DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this this 10th day of March 2023 .
Filed on: 06/09/2019
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C.No.340/19
COMPLAINANT
Firoz Mohamed, S/o Mohamed, Alungal House, H.No: 218, Kadampuzha Post, 676553.
OPPOSITE PARTIES
1 Srinivasan A.S, Royal Enfield Brand Stores, No.25/Abcd, Panakkal, Koonamthai, Edapally, Emakulam, India – 682024
2 Mahesh R. Area Manager - Service, Royal Enfield Brand Stores, No.25/ Abcd, Panakkal, Koonamthai, Edapally, Emakulam, India -682024.
(o.p1 and 2 rep. by Adv.Febin Mohammad, Rasjeed & Haris Associates, Deshabhimani Road, Keerthi Nagar, Kochi)
- Owner ABC Motors, Moochikkal, Tirur, Kerala, India, 676307.
(op.3 ex-parte)
- Head Office, Old No 3, New No Devi Kripa Near Fashion Folks, Besant Avenue Road Adyar Chennai, Tamil Nadu, India 600020.
(O.p 4rep. by Adv.Sharan Shahier, D-7, 2nd Floor, Door No.41/4262, Metro Plaza, Market Road, Ernakulam-18)
F I N A L O R D E R
D.B. Binu, President.
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the complainant purchased a Royal Enfield Classic 350 Gunmetal Grey - bike with Registration Number KL-55-X-5349 from the opposite parties. After purchase of the bike the complainant had faced several issues and whenever reporting the issues to the service centre, they would say it is common for the bike, and will get better over time. At last fed-up with the responses and unable to use the bike the complainant had to send mails to the customer support for getting issues resolved. The complainant was disappointed with the bike and sent a mail to Royal Enfield Support for refunding his money, but as they requested the complainant have given bike for almost 1 month in service canter for fixing the issues, and was somewhat good till the complainant 4th service which the complainant did from Royal Enfield Brand Stores, No.25/Abcd, Panakkal, Koonamthai, Edapally, Ernakulam. They had failed to put some screws on the back wheel, which led to the complainant bike becoming wobble more. So next day the complainant took it to the dealer and they kept the complainant bike for 2 weeks and fixed the issues, but again after riding 150 Kms, the bike started making issues, again after writing many mails and having discussions with managers from RE Mahesh, they told the complainant bike don't have any complaints, but the complainant showed them video proofs of the complaints, the opposite party again offered the complainant they would repair the complainant bike, which the complainant was not at all happy with, as the complainant had bad experiences from RE support. So, the complainant demanded refund, which they refused and the opposite party insulted the complainant on the face saying that they will sell the complainant bike and give 1,30,000. So, after 1 year the complainant took his bike for 5 th service and had paid around 3000 rupees, and took the complainant bike for pollution test, which failed.
- Front disc getting bent, they replaced it 3 times.
2. Rear Brake getting jammed and no power for rear brakes (less than 500 km.)
3. Front wheel wobbling issue (less than 3000 kms)
4. Rear Mud Guard and tire were touching.
5. Front disc brake Jamming issue (4500)
6. Handle was being over vibrating, they replaced front forks.
7. Wheel wobbling, Bike pulling towards left and won’t go above 60 kms.
8 Rest on various parts of the bike and Seat leather came out.
The complainant had approached the Commission seeking an order directing the opposite parties to refund Rs.1,73,665/ (Cost of the Bike plus extras spent on bike for repair), to pay Rs.50,000/-. as compensation for mental pain and agony sustained by the complainant on account of the deficiency in service by the opposite parties and the cost of the litigation.
2) Notice
Notices were issued from the Commission to the opposite parties 1 to 4. The opposite parties 1, 2, and 4 entered appearance and filed their joint versions in response to the notice received by them. The 3rd opposite party did not file their version. Consequently, the 3rd opposite party is set ex-parte.
3) JOINT VERSION FILED BY OPPOSITE PARTY NO. 1 & 2.
The claims urged by the Complainant are wholly malafide, and the entire application and the claims made therein are based on misrepresentation of the acts of the opposite parties. It is evident that the complaint has been filed by the Complainant with the sole intention of making undue benefit out of the answering opposite parties. The complainant used to put undue pressure on the opposite parties 1 & 2, the dealership to replace parts of his vehicle regularly or else he would complaint legally or publishes his views in social media stating him as an IT professional and an avid user of social media platforms. The opposite parties 1 & 2 focusing on customer satisfaction had constantly attended to the customer's complaints, but even several times the opposite parties 1 and 2 were constantly threatened by complainant about escalation of complaints to higher ups, if the parts which he seeks are not replaced. This was despite there being no issues with the vehicle. The opposite parties No. 1& 2, denies each and every contention, allegation and averments made in the Complaint, unless specifically admitted herein below. The averments of the complaint filed by the Complainant which is not specifically dealt with herein below should be deemed to have been denied. It is also submitted that the complainant has with ulterior motives made harass the opposite parties no. 1& 2 and the opposite parties l & 2 are not directly linked to matter as parties in the case to muscle them for a negotiation. Moreover, the opposite parties 1 and 2 is only an employer of above-mentioned company. There is no deficiency of services on the part of the opposite parties nor are they liable to pay any compensation as prayed for.
4) VERSION FILED BY THE 4th OPPOSITE PARTY
The claims urged by the Complainant are wholly malafide, and the entire application and the claims made therein are based on misrepresentation of the acts of the opposite parties. It is evident that the complaint has been filed by the Complainant with the sole intention of making undue benefit out of the answering opposite parties. The Opposite party No. 4 is the oldest continuous-production motorcycle manufacturer in the world. It is a unit of Eicher Motors Limited and has been a pioneer of powerful four stroke technology since 1955 in India. With its manufacturing base in Chennai, India, this Opposite party offers a variety of models catering to the needs of the traditional segments, the enthusiasts, the leisure bikers and the urban youth. The Motorcycle Design team is well equipped with high-end CAD/CAM workstations and the latest modelling software. Top-notch designers work continuously to come up with innovative bikes designs to meet the market's expectations. Continuous rigorous testing of motorcycles and components is carried out by the Opposite party in its Product Development testing lab to come up with more improvements in enhancing the customer experience. The Opposite party’s manufacturing operations go through a series of modernization and improvement efforts, with a number of automated processes. The Opposite party has put in place modern manufacturing practices like Cellular layouts, statistical process controls and flexible manufacturing systems. The Chennai manufacturing facility has received the ISO 9001 certification and for managing its operations in a clean and safe environment, it has obtained the ISO 14001-quality certification and kaizens are implemented to ensure the quality levels are kept at an ever-rising pace. The complainant has with ulterior motives made the employees of the opposite party who are not directly linked to matter as parties in the case to muscle them for a negotiation. The vehicle of the complainant is perfectly fine and every time when customer brings the bike for service, all his apprehensions were cleared. The complainant used to put undue pressure on the staff of the dealership to replace parts of his vehicle regularly or else he would complaint legally or publish his views in social media stating himself as an IT professional and an avid user of social media platforms. The 4th Opposite party focusing on customer satisfaction had constantly attended to the customers complaints, but even the employees of the 4th Opposite party, Opposite parties 1 and 2 were constantly threatened by complainant about escalation of complaints to higher ups, if the parts which he seeks are not replaced. This was despite there being no issues with the vehicle. On 19th February, 2019 the complainant came to the dealer and said his disc plate had defects and demanded replacement. The Dealer checked and found that there was no major concern, but the complainant had not accepted and compelled dealer to replace the same as a special case. Customer has been given good service at the 4th Opposite party BRAND store at Cochin. All bolts were properly tightened during service, but customer came back after two days with some local Non-RE certified mechanic and says some sound came from brakes. On inspection no issues were found. However, averments of the complaint filed by the Complainant which are not specifically dealt with herein below should be deemed to have been denied. It is also submitted that the complainant has with ulterior motives made the employees of the Opposite party who are not directly linked to matter as parties in the case to muscle them for a negotiation. The vehicle of the complainant is perfectly fine and every time when customer brings the bike for service, all his apprehensions were cleared. The complainant used to put undue pressure on the staff of the dealership to replace parts of his vehicle regularly or else he would complaint legally or publish his views in social media stating himself as an IT professional and an avid user of social media platforms. The 4th Opposite party focusing on customer satisfaction had constantly attended to the customers complaints, but even the employees of the 4th Opposite party, the Opposite parties 1 and 2 were constantly threatened by complainant about escalation of complaints to higher ups, if the parts which he seeks are not replaced. This was despite there being no issues with the vehicle. The complainant had approached the brand store and reported that some abnormal sound was coming from wheels, however, on inspection in front of senior technical staff, the same could not be found. Thereafter the complainant reported minor sounds after his 150km ride. This is purely due to dirt/mud accumulation within brake system components which may happen while riding in a rain water clogged areas when water mixes up with soil which is quite common. It has to be noted that the complainant never accompanied the staff of the 4th the Opposite party for a road test or if requested would not take a ride of the vehicle after service, but would come back with further complaints. With regard to the averments regarding the non-passing of the Pollution test, the complainant had made changes to the vehicle with the aid of a non-RE certified technician to the engine to boost the mileage of the vehicle. This type of test failing happens only if the carburettor tuning set in the vehicle at the time of purchase is disturbed by complainant himself or by some local technician when customer wants to tune carburettor to get more mileage or power or for quick starting the engine etc. The Only reason according to the 4th Opposite party is that the complainant being constantly travelling between Cochin and Malappuram, he would have reset the carburettor tuning by a non-RE trained technician, this could be immediately sorted, if the complainant brings the vehicle to the service centre were a RE trained technician as per standard operating procedure (SOP) by manufacture itself will clear this issue in minutes.
5) . Evidence
The complainant had produced 2 documents.
1.Photo copy of the pollution under control certificate dated 19-04.2019.
2.Photo copy of the pollution under control certificate dated 28-01.2019.
6) The main points to be analysed in this case are as follows:
i) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?
ii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iii) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
The above case is filed by the complainant for compensation for the deficiency in service of opposite parties
In connection with the manufacturing defect of the bike the complainant purchased a Royal Enfield Classic 350 Gunmetal Grey - bike from the opposite parties. After purchase of the bike the complainant had faced several Issues. At last fed-up with the responses and unable to use the bike the complainant had to send mails to the customer support for getting issues resolved. In the event that the opposite parties were not ready to fix the defects of the bike, the complainant sent an e mail complaint. If the opposite parties are not able to make the bike usable, the complainant demanded to refund the price of the bike. The complainant had approached the Commission to refund Rs.1,73,665/ (Cost of the Bike plus extras spent on bike for repair), to pay Rs.50,000/-. as compensation for mental pain and agony sustained by the complainant on account of the deficiency in service by the opposite parties and the cost of the litigation.
The counsel for the opposite party Nos.1 & 2 submitted in the version that the Vehicle of the complainant is perfectly fine and every time when customer brings the bike for service, all his apprehensions were cleared. The above complaint has been filed on an experimental basis for the purpose of harassing the opposite parties. The complainant is not entitled to any of the relief prayers for and the same is liable to be dismissed with costs.
The counsel for the 4th opposite party submitted in the version that the averment in the complaint that the dealer and the 4th Opposite party promised to sell the bike of the complainant is not correct. Neither the 4th Opposite party or dealer came up with sales offer as alleged. The complainant used to call the staff of the 4th Opposite party and demand that the vehicle be brought back. As the 4th Opposite party has No buy back system nor selling system of product directly to customer, he was told to bring the bike to the selling dealer (ABC Motors Tirur) and discuss the issues which he said he found at the purchasing time itself. However, the intention of the customer was to take the latest model and not the actual issues with the bike. Thus, the complainant constantly threatened the dealer to buy back his vehicle and pay him the balance, failing which he would file a complaint. On the refusal of the dealer to oblige to the same he is made a party in his individual capacity.
The complainant had produced only photo copy of 2 documents along with the complaint, the pollution control certificates dated 19-04.2019 and 28.01.2019.
The complainant is continuously absent since 13.02.2020. The Commission issued notice to the complainant on 20.01.2023 for appearance and adduce evidence if any. The notice sent to the complainant is seen as returned with an endorsement “Left India” as per the proof of the Postal Department. No evidence adduced by the complainant to date. The case is posted for the evidence of the complainant. So many chances were given to the complainant to adduce evidence. The complainant is not interested to proceed further. Hence the commission taken up the case for final order.
Hon’ble THE SUPREME COURT OF INDIA IN CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5759 OF 2009 SGS INDIA LTD. APPELLANT(S) V. DOLPHIN INTERNATIONAL LTD. RESPONDENT(S) held that:
“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4 , this court held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent…” 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. 5, held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under: - “28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”
Dictated to the Confidential Assistant Ambily transcribed and typed by her corrected by me and pronounced in the Open Commission on this 10th day of March 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
APPENDIX
Complainant’s Exhibits
Ext. A1.Photo copy of the pollution under control certificate dated 19-04.2019.
Ext. A2.Photo copy of the pollution under control certificate dated 28-01.2019.
C.C.340/2019
order dated 10.03.2023
