Complaint No: 169 of 2023.

                                                                Date of Institution: 29.09.2023.

                                                                         Date of order: 07.02.2024.

Ramesh Kumar Son of Inderpal, resident of Bath Wali Gali, Gurdaspur Tehsil and District Gurdaspur, Punjab.

                                                                                                                                  …........Complainant.                                                                                                                                                                                                                                                                                                                                                                                                       

                                                                               VERSUS

1.       Apollo Tyres Ltd., 3rd Floor, Areekal Mansion, Panampilly Nagar, Kochi – 682036, through its Authorized Signatory / Managing Officer.

2.       Apollo Tyres Ltd., (Local ABU Office) 66 City Centre, G.T. Road, Amritsar – 143001, District Amritsar, Punjab, through its Authorized representative.

3.       Rajiv & Company Pathankot Road, Gurdaspur, Authorized Dealer Apollo Tyres Ltd., through Sh. Rajiv Gupta.

4.       7 Institutional Area Sector – 32, Gurgaon – 122001, India Apollo Tyres Ltd., through its Concerned Official.

                                                                                                                                  ….Opposite parties.

                                          Complaint U/S 35 of Consumer Protection Act, 2019.

Present: For the Complainant: Sh.Amit Kashyap, Advocate

             For the Opposite Parties No.1 & 2: Mr.Amit Kumar Sharma, Customer Service Engineer & Constituted Attorney.

             Opposite Parties No.3 & 4:  Exparte.

Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.

ORDER

Lalit Mohan Dogra, President.

          Ramesh Kumar, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act, 2019 (here-in-after referred to as 'Act') against Apollo Tyres Ltd. Etc. (here-in-after referred to as 'opposite parties).

2.       Briefly stated, the case of the complainant is that the OP No. 1 is carrying out its business through its corporate head quarter / registered office at Kochi. It is pleaded that the complainant is owner of Hyundai Creta Car Bearing Registration No.PB-06-BC-0060. The complainant purchased the aforesaid Car from Hyundai Agency at Chandigarh for a consideration of Rs.18,00,000/-, having its Bill / Invoice with the complainant. It is further pleaded that  tyres of the car purchased by the complainant were made of Apollo tyres company i.e. OP No. 1. At the time of purchase of Car, it has been clearly stated that Apollo Tyres Company (i.e. OP No. 1) offer two years unconditional warranty on the Tyres. It is further pleaded that on dated 20.08.2023, the frontal left side tyre of the Car  became bulge and after seeing the fault, the complainant immediately rushed towards Hyundai agency and apprised regarding the defective tyre of the Car, but they suggested to the complainant to visit the OP No. 2 who is Authorized Dealer of the OP No. 1 at Gurdaspur for replacement of the tyres as the same is in warranty period and accordingly, the complainant through his nephew Pankaj Kumar approached the OP No. 2 with the request to change/replace the defective tyre of the Car. It is further pleaded that online Claim was lodged by Mr. Pankaj Kumar on behalf of complainant with the OP No. 2  (i.e. Local ABU Office) of the OP No. 1 on dated 21.08.2023 vide complaint Reference No. TC1692605435140, but the OP No. 2 refused to change the tyre and denied the legal and genuine claim of the complainant on a vague and flimsy ground on the basis of alleged inspection report. It is further pleaded that the opposite parties provides/offers unconditional warranty if the tyres becomes unserviceable within 2 years  from the date of  purchase or exhibit 50% wear, but the opposite parties did not consider the claim of the complainant even  after so many request. It is further pleaded that opposite parties have ditched the complainant on one pretext or the other despite the fact that the tyres are still within warranty period. It is further pleaded that since 20.08.2023 to 01.04.2023, the complainant could not ply the car on the road. The complainant made numerous requests to the opposite parties to change the defective tyre, keeping in view the exigency of service being a police official because the complainant serving in Police department at Ferozpur District and due to non-plying of Car, the complainant faced hardship while travelling. It is further pleaded that  the complainant got replaced the tyre of the car from the Hyundai Agency at Gurdaspur for which the complainant paid Rs.7,500/-  out of  which 50% amount has been paid by the agency and only then the Car become fit for plying the same on road, but the fact remains that the OP’s No. 1 and 2 did not change the tyre of the Car although the same is in within unconditional warranty period. It is further pleaded that the complainant has run pillar to post to get his grievances redressed, but neither opposite parties acted upon their liability nor changed the defective tyre, which act on the part of the opposite parties altogether illegal, unlawful, en-ethical and against the commercial policy of the state and against the Consumer Protection Act. It is further pleaded that a Legal Notice to this effect dated 05.09.2023 was served upon the opposite parties. A reply to the legal notice was received by the counsel of the complainant dated 15.09.2023 by the OP No. 4, whereby the opposite parties have denied the legal and genuine claim of the complainant on false, filmy and vague grounds on the basis of alleged inspection report. It is further pleaded that the complainant comes from a respectable family and serving in Punjab Police. The act of the opposite parties materially affected the reputation of the complainant. It is further pleaded that complainant has suffered humiliation publically as well after being spent a huge amount from his hard earned money. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.

          On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay an equivalent amount of the price of Tyre (Make Apollo) to the complainant and also to pay a sum of Rs.50,000/- (Rupees Fifty Thousands) as damages / compensation on account of causing physical harassment, in-convenience and deficiency in services to the complainant alongwith Rs.15,000/- as litigation expenses..

3.       Upon notice, the opposite parties No.1 and 2 appeared through Mr. Amit Kumar Sharma, CSE / Constituted Attorney and filing their written reply by taking the preliminary objections that at the outset, the present complaint is baseless, frivolous and has been formulated on wrong and misleading facts and is devoid of any merits whatsoever. Hence, the answering OP’s No. 1 and 2 denies each allegation made in the complaint. It appears that the present complaint has been filed to gain undue publicity, benefits and bring disrepute to a well-known company like Apollo Tyres Limited and hence, it is liable to be dismissed on this ground alone. It is pleaded that the present complaint is liable to be dismissed on the sole ground that no cause of action has arisen in favor of the Complainant to file the present complaint and also that the complainant is trying to spill all the claims on the answering opposite parties. whereas no wrong is done on part of the replying opposite parties as it is clearly described in the "Technical Inspection Reports" that the cause of damage in the alleged tyre is due to " Sidewall Bulge Due to Impact/ Injury" which causes because of Road hazard, Impact damage, Pinch Shock, Mounting/ Demounting damage, damage on bead, run flat, improper repair, Tread Puncture damaging tyre from inside, Misapplication etc." It's all a service abuse and not any manufacturing defects. It is further pleaded that "Technical Inspection Reports" are based on the inspection done by the experts deployed by the answering opposite parties who inspect the tyre in accordance with the guidelines issued in (ITTAC's Tyre Condition Analysis Guide) which is followed by almost all major tyre manufacturing companies and the inspection is based on those guidelines only. Hence, it is wrong that the answering opposite parties is maliciously denying replacing the damaged tyres in order to get rid of their trading responsibility. It is further pleaded that the complaint is liable to be dismissed on the sole ground that the complaint is filed in contravention of Section 38 (2) (c) of the Consumer Protection Act, 2019. A perusal of the complaint would reveal that the Complainant is, inter alia, alleging in the complaint, a defect in the tyres. Section 38(2) (c) of the Consumer Protection Act, 2019 contemplate that where the complaint alleges a defect in the goods, the District Commission shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test to find out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect. The Appropriate Laboratory as defined in Section 2 (2) of the Consumer Protection. Act, includes only the following:-

• Recognized by the Central Government.
• Recognized by a State Government, subject to such guidelines as may be prescribed by the Central Government in this behalf.
• Any such laboratory or organization established by or under any law for the time being in force, which is maintained, financed, or aided by the Central Government or a State Government for carrying out analysis or test of any goods with a view to determining whether such goods suffer from any defect.

It is further pleaded that the complainant failed to show by providing any evidence whatsoever to prove any "manufacturing defect" in the Tyre. It is by now well settled by various pronouncements of Hon'ble National Commission as well as the Apex Court that it is the responsibility of the Complainant to prove "manufacturing defect" in the tyre and further to prove such a defect, opinion of an Expert is necessary which is not forthcoming in the present case. The present complaint has been filed in contravention of Section 38 (2) (c) of the Consumer Protection Act and that no expert report has been placed by the Complainant.   

          On merits, the opposite parties No.1 and 2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs. 

4.       Opposite party No.3 did not appear despite the service of notice and was proceeded against exparte vide order dated 08.11.2023. Similarly, opposite party No. 4 did not appear despite the service of notice and was proceeded against exparte vide order dated 20.11.2023.

5.       Learned counsel for the complainant has placed on file Self - Declaration of Ramesh Kumar, (Complainant) as Ex.CW-1 alongwith other documents as Ex.C-1 to Ex.C-4 alongwith complaint.

6.       Learned counsel for the opposite parties No.1 and 2 has placed on file affidavit of Mr. Amit Kumar Sharma, (Customer Service Engineer and Constituted Attorney of Apollo Tyres Ltd., Jalandhar) as Ex.OPW-1,2/A alongwith other documents as Ex.OP-1,2/1 to Ex.OP-1,2/4 alongwith reply.

7.       Written arguments not filed by the parties.

8.       Counsel for the complainant has argued that complainant is registered owner of car No.PB-06-BC-0060 and the car was fitted with Apollo tyres. It is further argued that on 20.08.2023 the front left side tyre of the car became bulge and thereafter complainant had approached the authorized dealer of Hyundai with the complaint who has suggested the complainant to lodge the complaint with opposite party No.2 authorized dealer of opposite party No.1 company. The complainant had lodged claim with opposite party No.2 but inspite of fact that the tyre was under warranty of two years, the opposite parties refused to change the tyre on false report Ex.C2. Under the compelled circumstances complainant had to get the tyre change/replaced from dealer of Hyundai Motors at Gurdaspur by making the payment 50% amount and the complainant could not ply his car for more than five months and suffered great harassment. The act of opposite parties amounts to deficiency in service. Counsel for the complainant has also relied upon judgment of Hon'ble National Consumer Disputes redressal Commission, New Delhi in case titled as Good Year India Pvt. Ltd.  Vs. Charanjit Singh, First Appeal No.757 of 2015 decided on 02.05.2017 and as per this judgment manufacturer of the tyres was ordered to pay the cost of defective tyres to the complainant.

9.       On the other hand Mr.Amit Kumar Sharma, Customer Service Engineer & Constituted Attorney/representative of opposite parties No.1 and 2 has argued that as per technical inspection report the damage to the tyre is due to Sidewall Bulge Due to Impact/ Injury" which causes because of Road hazard, Impact damage, Pinch Shock, Mounting/ Demounting damage, damage on bead, run flat, improper repair, Tread Puncture damaging tyre from inside and the said defect was not manufacturing defect. It is further argued that the complainant has not moved any application U/s 38 (2) (C) of the Act for examination of the tyre from expert and as such manufacturing defect is not proved on record and as such there is no deficiency in service and complaint is liable to be dismissed.

10.     Opposite parties No.3 and 4 remained exparte.

11.     We have heard the Ld. counsel for the complainant and representative of opposite parties No.1 and 2 and gone through the record.

12.     To prove his case complainant has placed on record his duly sworn affidavit/self declaration Ex.CW-1, copy of invoice of the car Ex.C1, copy of report given opposite parties Ex.C2, copy of legal notice Ex.C3, postal receipt Ex.C4 whereas opposite parties No.1 and 2 have placed on record affidavit of Amit K Sharma Ex.OPW-1,2/A, copies of power of attorney Ex.OP-1,2/1 and Ex.OP-1,2/2, copy of extract from board Ex.OP-1,2/3, copy of technical inspection report Ex.OP-1,2/4.

13.     It is admitted fact that complainant had purchased Hyundai Creta Car from Charisma Goldwheels (P) Ltd. vide retail invoice Ex.C1 dated 01.06.2022. It is further admitted fact one of the tyre of the car purchased by the complainant developed bulge. It is further admitted that tyre is manufactured by opposite party No.1. It is further admitted fact that opposite parties No.1 and 2 have refused to replace the tyre by relying upon the technical inspection report Ex.C2. The only issue for adjudication before us is whether the tyre with bulge was having manufacturing defect or that complainant is entitled to cost of tyre and compensation.

14.     Perusal of retail invoice Ex.C1 shows that the car was purchased by the complainant on 01.06.2022 and the said car is admittedly fitted with Apollo Tyres manufactured by opposite party No.1 having warranty of two years from the date of purchase. The opposite parties No.1 and 2 have refused to replace the tyre by relying upon the technical inspection report Ex.C2. Perusal of report shows that the opposite parties No.1 and 2 found Sidewall Bulge Due to Impact/ Injury but it is nowhere mentioned in the report that the said technical expert of opposite parties inspected the tyre in the presence of the complainant. Moreover, we are of the view that when the opposite party No.1 is selling its tyres in India, the opposite party No.1 is under obligation to manufacture the tyres by taking into consideration the roads conditions in India and it is common knowledge that roads in India are always not of good condition due to frequent changing weather and as such the plea of opposite parties that the bulge has developed due to impact/injury is not acceptable. The opposite parties No.1 and 2 has taken plea that complainant has not moved application for expert opinion but we are of the view that the report Ex.C2 has been obtained without the presence of the complainant and if there was such an urgency for obtaining the report of the independent  expert no one stopped the opposite parties No.1 and 2 to move application for obtaining expert opinion which shows that report Ex.C2 has been prepared by the employee of opposite party No.1 to help his own company and to avoid liability. We are of the view that since the bulge in the tyre is admitted by the opposite parties and which is visible in the photograhp and as such we do not consider it necessary to obtain any expert opinion at this stage. Moreover, failure to replace the defective tyre with bulge amounts to deficiency in service on the part of opposite party No.1 manufacturer of the tyre.

15.     As far as the plea of the complainant regarding having failed to use his car for travelling from Gurdaspur to Ferozepur is concerned. We are of the view that if complainant had used public transport number of times he could not use his car, the complainant must have saved his expences which he could have spent on the expenses of fuel and wear and tear of the car. On the other hand we are of the definitely view that complainant must have suffered mental tension, harassment and had to approach this Commission for redressal of his grievances.

16.     Accordingly, present complaint is partly allowed and opposite party No.1 manufacturer of the tyre is directed to pay Rs.3,750/- (Half of Rs.7500/-) to the complainant alongwith interest @ 9% P.A. from the date of filing of the present complaint till realization. Opposite party No.1 is further directed to pay Rs.5,000/- to the complainant for mental tension, harassment and costs of litigation. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.  

17.     Copy of the order be communicated to the parties free of charges. File be consigned.                                                                                                                                      

            (Lalit Mohan Dogra)

                                                                                      President. 

Announced:                                                   (B.S.Matharu)

Feb. 07, 2024                                                        Member.

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