By Sri. Mohamed Ismayil C.V., Member.
1. The complainant is the proprietor of ‘Kurikkal Chicken Feeds’ at Wandoor dealing with chicken feeds which is one and only source of his livelihood. The complainant had purchased a goods carriage model 3518 from the third opposite party as per invoice dated 25/06/2019 by remitting Rs. 26,30,000/-. The first opposite party is the manufacturer of the vehicle. It is averred that an alert telematics system and BOSCH speed limitation device were installed to monitor to use and control the speed. It is averred that purchase was made after getting assurance from the third opposite party that vehicle was good in quality, efficiency and advantages of fuel efficiency, tyre mileage and less maintenance to the vehicle. It is averred that the vehicle chassis is fitted with 12 tyres manufactured by the second opposite party which was also guaranteed by the third opposite party as very durable and strong. The vehicle was registered with RTO, Nilambur secured registered No. as KL 71G 5214. The vehicle was insured for a total value of 29 lakh rupees. The vehicle was also obtained National permit to carry goods all over India. It is also averred that a loan of Rs. 20,00,000/- availed for purchasing the vehicle. The complainant averred that all 12+1 tyres of the vehicle are manufactured by the second opposite party and same are radial tyres. It is pleaded that the third opposite party had guaranteed the tyres for its mileage, strength and durability. The complainant was plied the vehicle as per instructions of the manufacturer and underwent all periodical services. The wheel alignments and suspension of the vehicle is also verified within the run of 32793 kilometres of the vehicle. On 19/09/2019, 22/10/2019 and 12/03/2020 the vehicle was subjected to alignment and suspension check-up. The complainant never used the vehicle through rough roads or hill tracks. It is averred that all 12 tyres of the vehicle sustained irregular wear with patches and became unfit for running with goods. It is alleged that 8 tyres of them were damaged irreparably. When the defects are noticed, the complainant immediately contacted the third opposite party and handed over the vehicle. Then the second opposite party inspected the tyres there upon noticed unusual damages and confirmed that tyres are unfit for use. But undated letter issued by the second opposite party stated that there was no manufacturing defect to the tyres. The second opposite party pointed out that defect may due to play in suspension, wheel and steering system components, improper balancing of tyres, wheel and steering system components. Incorrect fitting of tyres, improper maintenance of inflation pressure etc. But no specific reason for damage was disclosed. It is pleaded that the complainant never noticed any incorrect fitting of tyres or improper pressure. It is alleged by the complainant that second opposite party is supplying tyres of inferior quality to the first opposite party for a lesser price and the damages were due to its inferior quality which was absolutely manufacturing defect of the tyres. It is averred that the first opposite party is reputed manufacturer of variety of vehicles so expected to supply quality tyres with its vehicles. So it is alleged that all the three opposite parties jointly and severally liable to replace defective tyres and compensate the complainant for all damages and sufferings undergone by the complainant. The acts of the opposite parties are amounted to deficiency in service and so the complainant is entitled to get substituted the damaged tyres with new tyres or refund the cost of 12 tyres with interest 18% per annum. Now the vehicle is kept idle. As a result the complainant is suffering loss of 10,000/- per day. The complainant also entitled for an amount of Rs.50,000/- for the sufferings of mental agony. It is stated that on 19/05/2020 the complainant had issued lawyer notice to the opposite parties but no reply was received. The complainant was prayed that the opposite parties are liable to replace 12 defective tyres or pay Rs. 2,88,756/- as the price of the 12 tyres to the complainant with 18% interest per annum from 06/05/2020 till the date of payment. The complainant also prayed a direction to the opposite parties to pay a sum of Rs. 10,000/- each per day from 06/05/2020 till the date of return of vehicle for the loss sustained by the complainant as the opposite party kept the vehicle in idle condition. The complainant also entitled for an amount of Rs.50,000/- of the sufferings of mental agony. The complainant also demanded cost of the proceedings from the opposite party.
2. The complaint is admitted and issued notices to the opposite parties. The opposite parties have entered in appearance and filed versions separately.
3. The first opposite party is the manufacturer of the vehicle represented by its authorized representative Mr. Midhun N.I., Deputy Manager. It is contended that all allegations made out in the complaint are baseless and incorrect. It is contended that the product of the first opposite party passes through stringent quality check and test trials before the actual start of commercial production. There was no manufacturing defect or unfair trade practices from the side of the first opposite party. It is contended that the complainant is not a consumer as defined in the Consumer Protection Act 2019. The complainant is conducting two proprietary business at Wandoor and Malappuram in the name and style of ‘ Kurikkal Chickens’ and ‘Kurikkal feeds’. Moreover the complainant was owner of several other vehicles and all these vehicles are used for his business activities and not for earning livelihood. The vehicle of the complainant is called as a truck 3518 BSIV which was purchased to make commercial gain and it was a high priced product purchased for commercial purpose. It is contended that the first opposite party is an unnecessary party in the proceedings as pleadings of the complainant is confined to manufacturing defect of the tyres only. There is no expert evidence produced by the complainant. It is contended that the complainant had failed to carry out periodical services and maintenance as stipulated in the operator manual. The complainant was negligent in maintaining the vehicle. When the complainant reported issues related to tyres the tyres were removed and sent to tyre manufacturer since the tyres are proprietary items. The tyre manufacturer informed the complainant that there was no manufacturing defect to the tyres and defects may be due to unbalanced suspension , wheel and steering system , improper balancing of tyres , incorrect fitting , improper inflation pressure etc. It is contended that the first opposite party is in no way liable or responsible for the alleged damages caused to the tyres in the vehicle. The complainant is not entitled for any relief prayed in the complaint from the first opposite party. Hence the opposite party prayed for dismissal of the complaint.
4. The second opposite party is the manufacturer of tyres fitted in the vehicle of the complainant. It is contended that there was no unfair trade practice or deficiency in service from their side and so the complainant is not entitled for any relief as prayed in the complaint. The complainant was using the above said vehicle for commercial purpose. Hence not a consumer. It is stated that technical expert of the second opposite party had examined the tyres and initial claim report was prepared and same was handed over to the complainant. It is added that a detailed inspection report was prepared on 21/05/2020. As per inspection report there was no manufacturing defect to the tyres. As per inspection report rapid wear observed in drive and dummy axle is due to misalignment thrust angle setting drive axle and same was found to be seven times higher than the specified limit in drive axle. It is explained that excessive thrust angle causes all axles to work against each other thus affects all tyres on the vehicle , requires steer axle to be turned to compensate of the push of the rear axle to keep the vehicle moving in a straight path. So excessive thrust results inside/ outside wear in steer axle tyre. It is also commented in the report that proper vehicle alignment and tyre rotation will avoid rapid / uneven wear and increase of tyre mileage. It is alleged that aggressive road surfaces, aggressive driving, improper inflation pressure and over loading also causes damage to the tyres. So it is clear that damage on the tyres were not a result of the design, workmanship or material defects and is related to usage condition of the tyres. The warranty of the tyres excludes uneven or rapid wear caused by mechanical regularity such as wheel misalignment worn / damaged suspension components resulting in damage to the under-tread, carcass or steel belts. It is stated that all findings were reported to the complainant and fast rate wear was not due to any manufacturing defect.The complainant did not produce expert evidence to show manufacturing defect of the tyres.
5. Third opposite party is the dealer of the vehicle owned by the complainant. It is contended that complainant is not a consumer as he was conducting two separate proprietary concern at Wandoor and Malappuram in the name and style of ‘Kurikkal Chickkens’and ‘Kurikkal feeds’. The complainant also owned two other vehicles bearing registration numbers KL 71 G 5214. There is no deficiency in service from the side of the third opposite party and third opposite party was unnecessarily dragged into the matter. It is contended that the complainant had failed to carryout periodical services and maintenance as stipulated in the owner’s manual. The complainant was bound to carry out first wheel alignment at 20,000/- kilometres or within 4 months and first free service was to be availed at 40,000/- kilometres or within 6 months. But the complainant was failed to do so and thereby violated express condition of warranty. The authorized service centre of the second opposite party had inspected the tyres and reported that there was no manufacturing defect in the tyres but they alleged uneven tyre wear was among other things owing to not carrying out proper wheel alignment / rotation. It is stated that the complainant did not take delivery of his vehicle from the third opposite party even after receiving report of the second opposite party. The complainant is not entitled for any relief as sought for in the complaint.
6. The complainant has filed an interim application numbered as IA No. 169/2020 to appoint an Advocate Commissioner to inspect the vehicle and tyres with aid of an expert at the option of the Commissioner. Accordingly, the Commission has appointed an Advocate Commissioner as prayed in the application of the complainant. The Advocate Commissioner examined the vehicle and the tyres with assistance of a tyre technician named Shihab Areekath attached with tyre workshop and filed a report and same is marked as Ext. C1 document.
7. The complainant and the first and third opposite parties have filed affidavits in lieu of evidence. The documents of the complainant is marked as Ext.A1 to Ext.A8 documents. Ext. A1 document is the copy of tax invoice dated 25/06/2019 issued by the third opposite party to the complainant showing price of the vehicle as Rs. 26, 03,960/- (Rupees twenty six lakh three thousand nine hundred and sixty only). Ext.A2 document is the copy of tax invoice dated 25/06/2019 issued by the third opposite party showing fitting of i-Alert Telematics in the vehicle of the complainant. Ext.A3 document is the copy of certificate dated 28/09/2019 issued by Sundaram Iyangar & Sons Private Ltd showing fitting of BOSCH speed limitation device and speed has been set to 60 Kmph in the vehicle of the complainant. Ext. A4 document is the copy of certificate of Registration of the vehicle owned by the complainant. Ext. A5 document is the copy of letter issued by the second opposite party to the complainant showing the details of inspection of the tyres fitted in the vehicle of the complainant. Ext.A6 document is the copy of legal notice dated 19/05/2020 issued by the complainant to the opposite parties. Ext.A7 document is the copy of quotation for tyres issued by Calicut tyres showing the price of the tyres. Ext.A8 document is the copy of statement of transaction pertaining to the financial assistance availed from Sundaram Finance for purchasing the vehicle of the complainant. The documents produced by the third opposite part is marked as Ext. B1 and B2 documents. Ext. B1 document is the copy of letter dated 18/05/2020 issued by the third opposite party to the complainant demanding to pay charges of repair work and terms of the warranty was not applicable to the repair work as the complainant failed to carry out services as specified. Ext. B2 document is the copy of letter dated 05/06/2023 issued by the third opposite party to the complainant demanding to pay Rs. 34,000/- as charges of repair work and take the possession of the vehicle. The second opposite party did not file affidavits to support their contentions made out in the version. So there is no evidence from the side of the second opposite party.
8. Heard both sides in detail and gone through all documents and affidavits including report filed by the Advocate Commissioner. The Commission considered following points to adjudicate the matter.
- Whether the complainant is a consumer as defined in the Consumer Protection Act, 2019?.
- Whether the act of the opposite parties are amounted to deficiency in service?.
- Relief and cost?
9. Point No.1
The case of the complainant is that he had purchased a goods carriage as per Ext.A1 document from the third opposite party, which was manufactured by the first opposite party. All the opposite parties have admitted purchase of the vehicle as stated in the complaint. Ext.A4 document shows that the complainant is the registered owner of the said vehicle. It is averred by the complainant that he had purchased above said vehicle for the purpose of earning of his livelihood. It is further averred that he is the proprietor of ‘Kurikkal chicken feeds’ at Wandoor and in connection with transportation of chicken feeds he had purchased above said vehicle. According to the complainant he had obtained National Permit to carry goods all over India. But unfortunately the tyres fitted in the vehicle became defective as it was found irregular wear with patches and became unfit for running with goods. According to the complainant 8 tyres were damaged irreparably out of 12 tyres. The tyres were manufactured by the second opposite party. It is averred that first opposite party is a reputed manufacturer of variety of vehicles and so they are excepted to supply good quality tyres in their vehicles. The second opposite party supplied tyres of inferior quality to the first opposite party for a lesser price and damages were occurred due to inferior quality. The complainant alleged manufacturing defects to the tyres and so all the three opposite parties are jointly and severally liable to replace defective tyres or refund the price of tyres and compensate for all damages and sufferings undergone by the complainant.
10. But, on the other hand, the opposite parties contended that complainant is not a consumer as defined in the Act. It is argued by the opposite parties that the complainant was conducting two proprietor businesses at Wandoor and Malappuram in the name and style of ‘Kurikkal Chickens ‘ and ‘Kurikkal Feeds’ . Moreover the complainant was owner of several other vehicles and all those vehicles are used for his business activities not for earning livelihood.
11. In the evaluation of evidence, it can be find that the opposite parties are failed to substantiate their contention that the complainant was not a consumer. There is no document available before the Commission to show multi-level business allegedly carried out by the complainant. So, the Commission find that the complainant is a consumer as defined under section 2(7) of the Consumer Protection Act, 2019. Thus the Commission consider that this complaint is maintainable.
12. Point No.2 and 3
The Commission is considering point No. 2 and 3 together as those are inter connected each other. The grievance of the complainant is that the tyres fitted in the vehicle became unfit for use due to manufacturing defects of the tyres. It is admitted by the opposite parties that all the tyres used in the vehicle of the complainant was manufactured by the second opposite party. The complainant has produced Ext. A7 document to show the price of the tyres used in the vehicle of the complainant. The opposite parties did not challenge veracity of Ext. A7 document. It is argued by the complainant that the opposite parties are jointly and severally liable for the deficient service as the tyres used by them in the vehicle of the complainant were suffered manufacturing defects. It is alleged that the second opposite party manufactured inferior quality tyres and sold for low price to the first opposite party and same was used in his vehicle. The complainant argued that even though the vehicle was handed over to the third opposite party for rectifying the defects of the tyres no proper action was taken by the opposite parties. The complainant is alleged that after examination of tyres it was found that tyres were unfit for use and issued Ext. A5 document by the second opposite party.
13. On the contrary, it is argued by the opposite parties that technical expert of the second opposite party examined all tyres used in the vehicle of the complainant and found that there was no manufacturing defect to the tyres. It is argued that defect may be due to play in suspension, wheel and steering system components, improper balancing of tyres, incorrect fittings of tyres, improper maintenance of inflation pressure etc. It is elaborated that rapid wear observed in drive and dummy axle due to misalignment thrust angle setting drive axle and same has found to be seven times higher than the specified limit in drive axle. Excessive thrust angle causes all axles to work against each other affecting all tyres, requires steer axle to be turned to compensate of the push of the rear axle to keep the vehicle moving in a straight path. So excessive thrust results inside / outside wear in steer axle tyre. It is opined by the opposite party that proper vehicle alignment and tyre rotation will avoid rapid /uneven wear and increase of tyre mileage. It is also alleged by the opposite parties that the complainant was failed to carry out periodical services and maintenance as stipulated in the owner’s manual. According to the opposite parties the complainant was bound to carry out first wheel alignment at 20.000/- kilometres or within 4 months and first free service was to be availed at 40,000/- kilometres or within 6 months. Moreover it is argued by the opposite parties that the complainant was fail to produce sufficient expert evidence to support his pleadings of manufacturing defects of the tyres. Moreover the complainant had violated express condition of warranty.
14. In the evaluation of evidence, it has come out before us that 8 tyres manufactured by the second opposite party became unfit for use. But the opposite parties argued that the cause for damage of tyres were due to lack of periodical services and improper maintenance of the vehicle. Even though the complainant has produced Ext. A2 and A3 documents to show maintenance of the vehicle but failed to substantiate pleadings of manufacturing defect of the tyres. Ext.C1 document submitted by the Advocate Commissioner would also suggestive of necessity of laboratorial examination of tyres to find out exact cause of damages of the tyres. Ext.C1 document would reveal that occurrence of damages of 8 tyres may be due to brake jam of the vehicle or due to manufacturing defect of the tyres. So the Commission find that there is no certainty in the cause of damage of the tyres. Though the complainant filed another interim application numbered as IA 232/2022 for further examination of the tyres with aid of an expert by the same Advocate Commissioner, but no proper steps were taken by the complainant to comply the order of the Commission in that regard. It can be find that the opposite parties are blaming the complainant to his improper maintenance and lack of periodical services causing defects of the tyres. It can be find that the Advocate Commissioner prepared Ext.C1 report with assistance of a tyre technician and attributed defect of the tyres due to brake jam of the vehicle also. Moreover the complainant has failed to adduce evidence to show that vehicle was in good condition and the defects of the tyres were occurred exclusively due to manufacturing defects committed by the second opposite party especially in a situation where rival contentions are existed. There is no documents available before the Commission to show that the complainant had conducted periodical maintenance of the vehicle in authorized service station. The Commission also find that it is required more cogent and trust worthy evidence to show that the defects of the tyres were caused due to manufacturing defect. The complainant has failed to substantiate his pleadings with supporting evidence. Hence the complaint is dismissed.
Dated this 27th day of March, 2024.
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A8
Ext.A1 : Copy of tax invoice dated 25/06/2019 issued by the third opposite party to the
complainant showing price of the vehicle as Rs. 26, 03,960/- (Rupees twenty six
lakh three thousand nine hundred and sixty only).
Ext.A2 : Copy of tax invoice dated 25/06/2019 issued by the third opposite party
showing fitting of i-Alert Telematics in the vehicle of the complainant.
Ext A3 : Copy of certificate dated 28/09/2019 issued by Sundaram Iyangar & Sons
Private Ltd showing fitting of BOSCH speed limitation device and speed has
been set to 60 Kmph in the vehicle of the complainant.
Ext A4 : Copy of certificate of Registration of the vehicle owned by the complainant.
Ext A5 : Copy of letter issued by the second opposite party to the complainant showing
the details of inspection of the tyres fitted in the vehicle of the complainant.
Ext.A6: Copy of legal notice dated 19/05/2020 issued by the complainant to the
opposite parties.
Ext.A7: Copy of quotation for tyres issued by Calicut tyres showing the price of the tyres.
Ext.A8: Copy of statement of transaction pertaining to the financial assistance availed
from Sundaram Finance for purchasing the vehicle of the complainant.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 and B2
Ext.B1: Copy of letter dated 18/05/2020 issued by the third opposite party to the
complainant demanding to pay charges of repair work and terms of the warranty
was not applicable to the repair work as the complainant failed to carry out
services as specified.
Ext.B2 : Copy of letter dated 05/06/2023 issued by the third opposite party to the
complainant demanding to pay Rs. 34,000/- as charges of repair work and take
the possession of the vehicle.
