KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.23/2016

JUDGEMENT DATED: 02.09.2022

(Against the Order in C.C.No.201/2013 of CDRC, Kasaragod)

PRESENT:

APPELLANT:

(by Adv. Suresh Kumar Kodoth)

Vs.

RESPONDENT:

JUDGEMENT

SRI. RANJIT  R. : MEMBER

          The 2^nd opposite party in C.C.No.201/2013 on the file of Consumer Disputes Redressal Forum, Kasaragod (in short District Forum) had filed this appeal against the order dated 14.09.2015 by which the District Forum directed them to pay Rs.15,000/- (Rupees Fifteen Thousand) to the complainant along with compensation of Rs.5,000/- (Rupees Five Thousand) and costs of Rs.3,000/- (Rupees Three Thousand).

          2.       The facts leading to the case of the complainant in brief is that he had purchased a new Maruti Ertiga car from the 1^st opposite party on 07.02.2013.  On 09.08.2013 while he was driving the car, the tyre of the car, which was manufactured by the 2^nd opposite party suddenly burst without any reason and the said tyre was cracked at the side wall.  On the same day he lodged a complaint with the 1^st opposite party regarding the burst of the tyre.  Accordingly the 1^st opposite party informed the matter to the 2^nd opposite party.  The 2^nd opposite party inspected the tyre on 20.08.2013 and on inspection it was found that the tyre had an external impact on the side wall and hence the tyre burst.  It is not a manufacturing defect.  Finding that the tyre was not having manufacturing defect rejected the claim of the complainant for replacement.  Complainant showing such rejection of the claim for replacement of tyre under warranty being unfair trade practice and deficiency in service on the part of the opposite parties had filed the complaint before the District Forum.

          3.       The 1^st opposite party filed version admitting the purchase of the vehicle from them.  They had further stated that on receiving the tyre alleged to have manufacturing defect they promptly informed the matter to the 2^nd opposite party.  The 2^nd opposite party inspected the tyre in the presence of the complainant and found that the burst occurred due to the external impact and hence the claim of the complainant was rejected.  The claim for replacement of the tyre or refund of its amount rests only with the 2^nd opposite party and hence they are unnecessary party in the complaint and prayed the to absolve them from liability.

          4.       The 2^nd opposite party filed version stating that no cause of action has arisen against them.  The 2^nd opposite party had deputed one of their engineers to inspect the tyre alleged to have become defective.  The engineer filed report stating that the tyre in question suffered from external impact on side wall which is not a manufacturing defect.  As per the report dated 20.08.2013, there is no deficiency in service or unfair trade practice on their part.  At the time of spot inspection the tyre had already travelled 4050kms.  So the plea of manufacturing defect is apparently wrong and hence they pray for dismissal of complaint as not maintainable. 

          5.       Complainant was examined as PW1 and his documents were marked as Exhibit A1 to A6.  2^nd opposite party’s witness was examined as DW1.  No document was marked on the side of the opposite parties.

          6.       Appreciating the materials produced, the District Forum concluded that since the tyres had a warranty of five years and that the vehicle had run only for six months and the fact that the complainant would naturally use the vehicle carefully there is no chance that the tyre got burst due to hit of an external object.  The rejection of the claim of the complaint by the 2^nd opposite party amounts to unfair trade practice and deficiency in service.  The District Forum on said conclusion passed the impugned order under challenge.

          7.       Heard the appellant and the respondent who was present in person.  Perused the records.  The learned counsel for the appellant challenging the order of the District Forum submitted that under section 13(c) of the Consumer Act it is mandatory that the complainant who alleges the defect in the goods shall obtain his goods to be send to proper analysis or tests to prove that there is manufacturing defect.  No report is called for by the complainant to prove his case.  No technical expert had inspected the tyre to ascertain whether there is an manufacturing defect in the tyre in question.  Further the District Forum completely disregarded the spot inspection report dated 20.08.2013.  The Service Engineer clearly mentioned in the Exhibit A5 report that the tyre was burst due to impact of external object and it is not covered under warranty and hence the claim of the complainant was rejected.  Moreover, at the time of inspection the tyre in question has already run 4,000 kms.  Being a rubber product had the tyre been suffering from manufacturing defect it would not have been able to run a few kilometres, let alone 4050kms.  In the absences of any independent expert evidence to prove that the tyre had any manufacturing defect the District Forum ought to have dismissed the complaint as not maintainable.  He had placed reliance on the following judgements in support of his case.  Appollo Tyres Ltd. Vs. Ayyavr Reddy and another reported in II (2012)CPJ 638 (NC) and Scooter India Ltd. Vs. Manjulla Kirti Bai and others III (2010) CPJ 235 (NC).  The complainant on the other hand contended that the tyre burst while the vehicle was running.  On examination of the tyre by the complainant it was found that there was cracks of side wall of the tyre.  Immediately he contacted the dealer, the 1^st opposite party and intimated about the burst.  As instructed by the dealer, the complainant personally visited the showroom and raised claim as envisaged under the warranty policy.  At the time of the burst, the vehicle had run only 4050km which is within the warranty.  The complainant was asked to be present for inspection by the 2^nd opposite party at the premises of the dealer on 20.08.2013.  however, the so called expert without inspecting or examining the tyre in his presence unilaterally prepared a report and served on him.  The report is seen dated 18.08.2013 which is marked as Exhibit A5.  As per Exhibit A3 the date of inspection was fixed on 20.08.2013.  However, the appellant had never explained the logic of producing inspection report dated 18.08.2013.  It shows that there was fraud played by the 2^nd opposite party to the complainant to defeat the legitimate right as envisaged under the warranty policy.  The complainant is entitled to the benefit of the warranty.  The tyre was used by the complainant only for six months and the defect was noticed and hence he would urge for replacement of the tyre since the complaint occurred within the warranty period.

          8.       It is an admitted fact that the tyre manufactured by the 2^nd opposite partyis having a warranty for forty thousand kilometres or two years whichever occur first.  The tyre burst within a period of six months and the vehicle had run only four thousand kilometres.  Now the short question to be considered is as to the reason for the burst of the tyre, whether it is due to inherent defect of the tyre or due to external impact of any sharp object.  The exclusion clause in warranty states that the warranty does not cover tyre or irregular ware and tear caused arisen from any of the following reasons:

(1)     Road hazards including punctures, cuts, snags, bruise, impact brakes etc..

(2)     Improper use or operation, including without limitation: Improper use such as racing, testing, overloading, improper inflation pressure, fitment not according to the specification of vehicle or wheel manufacturer, negligence and alterations to the tyre

(3)     Insufficient or improper maintenance, including without limitation: Failure to rotate tyres regularly, wheel misalignment, worn suspension components, improper tyre mounting or demounting, tyre/wheel assembly imbalance, or other vehicle conditions, defects, or characteristics

(4)     Ride disturbance after the first 25% of usable tread-wear or due to damaged wheels or any vehicle condition

(5)     Long storage or new vehicles with tyres mounted on, which may cause a flat spot on tyre.

(6)     Contamination or degradation by petroleum products or other chemicals, fire or water

(7)     Improper repair

          9.       According to the 2^nd opposite party it was revealed through the spot inspection made on 20.08.2013 (Exhibit A5) that the tyres were damaged due to impact of external object.  The said damage is not covered under warranty.  Since there was no manufacturing defect to the tyre they were not liable to replace the tyre.      

10.     However, we note that in the version and in the appeal memorandum the 2^nd opposite party would state that the spot inspection was done on 20.08.2013, whereas in Exhibit A5 the date of spot inspection report is stated as 18.08.2013.  The claim of the complainant for replacement of the tyre was rejected based on this report dated 18.08.2013.  Moreover DW1 the 2^nd opposite party’s witness (original Customer Service Manager) would admit that Exhibit A5 spot inspection report is dated 18.08.2013 and that it is holiday for all their employees.  In Exhibit A3 e-mail sent by the Goodyear Company shows that the tyre in question will be attended by their Service Engineer on 20.08.2013.  In Exhibit A4 letter dated 20.08.2013, given by the 1^st opposite party KVR Cars to the complainant it is mentioned that the Service Engineer of M/s Goodyear Tyres (2^nd opposite party) visited their workshop on 20.08.2013 for check-up of the tyre.  But at the same time in Ext.B4 itself they stated that spot inspection report was received from the Service Engineer on 18.08.2013.  We are at loss as to the reason for having spot inspection on 18.08.2013 that too on Sunday, especially since the date fixed for inspection of the tyre is 20.08.2013.  The date of inspection (20.08.2013) was also informed to the complainant and he was also be present at the workshop of the 1^st opposite party showroom on 20.08.2013.  The specific case of the complainant is that in Exhibit A3 e-mail it is informed to him by the 2^nd opposite party that the Service Engineer will inspect the tyre on 20.08.2013.  These being the facts the complainant doubts the genuineness of the spot inspection report that is Exhibit A5.  As rightly submitted by the complainant the 2^nd opposite party had arbitrarily and illegally rejected the claim, on the basis of their report dated 18.08.2013 which is a fabricated one.  From the above narrated facts it can be seen that Exhibit A5 report is made even prior to the actual inspection of the tyre by the Service Engineer.  As stated by the complainant, on 20.08.2013, no inspection was made by the Service Engineer in his presence.  Hence the contention of the 2^nd opposite party that the damage of the tyre is not covered under the warranty and they are not liable to replace the same is only to be rejected.  Moreover the said report is not proved by examining the said Service Engineer of the 2^nd opposite party who had allegedly inspected the tyre and prepared the Exhibit A5 report.  No explanation was given by the 2^nd opposite party for not examining the Service Engineer to prove Exhibit A5 report.  He is the most competent witness to state about the facts narrated in the report.  The counsel for the appellant would submit that the complainant has not taken steps to get expert opinion regarding the cause of burst of the tyre.  However we note that the tyre has run only 4050kms and the tyre got damaged within six months of the date of purchase, it can only be due to manufacturing defect unless otherwise proved.  Onus to prove that the tyre has no manufacturing defect shifts to the 2^nd opposite party they did not prove the same. 

10.     From the above facts we are satisfied that the opposite party has miserably failed to prove their contention that the damage to the tyre was the result of external impact especially since there is no damage to other parts of the car.  In the above circumstances we are of the opinion that the rejection of the claim for replacement of the damaged tyre under warranty is illegal.  The District Forum has analysed materials on record correctly and thus there is nothing to interfere with the impugned order and hence the order of the District Forum is only to be confirmed

In the result, the appeal is dismissed.  The parties are directed to suffer their respective costs.

The statutory amount of Rs.11,500/- (Rupees Eleven Thousand Five Hundred) deposited by the appellant shall be released to the 1^st respondent/complainant on filing proper petition.  The balance amount due to the complainant shall be paid by the 2^nd opposite party/appellant within three months from the date of receipt of a copy of this judgement failing which the complainant can initiate appropriate proceedings for executing the order.

SL