Punjab

Ludhiana

CC/14/645

Dr.M.S.Bhasin - Complainant(s)

Versus

Autoserve - Opp.Party(s)

Japinder Singh

24 Apr 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                          C.C.No.645 of 16.09.2014

                                                          Date of Decision:24.04.2015

Dr.M.S.Bhasin, Medical Officer, Civil Hospital, Mandi Gobindgarh, Organizing Secretary Indian Medical Association, Punjab. 

                                                                                      … Complainant

                                             Versus

1.M/s Autoserve,Near Hero Chowk, Opp.Appollo Hospital, G.T.Road, Ludhiana-141003, through its Prop.Mr.Navneet.

2.M/s Goodyear India Ltd., Ist Floor, ABW Elegance Tower, Jasola, New Delhi-110025.                                                                                                                                                               …             Opposite Parties

          Complaint under section 12 of the Consumer Protection Act,1986

Quorum     Sh. R.L.Ahuja, President.

                   Sh.Sat Paul Garg, Member.

                                     

Present       Sh.Japinder Singh, Adv. for complainant.

                   Op1 ex-parte.

                   Sh.Manmohan Singh, Adv. for OP2.

                                                ORDER

R.L. AHUJA, PRESIDENT

1.                Present complaint u/s 12 of the Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed by Dr.M.S.Bhasin(hereinafter in short to be referred as ‘complainant’) against M/s Autoserve,Near Hero Chowk, Opp.Appollo Hospital, G.T.Road, Ludhiana, through its Prop.Mr.Navneet and others (herein-after in short to be referred as ‘OPs’)- directing them to replace the defective tyres with immediate effect besides direction to OP1 to issue the bill of four tyres purchased by the complainant from him alongnwith compensation of Rs.5 lakh by them and Rs.11,000/- as litigation charges and other benefits to the complainant.

2.                In brief, the case of the complainant is that the complainant owns a car of make BMW bearing registration No.PB-48-D-0025 and in order to replace its worn out tyres with new RFT(Run Flat Tyres) of make Bridgestone Potinza, complainant approached Mr.Rajbir Singh of M/s Delhi Automobiles G.T.Road, Khanna being the authorized dealer of MRF, CEAT and Bridgestone tyres. Due to non-availability of these tyres with Mr.Rajbir, he advised and referred the complainant to buy them from OP1 as its owner Mr.Navneet was known to him. In the month of October 2013, complainant approached OP1 and purchased four run flat tyres of make Goodyear at the rate of Rs.18,000/- per tyre from him, who also got them mounted on complainant’s car. Mr.Navneet of OP1 assured about excellent quality of tyres and their standard warranty as per Goodyear’s company policy. However, he failed to issue any bill or warranty policy card at that time on the pretext that his account is on leave and the complainant can collect the same on some other day but later on, he kept on putting off the matter on same pretext. Complainant called upon Mr.Navneet to handover the bill but he informed that as he has not made by sale entry qua those tyres in the current financial quarter, so he shall be providing the same in near future but failed to do, despite repeated requests. On 8.6.2014, two tyres from the above purchased four tyres bursted on G.T.Road, Near Shahabad, Haryana, while the complainant was returning from Delhi with his family members including his mentally retarded child namely Jasneet Singh. When the OP1 was apprised about the incident and also about the poor quality of the tyres but OP1 express his inability to do anything in this regard. Even Mr.Rajbir, called OP1 on the complainant’s behalf but again Mr.Navneet expressed his inability to do anything in this regard. On 9.6.2014, the complainant approached OP1 and instead of addressing to the grievances of the complainant, Mr.Navneet started convincing complainant to purchase two new tyres of the same make so that all the 4 tyres of the car remains same. Regarding the issue of the bursting of tyres, he assured that matter will be taken up with the Goodyear People and on giving assurance, the complainant purchased two new tyres more of make Goodyear from OP1, for which, the complainant again paid Rs.36,000/- and this time also, the OP1 tried to evade for providing of the bill, but on great persuasion, he issued the same. On 12.7.2014, the complainant was shell shocked to observe that both the new tyres which were subsequently purchased from OP1 developed a bulge on their side walls even though they have not covered more than 3000 Kms. The complainant immediately called the OP1 and informed about the poor quality of the tyres, to which, he assured a meeting with Mr.Rampal(tyre expert) from Goodyear Company and Mr.Rampal examined the tyres on 14^th July and remarked that there is a crack on the inner side of the tyres, due to which, it has bulged out, owning to pot hole hit theory, to which, the complainant had objected. Complainant also consulted the tyre expert, who had opined that the bulged out in the tyres due to poor quality and due to manufacturing defect. Despite repeated requests and numerous approaches, Ops flatly refused to replace the defective tyres. Hence, this complaint.

3.                Upon notice of the complaint, Op2 was duly served and appeared through Sh.Manmohan Singh, Advocate and filed the writtenreply, whereas, despite service through notice, OP1 failed to appear and was proceeded against ex-parte vide order dated 21.10.2014 by this Forum.

4.                OP2 filed the written reply through Sh.Manmohan Singh, Advocate, in which, it has been submitted in the preliminary objections that instant complaint filed by the complainant is not maintainable in law and on facts against answering OP as the answering OP is a limited company incorporated in India under the provisions of Companies Act, 1913 an existing Company within the meaning of Companies Act, 1956. No cause of action has arisen qua the answering OP in the instant complaint. On receipt of the complaint and as a matter of goodwill, gesture and reputation which the answering OP enjoys globally, the answering OP deputed one of its engineers to inspect the tyres alleged to have become defective, in line with the ‘warranty policy’ and the ‘Process For Claiming Warranty’ of the company which is a public document and displayed widely including on the website of the company. On thorough and diligent inspection, the engineer vide his spot inspection report dated 14.7.2014, had made the following observations:-

Date complaint                                                              14.7.2014

Date of inspection                                                                   14.7.2014

Name with Contact No.                    Dr.Maninder Singh(9876024199)

Channel-OE/Repl.-                                                        Repl.

Size-                                                  225/50 R17 EAGLE NCT 5 ROF

Sl.no-                                                                                       1613

Nsd-                                                                               7MM

Condition Code-                                                            #36

Observations-

On observation found damage to the sidewall ply cords due to impact/bruise from external object. Such damage normally occurs when tyre is driven over pot holes/curbs/dividers/bumps on roads at high speeds. Tyre does not suffer from any manufacturing defect hence not covered under warranty.

The engineer has thus rightly refused the claim of the complainant as the answering OP is governed by its own warranty policy extended to its esteemed customers and adheres strictly to the same. Had the tyres been suffering from manufacturing defect, if any, the answering OP would have entertained the claim of the complainant and would have gladly replaced the defective tyres in terms of its warranty policy on pro-rata basis. Moreover, the answering OP is not responsible/liable for any warranty/assurance given by the other OP and is governed by its own warranty policy. The answering OP had performed its part of the duty by examining the tyres alleged to have developed manufacturing defect and on examination, the engineer of answering OP prepared a spot inspection report, therefore, there arise no reason for any deficiency in service or any unfair trade practice on the part of the answering OP qua the complainant. The complainant has no locus standi to file the instant complaint before this District Forum as the tyres were got examined by the Engineer of answering OP in the presence of the complainant and the complainant voluntarily and without any coercion signed the Spot Inspection Report dated 14.7.2014 and now the complainant is precluded from re-agitating before this District Forum. Further, the allegation putforth by the complainant against the answering OP is of no substance as it has not been substantiated by any evidence to show that the tyres suffered from manufacturing defect. However, unsubstantiated, vague and bald allegations are considered to be bad in law. On merits, it is denied that the quality of the tyres was poor as such the tyres have bulged out owing to its poor quality is less than 3000 Kms. The certificate mentioned in the complaint is false and fabricated document and is of no evidentiary value since it is not issued by any person who is an expert in rubber and tyre technology. It is denied that the problem of bulging out of the tyres is due to manufacturing defect. Otherwise, similar pleas were taken as taken in the preliminary objections and at the end, denying any deficiency in service and all other allegations made by the complainant against the answering OP in the complaint are denied being wrong and incorrect and answering OP made prayer for dismissal of the complaint with costs.

5.                In order to prove the case of the complainant, learned counsel for the complainant tendered into evidence affidavits Ex.CA to Ex.CE alongwith documents Ex.C1 to Ex.C7, whereas on the other hand, learned counsel for the OP2 adduced evidence by placing on record affidavit Ex.RA2 of Sh.R.K.Gupta, its Manager(Legal) alongwith documents Ex.RW2/1 and Ex.RW2/2.

6.                We have heard the learned counsel for the complainant as well as learned counsel for the OP2 and have also gone through the documents on record very carefully.  

7.                Perusal of the record reveals that it is an undisputed fact between the parties that in the month of October 2013, the complainant had purchased four run flat tyres of make Goodyear from OP1, manufactured by OP2 at the rate of Rs.18,000/- per tyre to OP1. Further, as per the allegations of the complainant that on 8.6.2014, two tyres from the above purchased four tyres bursted and when the OP1 was apprised about the incident and also about the poor quality of the tyres and request was made to replace the said tyres, then OP1 express his inability to do anything in this regard. Rather, OP1 had advised the complainant to purchase two tyres of the same make so that all the four tyres of the car remains same with the assurance that the issue of bursting tyres will be taken up with the OP2, to which, the complainant believed and purchased two new more tyres and paid Rs.36,000/-. Further, as per the allegations of the complainant that on 12.7.2014,  both the new tyres which were subsequently purchased from OP1 had developed a bulge on their side walls even though the same had not covered more than 3000 Kms.

8.                On the other hand, there is specific defence plea of the OP2 that the complainant has failed to prove any manufacturing defect in the tyres in question. Rather, Op2 had deputed one its engineer to inspect the tyres alleged to have become defective, in line with the ‘warranty policy’ and the ‘Process For Claiming Warranty’ of the company, which is a public document and displayed widely including on the website of the company. On thorough and diligent inspection, the engineer vide his spot inspection report dated 14.7.2014 had made his observations that found damage to the sidewall ply cords due to impact/bruise from external object. Such damage normally occurs when tyre is driven over pot holes/curbs/dividers/bumps on roads at high speeds. Tyre does not suffer from any manufacturing defect hence not covered under warranty.

9.                Though, OP2 has taken such stand on the basis of the report of its engineer. But perusal of the evidence of OP2 reveals that OP2 has not furnished any affidavit of engineer who had inspected the tyres in question and had submitted his inspection report dated 14.7.2014. So, no reliance can be placed on the report of the engineer of OP2 who did not furnish his affidavit in support of his Inspection Report dated 14.7.2014.

10.              No doubt, it is a well settled principle of law that in order to prove any manufacturing defect in any product, the opinion of the expert is required for the replacement of the product. But there is exception to that general rule that no expert opinion is required when there appears to be manufacturing defect externally. Since, it is proved fact on record that both tyres of the car of the complainant was bursted after one month of the purchase of the same from the OP1 and the evidence of the OP2 reveals that no second opinion of the expert was taken except the opinion of their own expert, who had submitted his Inspection report dated 14.14.7.2014 in favour of the OP2 being an employee of OP2. But he has not submitted his affidavit in support of his plea. So, under these circumstances, the report of the engineer dated 14.7.2014 cannot be relied upon. But it is proved fact that both the tyres of the car of the complainant bursted in a short span of one month which the complainant had purchased on payment of Rs.36,000/- and non-replacement of those tyres by the Ops clearly amount to deficiency in service and unfair trade practice on the part of the Ops.

11.                In view of the above discussion, by allowing this complaint, we hereby direct the Ops to replace the two defective tyres of the complainant with new tyres or in the alternative, to refund the amount of Rs.36,000/- to the complainant. Further, OPs are directed to pay Rs.5000/-(Five thousand only) as compensation to the complainant on account of mental pain, agony and harassment suffered by him and Rs.2000/-(Two thousand only) as litigation costs to the complainant. Compliance of order be made within 30 days of receipt of the copy of the order, which be made available to the parties free of cost. File be consigned to record room.

 

                               (Sat Paul Garg)       (R.L.Ahuja)

                   Member                    President 

Announced in Open Forum.

Dated:24.04.2015

GurpreetSharma