Complainant believing the representation and assurance of the Opposite Party agreed to take Annual Maintenance Contract bearing No.1118 dated 02/09/2019 [Exhibit CW1/3] for service of his motorcycle TVS VICTOR bearing Registration No. DL 3S DD 8031.

 

2.       Thereafter, the OP-1 serviced the vehicle of the Complainant as per following details:

Sl. No.	Particulars
1.	First Service -Bill No.7564 dated 02.09.2019 for Rs.1,773/-
2.	Second Service- Bill No.8567 dated 06.12.2019 for Rs.1,457
3.	Third Service -Bill No.11771 & 11772 dated 20.03.2020 for Rs.305/- and Rs.479 respectively
4.	Fourth Service – not provided due to Covid-19 lockdown
5.	Fifth Service- Bill No.3352 & 3353 dated 01.12.2020 for Rs.683/- and Rs.190/- respectively
6.	Repair- Bill no.6210 dated 09.04.2021 for Rs.110/-

 

 

3.       It has been stated that the bike in question i.e. Motorcycle TVS VICTOR comes with wet clutch technology which is widely used in motorcycles and dirt bikes. In wet clutch technology the clutch connects the engine and transmission via a series of alternating friction and steel plates, further the clutch is lubricated with oil, as opposed to a dry clutch thereby widening the friction zone and making it easy and proper clutch operation. In wet clutch technology, the engine oil plays a vital role, since engine oil formulation influences the dynamic friction i.e. "clutch feel", further engine oils with incorrect frictional properties or formulation can result in inconsistent or "loose" clutch feel thereby effecting the performance of engine. If the engine oil is not correct then it reduces the efficiency of motorcycle like start without cutting out or start quickly thereby effecting the pick-up, further good engine oil also contributes to the holding power or static friction, between the plates, once the clutch lever has been let all the way out. The engine oil with incorrect frictional properties can allow the plates to slip in some circumstances resulting in lost power / grip with the ground thereby increasing chances of slip. The key to wet clutch technology is to use a lubricant specifically formulated for wet clutches which are made with the correct frictional properties to promote smooth shifts and consistent clutch feel while guarding against wear for long clutch life thereby increasing the performance and safety of the motorcycle. Therefore, considering the wet clutch technology, the manufacturer of motorcycle i.e. M/s TVS Motor Company Ltd. has specifically recommended using of only "TVS TRU4 PREMIUM SEMI SYNTHETIC 4T ENGINE OIL API" or any other equivalent 4T engine oil suitable for wet clutch motorcycle, which fact was always well within the knowledge of the Opposite Party since it is authorized dealer of TVS motorcycles. However, after First Service on 02/09/2019, the Complainant found that performance of motorcycle has declined as there were issues in starting bike, decrease in mileage, excess smoke emissions, engine overheating etc. which were duly intimated to Opposite Party, however, the Opposite Party gave false assurances there by asking the Complainant to be patient as after sometime motorcycle will start performing at normal level which never happened. Thereafter, on 06/12/2019, at the time of second service the Complainant once again reminded to the Opposite Party about the poor performance of motorcycle after its first service. The Opposite Party changed certain parts of motorcycle and assured that the Complainant that now the motorcycle shall not show any problems and will perform smoothly, however the assurances given by the Opposite Party turned out be false promise since the technical problems with motorcycle persisted. After third service on 20.03.2020 the Opposite Party No.1 once again gave false assurance to the Complainant as the problems with motorcycle persisted. As per Annual Maintenance Contract the fourth service was due on 12.06.2020, however, due to Covid-19 lockdown the Opposite Party No.1 refused to provide fourth service. However, on 01.12.2020, the Opposite Party No.1 performed fifth service of motorcycle and changed certain parts of motorcycle, however, even after fifth service also same problem persisted. After numerous complaints made by the Complainant, the Opposite Party No.1 on 09.04.2021 repaired the motorcycle by changing certain parts, however, the faults persisted and motorcycle continued to perform below par.

 

4.       The Complainant has further alleged that in February-March 2021 the Complainant got bike in question examined from nearby motor mechanic, when the Complainant was shocked to discover that since September 2019 i.e. from first service onwards the Opposite Party has been using wrong engine oil in service of motorcycle whereas the manufacturer of Motorcycle TVS VICTOR has strictly recommended specific engine oil i.e. "TVS TRU4 PREMIUM SEMI SYNTHETIC 4T ENGINE OIL API" or any other equivalent engine oil suitable for wet clutch technology motorcycle. However, the Opposite Party on each service used wrong engine oil i.e. "TRU4 SKUTTA ENGINE OIL" which engine oil was technically not to be used for motorcycle with wet clutch technology which is apparent from the warning mentioned on packing of the said engine oil TRU4 SKUTTA ENGINE OIL i.e. "STRICTLY NOT TO BE USED IN WET CLUTCH MOTORCYCLE ENGINE".

 

5.       It has further been alleged that use of wrong engine oil can cause various technical problems in bike such as spark-plug fouling, exhaust port blockage, overheating, smoke emissions, less mileage, clutch plate wear & tear, piston wear & tear, harder gears, increased engine vibration etc. and the Complainant was facing similar problems in his motorcycle after getting it serviced from the Opposite Party as is apparent from Photographs of damaged motorcycle are exhibited as Exhibit CW1/11 (Colly). The Complainant brought the fact of use of wrong engine oil to the knowledge of the Opposite Party but it failed to give any satisfactory explanation for the said negligent and irresponsible act. Thereafter, since the bike was giving recurring problems, on 22/10/2021, the Complainant went to OP-1 to get an estimate for complete repair of motor bike and OP-1/ authorized dealer upon inspection gave an Estimate amount to Rs.23,357/- for complete repair of motor bike, and the said motor mechanic/ authorized dealer also charged estimate & inspection charges amounting to Rs.150/- vide Invoice No.6775 dated 22/10/2021. The Complainant, thereafter, sent a Legal Notice dated 21/06/2021 to the Opposite Party and manufacturer of TVS motorcycle thereby requiring them to pay/ refund amount paid by the Complainant to the Opposite Party i.e. Rs.5,500/- (inclusive of interest @ 18% p.a.) and Rs.2,00,000/- as compensation for causing mental agony & harassment suffered by Complainant along with legal charges of notice amounting to Rs.5,500/-, however, the Opposite Party failed to comply with the terms of said notice.

 

6.       It has also been alleged that there has been deficiency in service as well as negligence on the part of Opposite Party since the Opposite Party being Authorized dealer of TVS motorcycles is well conversant of the fact that in "wet clutch technology" "TVS TRU4 PREMIUM SEMI SYNTHETIC 4T ENGINE OIL API" or any other equivalent engine oil is suitable for wet clutch technology motorcycle. However, the Opposite Party on each service used wrong engine oil i.e. "TRU4 SKUTTA ENGINE OIL" which engine oil is technically not to be used for motorcycle with wet clutch technology which is apparent from the warning mentioned on packing of the said engine oil TRU4 SKUTTA ENGINE OIL i.e. "STRICTLY NOT TO BE USED IN WET CLUTCH MOTORCYCLE ENGINE". However the Opposite Party used the wrong engine oil i.e. "900 ml TRU4 SKUUTA" thereby causing damages to the bike in question. Therefore, this complaint has been filed praying for directions to OP to:-

1. refund a sum of Rs.5,500/- (inclusive of interest @ 18% p.a.) towards service and repair charges to the Complainant.
2. pay a sum of Rs.25,000/- towards cost of repairing the bike to the Complainant.
3. pay a sum of Rs.5,00,000/- towards compensation for mental agony & harassment suffered by the Complainant.
4. pay litigation charges of present complaint to the Complainant and

Any other order/s which the Commission may deem fit and proper in facts & circumstances of the case in favour of the Complainant and against the Opposite Parties.

 

7.       The Complainant has also filed true copies of RC of TVS Victor, bearing registration NO.DL3SDD8031, Aadhar card of Complainant, Annual Maintenance Contract No.1118 dated 02.09.2019 and copies of TVS Bike Manual, Bill No.7564 dated 02.09.20219 for first service, Bill no.8567 dated 06.12.2019 for second service, Bill Nos. 11771 & 11772 dated 20.03.2020 for third service, Bill Nos.3352 & 3353 dated 01.12.2020 for fifty service, Bill No.6210 dated 09.04.2021 for repair, Estimate Invoice No.98 dated 22.10.2021, Invoice dated 21.06.2021, mails exchanged between the parties, photographs of motor bike and cover photo of engine oil used by OP-1 alongwith complaint.

8.       Accordingly, notice was issued to the OP-1 to defend the complaint before the commission but the OP-1 neither appeared nor did send any communication despite service of the notice. However, the OP-2 was deleted from the array of parties vide order dated 14.12.2021 as no manufacturing defect was alleged. Since the OP-1 has chosen not to contest the allegations levelled in the complaint despite service and has been proceeded Ex-parte, the allegations made by the Complainant have remained un-rebutted. However, to obtain technical expert opinion, the bike in question was sent to Sir C. V. Raman ITI, Dheerpur, Delhi. The Technical Expert Committee after inspecting the bike furnished its report dated 10.07.2023 which has also been taken into consideration to decide the consumer dispute suitably.

9.       The complainant has filed evidence by way of Affidavit. Since the OP-1 has chosen not to contest the allegations levelled in the complaint despite service, it is considered as deemed acceptance of the allegations of deficiency of service and harassment to the complainant. Therefore, the complaint has been examined on the basis of the documents/evidences and material available on records and it has been observed that as per Registration Certificate (Ex.CW1/2), the bike was purchased on 24.05.2016. Although the Technical Expert Opinion has recommended that the bike be sent to Automotive Research Association of India’s Vehicle Evaluation Laboratory or Automotive Materials Laboratory to rule out for any material quality manufacturing defects", it has been noticed that there were no defects or problems in the bike till 2019, the defects occurred only after the Complainant signed AMC with the OP-1 and started getting bike serviced from the Opposite Party No.1 in 2019 onwards. Therefore, we considered this fact and observed that under given facts & circumstances, there was no manufacturing defect till 2019 and therefore, there appears no requirement to get the bike examined from Automative Research Association of India’s Vehicle Evaluation Laboratory or Automotive Materials Laboratory.

10.     On the aspect of allegations levelled in the complaint, it has been observed that:-

1. As per copy of the Registration Certificate filed with the complaint, the Complainant is second owner of the vehicle and obviously, he must have purchased the vehicle from the first owner after examining the fitness and working condition of the vehicle. As such, the vehicle was working perfectly at the time of its purchase by the Complainant from 1^st owner, therefore, the possibility of any manufacturing defect in the vehicle is ruled out.
2. The Complainant has concealed this fact completely and has very cleverly filed complaint alleging deficiency in service against OPs, on the basis of purchase of Annual Maintenance Contract No.1118 dated 02.09.2019. A copy of the AMC registration form filed at serial No.3 of list of documents (pages 14 to 17) does not bear any stamp of the dealer to corroborate that this AMC contract was executed by the OPs with the Complainant. Further, three pages, relating to maintenance of the vehicle, enclosed with AMC No.1118 at page Nos.15, 16 & 17 at the list of documents, also display numbering printed at the bottom of pages as page nos.31, 32 & 33 which appear to be pages of the booklet which has not been filed with the complaint to conclude as to whether these pages are  part of the Annual Maintenance Contract referred to the complaint. Further no terms and conditions relating to this AMC have been filed with the complaint.
3. It has also not been made clear as to whether this AMC was purchased against payment of any consideration because the Complainant has neither filed any proof of payment nor prayed for any refund for the payment made for purchasing the AMC.

 

11.     We have also gone through the Technical Report/Opinion furnished by the Expert Committee of Sir C.V. Raman ITI, Dheerpur, Delhi which states that “the problem of pickup i.e. poor acceleration as reported by the customer was examined. As per the company’s claim and technical examination conducted by the committee, the following points are mentioned:-

1. The said motor cycle TVS DL 3S DD 8031 is fitted with Wet Clutch technology. Wet clutch is bathed in engine oil for heat dissipation and lubrication and is located inside the engine casing. It is a multi-plate assembly and is used in high torque applications as the lubricant (or oil) dissipates the heat arising from the friction between  the plates. The wear and tear and maintenance are relatively low although, due to lubrication, the torque transmitting capacity is slightly reduced.
2. As per the invoice bills of M/s Rajdoot Motors the oil used for servicing the said motor cycle was 900 ml of TRU4 SKUUTA.

 

In case of using wrong or insufficient viscosity oil, an engine can have several side effects some of which are given below:

1. Poor lubrication
2. Increased engine wear - wear on critical parts such as pistons, bearings and camshafts.
3. Overheating that can cause damage to engine parts and reduce overall performance.
4. Reduced fuel efficiency

 

12.     From the above report, it has been proved that the 900 ml of TRU4 SKUUTA has been used in the vehicle. The Technical Report/Opinion has elaborated side effects of using this oil but the photographs of the vehicle filed alongwith the complaint demonstrate that the vehicle is affected with the “Corrosion/ Rust” and the expert committee has also not opined as to whether the use of wrong oil has caused this “Corrosion/ Rust”. It implies that the Rust/Corrosion is not the side effect use of wrong oil. Moreover, the photographs filed alongwith the complaint does not bear any registration plate or chassis number to confirm that these photographs are of bike no. DL 3S DD 8031. Therefore, it would be unjust to conclude that the condition of the bike in question, as displayed in the photographs, is due to the use of oil 900 ml of TRU4 SKUTA.

13.     However, Expert Opinion Report confirms that the wrong oil has been used which has effect of “Poor lubrication, Increased engine wear - wear on critical parts such as pistons, bearings and camshafts, Overheating that can cause damage to engine parts and reduce overall performance and Reduced fuel efficiency on the bike” for which the Complainant has paid Rs.4,997/- as per the details available at Para 2 of this order and as such,  the OP-1 is liable for deficiency of service on this part.  Therefore, we feel appropriate to direct the OP-1 to Refund Rs.4,997/- to the Complainant with 9% p.a. interest from 22.11.2021 (date of filing of this complaint) till the date of the payment within thirty (30) days from the date of receipt of this order.

14.     The deficiency of service on the part of the OP-1 has also caused mental tension, agony and harassment to the Complainant for which the OP-1 is liable to pay Rs.5,000/- to the Complainant within thirty (30) days from the date  of receipt of this order.

15.     The OP-1 has not contested this complaint before this commission despite proper service and therefore, a cost of Rs.10,000/- is imposed upon OP-1 out of which Rs.5,000/- shall be paid to the Complainant and Rs.5,000/- (Rupees Five Thousand Only) to be deposited in the Delhi State Consumer Welfare Fund (L/ Aid) maintained by Delhi State Consumer Disputes Redressal Commission [SB A/c No. 10310544717; Bank and Branch: State Bank of India, I P Estate, Delhi; IFSC: SBIN0018175]

16.     It is clarified that the aforesaid amount shall be paid by the OP 1 within 30 days as directed above at para 13, 14 & 15 failing which the OP-1 shall be liable to pay interest @12% per annum on the entire awarded amount from the date of expiry of 30 days period.

17.     Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

 

ASHWANI KUMAR MEHTA                                              HARPREET KAUR CHARYA

               Member                                                                                    Member      

       DCDRC-1 (North)                                                              DCDRC-1 (North)

 

                     DIVYA JYOTI JAIPURIAR

                        President 

DCDRC-1 (North)