DOF.24.10.2008 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 9th day of April 2010 CC.245/2008 K.P.Sajir, Fathima Manzil, Kuzhoor.P.O., Iritty (Rep. by Adv.Sebastian K. Jacob) Complainant 1. A.J.Enterprises, Thavakkal Compelx, Iritty 2. Cannanore Tyre centre Lal’s Apartments, South Bazar, Kannur. 3. M/s.Appollo Tyres Ltd., Opposite parties A.M.Complex, Cherroty Road, Kozhikode. (Rep. by Adv.Shaji.K.N) O R D E R Sr.K.Gopalan, President This is a complaint filed under section12 of consumer protection act for an order directing the opposite parties to pay Rs.50, 000/- as compensation. The case of the complainant in brief is as follows: The complainant has purchased two new tyres with tube for his lorry from the 1st opposite party for Rs.14, 200/-. It was assured by1st opposite party for warranty for a period of one year under customer Friendly claim policy the said two tyres were fitted under the control of the first opposite party and the fitting charges were given by 1st opposite party. On 2.5.08 while the 1st trip was taken one of the tyres (No.120373) began to tear roundly from the centre portion of the tyre. The tube and the tyre returned to 1st opposite party for replacement of a new tyre. 1st opposite party being the sub dealer sent the tyre to 2nd opposite party the authorized dealer to substitute the tyre and 2nd opposite party in turn sent the same to 3rd opposite party the manufacturer. Since there is no response even after several attempts complainant sent a lawyer notice to 1st opposite party to return the money? 2nd opposite party replied it with false contention. The mounting process has-been done under the guidance of the 1st opposite party. The damage of tyre happened due to manufacturing defect. Due to the damage the vehicle could not be used for one and a half month and he lost his income. The income from this vehicle alone is the source of this income for the lively hood. He has a financial loss of Rs.22, 500/-. It is due to the manufacturing defect of the tyre for which opposite parties are liable. Hence this complaint. In pursuance of the notice opposite parties 1 to 3 entered appearance and filed version separately. Opposite parties 1 to 3 filed versions but opposite parties 1 and 2 there after remained absent and subsequently called absent and set exparte. The 1st opposite party contended as follows: The complainant is not a consumer and complaint is not maintainable since the tyre purchased has been used for commercial purpose. 1st opposite party is only a retail purchaser of3rd opposite party and selling the product of 3rd opposite party to customers. 2nd opposite party is the dealer. The tyre as mentioned in the complaint is obtained to this opposite party from the 3rd opposite party. After getting complaint the same informed to 3rd opposite party through 2nd opposite party and sent the defective item to them. They have sent a rejection letter. This opposite arty has no role on the manufacturing of the defective tyre. The principal who had supplied the product or the person who had manufactured the item shall b e bound to compensate the same if the defect is genuine. So 1st opposite party is not liable to compensate the same and hence to exonerate him. The contention of the 2nd opposite party in brief is as follows: Complainant is using the mini lorry for commercial purpose so complainant is not a consumer and complaint is not maintainable. 2nd opposite party is only a dealer. The tyre as mentioned in the complaint is obtained from 3rd opposite party. Immediately after receiving complaint from the 1st opposite party he sent the tyre to 3rd opposite party. They have technically evaluated and sent rejection eltter.2nd opposite party has no role in Manufacturing. It is the manufacturer who has to pay the compensation if the defect is genuine. This opposite party is not liable to compensate the claim. Hence to dismiss the complaint. The 3rd opposite arty contended as follows: The lorry being used for commercial purpose with the help of a paid driver the complainant is not a consumer. The technical service in charge of this opposite party did not find any defect in the alleged tyre. Complainant filed this application with ulterior motive. Complainant was not given any warranty. It is not a damage started in normal course within a month. This opposite party is not aware of the legal notice. The alleged tyre was inspected by the service Engineer. The cause of damage was given as Lock Ring Damage which cause due to improper mounting or demounting by unskilled labour, usage of improper size, deformed rims and components, over loading etc. 1st opposite party is not a dealer of 3rd opposite party. Complainant is free to get the tyre inspected with some authorized lab. There is no manufacturing defect. Hence to dismiss the complaint. On the above pleadings the following issues have taken for consideration. 1. Whether the complainant is a consumer? 2. Whether there is any deficiency in service on the part of opposite party? 3. Whether the complainant is entitled to get the relief as prayed in the complaint? 4. Relief and cost. The evidence consists of oral evidence of PW1, DW1 and exts.A1 to A3, B1 and B2, MO1 tyre and Ext.C1. Issue Nos. 1 to 4 Complainant has purchased Two tyres P.081203 and P.120393.Exts.A1 proves that complainant purchased the same from 1st opposite party. Opposite parties 1 and 2 also stated in their versions that the tyre mentioned above had obtained from 3rd opposite party. 1st opposite party is the sub dealer and 2nd opposite party is the dealer. Complainant has pleaded that using of this vehicle is the only source of earning for his livelihood by means of self employment. He has adduced evidence by way of affidavit that he is depending upon the income from the lorry for his livelihood. ‘explanation to section 2(d) of Consumer protection Act makes it clear that for the purpose of this clause,” commercial purpose’ does not include use by a person of goods brought and used by him exclusively for the purposes of earning his livelihood by means of self employment. He is given evidence that Rm³ KL-58-----þ 3192 \T-]Àan\n temdn-bpsS DS-a-Ø-\m-Ip-¶p. taÂtemdn HmSn-¡n-«p-¶-h-cp-am-]-\-T- sIm-mWv Rm\pT IpS-T-_-hpT Pohn-¡p-¶-Xp. There is no reason to disbelieve complainant. It has brought out in cross examination that the complainant and another driver used to drive the vehicle. Complainant deposed in his cross examination that “Rm\pT ss{Uh-dpT IqSn-bmWv hn D]-tbm-Kn-¡p-¶-Xv. hmS-I¡v HmSp-¶-XmWv “`. There is nothing wrong to assume that this is a case of self employment. DW1 in cross examination deposed that “SbÀ hm§n-bXp hn¡v D]-tbm-Kn-¡m³ thn-bm-bn-cp¶p F¶p ]d-ªm icn-bm-Wv. hn HmSn-¨vIn-«p¶ hcp-am-\T sImm-Wv- D-]-Po-h-\-T-\-S-¯p-¶-Xv-F-¶p-]-d-ªm icn-bm-bn-cn-¡m-T. Thus the complainant is a consumer and the complaint is maintainable. The case of the complainant is that on 2.5.08 the tyreNO.120373 was completely damaged due to the manufacturing defect. The 1st opposite Zarty assured the replacement of the tyre. But 3rd opposite party unilaterally conducted inspection and found that it is not the manufacturing defect but so many other reasons. Ext.A1 is the receipt for Rs.14200/- dt.23.4.08 issued by A.J Enterprises 1st opposite party for the purchase two tyres P.081203 and P.120373. This receipt proves the purchase of two tyres, the numbers which are given in the receipt. The second number tyre is the subject matter of the complaint. Opposite parties 1 and 2 filed version admitting the purchase. Their case is that incase there is any defect to tyre it is 3rd opposite arty who is liable answer since they are only sub dealer and dealer. In other words they have taken a position that dealers and sub dealers are not liable and hence they are free from liabilities. Complainant has also given evidence by way of affidavit that “ taÂ]Sn Sb-dp-IÄ¡v IÌ-aÀ{^WvSven IvsfbnT t]mfnkn {]Im-cT Hcp-hÀjs¯ Kym-c-n- D-f-f-Xmbn ]dªp Fs¶ hni-z-kn-¸n-¨n-cp-¶p. A{]-Im-cT H¶m-T-F-XnÀI-Ijn \ÂInb Dd-¸nsâ ASn-Øm-\-¯n-emWv Rm³ Sb-dp-IÄ hm§n-b-Xv. “ 3rd opposite party denied this. 3rd opposite party in their version stated that complainant was given any unconditional warranty for 1 year as customer friendly policy of the company stands only for manufacturing defect in its products. But opposite parties 1 and 2 has not denied these facts. Nothing has stated in their version with respect to the warranty. Complainant has specifically pleaded that 1st opposite party assured warranty for a period of one year under customer Friendly claims policy. The silence on the part of opposite parties 1 and 2 with respect of the warranty amounts admission that there was such an assurance of guarantee opposite party has specifically stated in his version that “the tyre as mentioned in the complaint is also obtained to this opposite e party from the 3rd opposite party through2nd opposite party and it is sold to the complainant”. 2nd opposite party also stated in his version that “the tyre as mentioned in the complaint is also obtained to this opposite party from the 3rd opposite party and it is supplied to 1st opposite party. Hence there is no need of further evidence to prove that complainant purchased the tyre of 3rd opposite party through 1st opposite party.; Ext.A3 is the reply letter dt.11.6.09 send by Cannanore Tyre Centre 2nd opposite party proves that 1st opposite party is the sub dealer of 2nd opposite party. It is also proved that 2nd opposite party sent the defective tyre to 3rd opposite party, Apollo Tyres. 3rd opposite party did not say that 2nd opposite party was not their sub dealer. The dealings revealed that 3rd opposite party received the tyre from 2nd opposite party. 3rd opposite party admitted that the tyre of the complainant was inspected by the service Engineer of 3rd opposite party. The dealings of opposite parties 1 to 3 reveals the relation ship with them and there is no doubt 3rd opposite party is the manufacturer of the tyre No.120373 purchased by the complainant from 1st opposite party. The case of the 3rd opposite party is that the defective tyre was inspected by their service Engineer and found the cause of damage was “Lock Ring Damage” which causes due to improper mounting or demounting by unskilled labour, usage of improper size, deformed rims and components, overloading etc. Complainant has pleaded that the above said tyres were fitted in the lorry under the control of the first opposite party and the fitting charges was paid by the 1st opposite party. These facts were not denied by opposite parties. Complainant repeatedly pleaded that the mounting process has been done under the guidance of the 1st opposite party. It has also pleaded that if there was any failure to the lock ring it would have been informed at the time of mounting itself. It was not denied by opposite parties 1 and 2 in their versions. Affidavit evidences of the complainant also stated that “ ]pXp-Xmbn hm§p¶ Sb-dp-IÄ H.¶mTF-XnÀI£n Ah-cpsS sNe-hnÂX-s¶-bmWv ^näv sNbvXp \ÂIp-¶-Xp. A{]-Im-cT Rm³ hm§nb 2S-b-dp-I-fpT H¶mT FXnÀI-£n-\nÀt±-i.#n¨ IS-bnÂt]mbn ^näv sNbvXp. ta¸Sn hml-\-¯n-sâ- B-Zy {Sn¸nÂXs¶ 2.5.08\v taÂS-b-dp-I-fn H¶p(-\-T-]À.-]n.120373 ) Hcp hi-¯p-\n-¶pT ]pd-t¯¡v Xf-fp-hm³ XpS-§n “. It has come out again in cross examination that ”SbÀ hm§nb IS-bn \n¶p Xs¶-bmWv ^näv sNbvX-Xv. -S-bÀ^n-ävsN-bvX-Xnsâ Iqen A-hÀ Xs¶ sImSp-¡p-I-bmWv sNbvXXv “.These evidences are quite enough to assume that the mounting process has been done under the guidance of 1st opposite party. The subsequent absence of opposite parties 1 and 2 has not been without reason but an attempt to hide the truth from the Forum. It is quite evident that 2nd opposite party is the dealer of 3rd opposite party and 1st opposite party is the sub dealer of 2nd opposite party. For the simple reason of none challenging of the evidence of complainant by opposite parties 1 and 2 the contention that the improper mounting and demounting by unskilled labour etc. on the part of complainant could not be established. DW1 in his cross examination deposed that “ Cu tIÊn FXr-I-£n-bn \n¶p hm§nb SbÀ F{]-Im-c-amWv ^näv sNbvXXv Fs¶-\n-¡-dn-bnÓ` 3rd opposite party did not make it assure from 2nd opposite party their dealer how does the mounting process has been done. The pretension of 3rd opposite party that they have no relation with opposite parties 1 and 2 is absolutely untrue. DW1 himself deposed in cross examination thus: Cu tIÊnse cT {]Xnsb And-bm-T.cqT FXr-I-£n-R-§-fp-sS-Uo-eÀ BWv. Thus the absence of evidence on the part of opposite parties 1 and 2 badly affected in establishing the contentions raised by all the opposite parties including the contention of 3rd opposite party. 3rd opposite party mainly depending upon the report of their service engineers. 3rd opposite party has also taken a contention that the tyre has been sent to them for technical inspection. It is undoubtedly clear that the tyre was sent to 3rd opposite party by2nd opposite party. The pleading of 2nd opposite party is that after getting the complaint 2nd opposite party immediately informed the facts to the 3rd opposite party and sent the defective item to them. Hence it is definite as stated by1st opposite party in his version that the tyre happened to be sent to 3rd opposite party upon the complaint of complainant. Opposite parties 1 and 2 has no case that the tyre was sent to 3rd opposite party for mere technical inspection. 3rd opposite party has not brought before the Forum the content of information sent by 2nd opposite party in respect of the tyre. What is informed is not stated by 3rd opposite arty. Ext.B3 produced by 3rd opposite arty shows that the column Technical finding is filled with lock ring damage. But there is no report explaining how he arrived at such a conclusion. Mr.Ajith Krishnan DW1 who has conducted the test has not adduced evidence how did he arrived at the conclusion that the cause of damage was ‘ LOCK Ring Damge’.2nd opposite party failed to prove Ext. B2. Forum cannot depend on Ext.B2 to jump into a conclusion that the cause of damage of the tyre was Loc Ring Damage. When this complaint was posted for opposite parties evidence 3rd opposite party Apollo Tyres Ltd. filed a petition in the form of a letter to Forum in their letter pad expressing their readiness to send the tyre for experts evaluation on condition that in case the tyre got rejected by the external expert with reason, then the cost of experts inspection and transportation cost of the tyre should be borne by the customer. This letter was considered as application and taken on file. Both parties were head and the same was rejected since it was filed in the final stage of proceeding. In summary proceedings there is no justification in allowing such petition especially because of the reason of completion of evidence on the side of complainant. It cannot be considered as a genuine attempt to bring the truth before the Forum but only an attempt to make believe the Forum that they are ready to take it up on expert’s opinion. Petition was rejected for avoiding further delay. Complainant has taken out an expert commission and commission report was filed on 13.5.09. The report was posted for objection. 3rd opposite party also did not file any objection to the report of the Expert Commission. The matter was posted for affidavit and evidence. T hereafter the evidence of the complainant was taken on 29.6.09 and report of the expert commission marked as Ext.C1. Complainant’s evidence was closed and posted for the evidence of opposite party on 13.7.09. But on that day opposite party prayed for adjournment and the same posted to 22.7.09 for opposite party’s evidence. It was then the opposite party came up and filed the above mentioned petition expressing the readiness to send the tyre for expert evaluation. It was taken for hearing but opposite party could not convince the Forum that it was just proper to allow the petition in such a belated stage. Ext.C1 is the report filed by the expert commissioner appointed by the Forum No objection filed to this Expert commission report by 3rd opposite party. The report says thus “ taÂ\-T-]À SbÀ Hä t\m«-¯nÂX-s¶-]p-Xp-Xmbn tXm¶p-¶-XpT tkmÄ tXªv Xocm-¯-Xp-am-Wv. F¶m Sb-dnsâ FUvPv(-h-i-§Ä) ]cn-tim-[n-¨-Xn Ah ]pd-t¯¡v Xf-fp-¶-Xmbn ImW-s¸-«p……… am{X-aà Sb-dnsâ Hcp-`m-KT sskUv _e-£-b-ap-f-f-Xm-bpT ImWp-¶p. XpSÀ¶p ]cn-tim-[n-¨-Xn Hcp-ssk-Un-ep-ff IT-]n-IÄ ]pd-t¯¡v Xf-fn-\n¡p-¶-Xm-bpT ImWp-¶p “. Expert Commissioner is of opinion that the ejection of metal wire will not be caused in any form of mounting. He continued to says thus Hcp-]p-Xnb SbÀ F{]-Im-cT aun-TKv \S-¯n-bm-epT AXp ]pd-t¯¡v Xf-fp-I-bn-Ã.- A-Xp-sIm-v- F-sâ-\n-co-£-W-¯n Sb-dn¶p \nÀ½m-W-¯n-ep-ff XI-cm-dmWv Sb-dn-sâ -X-IÀ¨¡v Imc-W-T. SbÀ 100 In..-ao-äÀ t]mepT HmSn-bn-«n-söp Sb-dn-sâ tkmÄ t\m¡n-b-t¸mÄ F\n-¡va-\-Ên-em-bn. It can be seen that there are two defects pointed out in the report viz 1. Robust Weakness on the edge-end 2. Ejection of metal wire These defects can be noted by any mechanic. An experienced practical mechanic in the field even without academic qualification will be able to assess these types of defects. These mistakes are visible on the face which a man of practical experience in the field can very well realize the actual cause of damage. It has nothing to do with the quality of rubber or else necessitates any sort of lab test. These are all things which we are experiencing in our day to day life. Though the experts in our ordinary workshops not having academic qualification we cannot under estimate their work perfection. The very existence of every work shop is depending upon the work perfection and not qualification which is a proved fact in our day to day life. The tyre is marked as MO1.On witnessing this MO we are under the impression that the expert commission is capable of evaluating the cause of damage. It is pertinent to note that the tyre in dispute became damaged within 10days of its purchase. The complainant adduced the evidence to the effect that the tyre was purchased on 23.4.08. It became damaged on 2.5.08. The tyre was entrusted with 1st opposite party on 3.5.08. Complainant also adduced evidence that he has made enquiry with 1st opposite party to get the tyre on various days 12.5.08, 19.5.08 and 26.5.08. There are all facts which have not been challenged. In the light of above discussion considering the facts and circumstances of the matter we have no hesitation to hold that the tyre in dispute is damaged due to manufacturing defect. In the case Ashok Khan vs. Abdul Karim and others (2005 CTJ 1207(CP) NCDRC, Hon’ble National Commission held that ‘Both the dealer and manufacturer of the machine having defects in it, are jointly and severally liable to the purchaser because he knows only the dealer from whom he purchased that machine and not its manufacturer. The same stand reiterated in Charisma Gold wheels P Ltd. Vs. Dr.B.K.Arora, Rampur Bushehar and another so also in Hyundai Motors India Ltd. Vs. B.K.Arora and another that both of them could not escape from liability and were jointly and severally liable to the complainant. Hence the opposite parties are jointly and severally liable to compensate the loss sustained by the complainant. Hence we are of opinion that the opposite parties are liable to pay the price of tyre Rs.7100/- and a sum of Rs.5000/- as compensation and Rs.1000/- as cost of these proceedings. The issues 1 to 4 are found in favour of complainant. In the result, the complaint is allowed directing the opposite parties to pay an amount of Rs.7,100/-(Rupees Seven thousand One hundred only) as the price of the tyre and a sum of Rs.5000/- (Rupees Five thousand only) as compensation together with Rs.1,000/-( Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is at liberty to execute the order against the opposite parties as per the provisions of the consumer protection act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Cash bill issued by OP A2 & 3.Copy of the lawyer notice sent to and reply notice Exhibits for the opposite parties B1.Poser of attorney B2.Claimreceipt dt.13.5.08 Exhibits for the court C1.Commission report. Witness examined for the complainant PW1.Complainant Witness examined for the opposite parties DW1.Ajith Krishnan /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
| | HONORABLE PREETHAKUMARI.K.P, Member | HONORABLE GOPALAN.K, PRESIDENT | HONORABLE JESSY.M.D, Member | | 
