PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of June 2012
Filed on : 08/03/2012
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 138/2012
Between
Krishnakumar @ Kannan, : Complainant
Thacheril house, (Party-in-person)
Thrippunithura P.O.,
Vadakkekotta-682 301.
And
1. Appolo Tyres Ltd., : Opposite parties
No. 421 A & C, (1st By Adv. K.M. Vikas, M/s. KNB
Ward No. 1, Edappalli, Nair Associates, 2nd Floor,
Kochi-682 004. Moring Star Building, Kachripady, Ernakulam,
Cochin-682 018)
2. K.P. Varghese & Sons, (party-in-person)
Shanmugham road,
Ernakulam, Kochi-682 031.
O R D E R
C.K. Lekhamma, Member.
Put it shortly the facts leading to this complaint are:-
The complainant has purchased an Appolo Amar Gold 100/20TTE tyre (T174292), manufactured by the 1st opposite party from the 2nd opposite party at a price of Rs. 15,750/-. Within a short period of its purchase the sidewall scoring has been noted in the tyre. When the matter was informed to the 2nd opposite party they found that the defects occurred due to manufacturing defect. After that a claim was put forward to the 1st opposite party through the 2nd opposite party. Thereafter the disputed tyre was examined by the 1st opposite party’s technician and the same was taken to their go down for more verification. After the inspection they informed that the tyre did not suffer from any manufacturing defect, when the claim of the complainant was rejected and the same was informed to the complainant on 06/03/2012. Aggrieved by that the complainant approaches this Forum for redressal of his grievance.
2. Brief facts of the 1st opposite party’s version are as follows:
The vehicle in question is being run for commercial purposes, with the help of a paid driver and helper. Hence the complainant is not a consumer. The tyre submitted by the complainant was examined by Technical Service Engineer’ of the 1st opposite party who is properly trained in tyre technology. Upon the examination of the tyre in question the said Engineer did not find any manufacturing defect. The cause of failure given in the rejection report was “Sidewall scoring” which is not a manufacturing defect, it caused due to fouling with broken leafspring or bolt, overloading, improper inflation, over speeding & brought riding etc. No manufacturing defect was found in the tyre hence the complainant was informed accordingly. The customer friendly policy of the company stands only for manufacturing defects in its products and replace the defective product on Pro-Rata basis. The claim was repudiated on the basis of technical inspection by an expert. The demand of complainant for new tyre along with compensation/interest is also incorrect and baseless. There is no deficiency in service on the part of the opposite party. Hence the complainant is not entitled to get any compensation as prayed for.
3. The version of the 2nd opposite party is as follows:
The 2nd opposite party never found any manufacturing defects in the tyre. The 2nd opposite party has no knowledge about for what reasons the claim of the complainant was rejected by the 1st opposite party. There is no deficiency in service on their part. The 2nd opposite party is only the dealer. Therefore, they are not liable to pay any compensation to the complainant as claimed in the complaint.
3. The complainant appeared in person. The complainant adduced only documentary evidence. Exts. A1 to A3 were marked on his side. The 2nd opposite party adduced oral as well as documentary evidence. Ext. B1 was marked. Heard both sides.
4. The points that arose for determination are as follows:
i. Whether the complainant is entitled to get replacement of the
disputed tyre or not?
ii. Whether the complainant is entitled to get compensation from
the opposite parties?
5. The complainant has purchased the tyre from the 2nd opposite party which was manufactured by the 1st opposite party a renowned company in the field. The complainant is aggrieved by the fact that he could not use the tyre because it was worn out after being used for a short period. The 1st opposite party contended that the said tyre has been examined by their service engineer and the engineer did not find any manufacturing defect in it.
The 1st opposite party further contented that the complainant is not a consumer since the vehicle is being run for commercial purposes. But nothing is before us to substantiate the said contention. In view of that the said point is not sustainable. As per Ext. A1 receipt the complainant purchased the defective tyre on 27-06-2011. Evidently the defects were noted within a short span of time. Ext. A3 photographs go to show the defects of the tyre. The 1st opposite party averred that the complainant has not produced any evidence of an expert to prove the manufacturing defect of the same. But there is no evidence on record to show that the tyre in question was returned to the complainant by the opposite parties after their inspection. Moreover nothing is before us whether the technical expert of the 1st opposite party is qualified enough in conducting the inspection of tyres. We think that the unilateral findings of the 1st opposite party’s expert is not reliable. The Hon’ble National Commission in MRF Limited Vs. Sandipan Kishanrao Deshmukh & Anr (1 (2008) CPJ 165 (NC) held that “ We are of the opinion that having raised the plea in written version that damage to the tyre was due to concussion it was for the petitioner to have proved that plea”. . In view of the dictum laid by the Hon’ble National Commission we have no hesitation to hold that the 1st opposite party is liable to replace the tyre in question with a new one to the complainant.
6. In the facts and circumstances of the case we are not ordering any compensation. But the complainant is entitled to get exemplary costs from the 1st opposite party since they ought to have settled the dispute at the very outset. Accordingly, we allow the complaint in part and order as follows:
i. The 1st opposite party shall replace the tyre in question with a new one of the same description and price to the complainant.
ii. The 1st opposite party shall pay to the complainant Rs. 1,000/- towards costs of the proceedings
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order failing which the said amount shall carry interest @ 12% p.a.
Pronounced in the open Forum on this the 30th day of June 2012.
Sd/-
C.K. Lekhamma, Member.
Sd/-
A Rajesh, President.
Sd/-
Paul Gomez, Member.
Forwarded/By Order,
Senior Superintendent
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of tax invoice dt. 27-06-2011
A2 : Rejection letter dt. 25-02-2012
A3 : Photos
Opposite party’s Exhibits : :
Ext. B1 : Power of attorney
Deposition
DW1 : Thomas P.G.
