BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 29 FEBRUARY 2016
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO. 341/2011
(Admitted on 29.10.2011)
Mr. H.B. Mohammed,
Aged about 46 years,
S/o Late Haji H.B. Sulaiman,
Residing at Retreat Apartments,
Flat No. 901, 9th Floor,
Near Kaprigudda,
S.L. Mathias Road,
Falnir, Mangalore. …….. COMPLAINANT
(Advocate for Complainant: Sri Deenanath Shetty)
VERSUS
1. The Authorised Signatory,
M/s. J.K. Tyres & Industries Ltd.,
Shree Ram Agencies,
Rozario, Church Road,
Hoige Bazar,
Mangalore. 575 001.
2. The Authorised Signatory,
Regd. Office: 7,
Council House Street,
Kolkatta- 700 001. ……OPPOSITE PARTIES.
(Opposite party No.1 Ex-parte)
(Advocate for Opposite Party No. 2 : Sri Krishna Prasad M.S.)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY
- 1. This complaint is filed under section 12 of the Consumer Protection Act alleging defect in tyre as against the opposite parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant is the registered owner of a swift car bearing Registration No Ka 19Z 8713. Complainant purchased 4 tyres on 04-06-2011 by paying sum of Rs 12,102 to the opposite Parties. It is stated that after laps of 1 week the tyre has been noticed wearing rents in all the 4 tyres. That has been brought to the knowledge of Opposite Parties to replace the 4 tyres. The opposite party No. 1 not considered to replace the tyre stating that the product has failed due to side wall scoring/injury/damage and not in a position to offer any replacement. It is stated that with period of a week time the aforesaid brand new tyres cannot have developed rents if there was no inherent defects. Feeling aggrieved by the above complaint filed U/sec 12 of the Consumer Protection Act 1986 (herein after referred to as the act) seeking direction from this Forum to the opposite parties to replace the four tyres with a new ones or pay up a sum of Rs. 12,102/- along with interest and compensation and cost of the proceedings.
- Version notice served to the opposite parties No. 1 & 2 by R.P.A.D. In-spite of receiving version notice by opposite party No. 1 neither appeared nor contested the case before this Fora. Hence we have proceeded ex-parte as against the opposite party No. 1.
The Opposite Party No. 2 appeared through their council contented that the complainant would have obtained expert report to prove the manufacturing defect. The damage to the tyres must have occurred on account of some Sharpe external object colliding with the tyres. The tyres was properly examined by Opposite Party No 1, it was found that side wall scoring and damage to the tyres. It is contended that there is no manufacturing defect, there is no scope for any allegation and sought for dismissal of complaint.
III. 1. In support of the complaint, Mr. H.B. Mohammed (CW1) the Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C3. And Sri Praveen Chandra Shetty, (CW-2) as a appointed court commissioner. One Mr. P.S. Chezhiyan service Engineer, (RW-1) filed counter affidavit and answered the interrogatories served on him.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the complainant proves that the opposite parties have committed deficiency in service?
- If so, whether the complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:.
Point No. (i) and (ii): Affirmative
Point No. (iii) and (iv). As per the final order.
REASONS
IV. 1. POINTS No. (i) TO (iv) : In order to substantiate the averments made in the complaint, complainant filed affidavit and produced Ex-C-1 to C-3. , wherein the Ex C3 is the receipt dated 04.06.2011 reveals that complainant purchased 4 tyres among that 1 tyre had a problem and the same as been given to Opposite parties along with complaint. The Ex C1 issued by the Opposite party reveals that the opposite party observed that the project has failed due to side wall scoring and rejected the replacement of the tyre. However complainant filed application for expert Opinion. When the expert contacted the opposite Parties for inspection of the tyres they have not cooperated nor produced the tyre for inspection which is in their custody. The Opposite parties should have cooperated for the expert to obtain their Opinion. Therefore we have drawn adverse inference drawn against the Opposite Parties that the tyre is defective and opposite parties are liable to refund the amount of one tyre along with reasonable compensation.
Under the above circumstance, we hold that, the subject tyre is proved to be defective and it cannot be repaired. The opposite parties directed to refund the amount of Rs. 3,026/- to the complainant. Further pay Rs. 5,000/- as damages for the harassment and inconvenience and also pay Rs. 3,000/- as costs of the litigation expenses.
Generally, if the goods are having manufacturing defect is to be borne by the manufacturer. That would not mean that, the dealer is absolved from joint and several liabilities. As we know, the manufacturer not deals with the customers directly. Dealer having received the amount, undertaken free service and rectify defect during the warranty do not escape liability towards the manufacturing defect found in the goods. As we know, the contract through dealer/service provider, privity of contract is with them. To ensure execution expeditiously and immediately, if necessary by making the payment/replacement to the complainant initially and then it will be for the dealer to claim reimbursement from the manufacturer. Therefore, the dealer and the manufacturer both are jointly and severally liable for the defects found in the tyer in this case.
In view of the aforesaid reasons, we hold that, the Opposite Party No. 1 and 2 are jointly and severally shall refund the cost of the one tubeless tornado tyres Rs. 3.026/- (Rupees Three thousand and twenty only) and also pay of Rs. 5,000/- as damages to the complainant for the inconvenience and harassment caused. Further pay Rs. 3,000/- as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.
In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party No. 1 and 2 are jointly and severally shall refund the cost of the one tubeless tornado 3,026/- and also pay of Rs. 5,000/- as damages to the complainant plus pay Rs. 3,000/- as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.
In case of failure to pay the above mentioned amount within the stipulated time, the opposite parties directed to pay interest at the rate of 12% per annum on the above said total amount from the date of failure till the date of payment.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 7 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 29th day of FEBRUARY 2016)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW-1 : Mr. H.B. Mohammed – Complainant.
CW-2 : Sri Praveen Chandra Shetty.
Documents produced on behalf of the Complainant:
Ex. C1 : 04.06.2011: Receipt.
Ex. C2 : 04.06.2011: Receipt
Ex. C3 : 11.07.2011: Letter of rejection.
Witnesses examined on behalf of the Opposite Party:
RW-1 : Mr. P.S. Chezhiyan – Opposite Party No. 2.
Documents produced on behalf of the Opposite Party:
Nil
Dated: 29.02.2016. PRESIDENT
29.02.2016
ORDER
The complaint is allowed. The Opposite Party No. 1 and 2 are jointly and severally shall refund the cost of the one tubeless tornado 3,026/- and also pay of Rs. 5,000/- as damages to the complainant plus pay Rs. 3,000/- as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.
In case of failure to pay the above mentioned amount within the stipulated time, the opposite parties directed to pay interest at the rate of 12% per annum on the above said total amount from the date of failure till the date of payment.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 7 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 29th day of FEBRUARY 2016)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
