2.          The case of the complainant in brief is that he purchased Hyundai Verna CRDI-SX 1.6 from opposite party no.2 with the tyre fitted of Bridgestone Company and it was registered with the office of DTO Gurdaspur vide registration no.PB06-AB-8600 and the vehicle was still under warranty. Few days back, he noticed that one of the tyre of his car was having bulging as the car suddenly started giving vibration when it was running. He immediately approached the opposite party no.2 and informed about the defect in the tyre of the car with request to replace the same as it was within period of warranty i.e. only after running 4050 kilometers. To his utter surprise, he received information from the opposite parties that the bulging in the tyre was due to impact of some external hard object, which was totally false reporting because when the matter was reported to the opposite party no.2 and at that time nothing wrong on the part of driving. His claim was repudiated/rejected by the opposite parties through letter dated 19.5.2015 which is totally wrong and has caused mental harassment to him. Hence this complaint.  

3.       Upon notice, the opposite party no.1 appeared and filed its written reply through its counsel by taking the preliminary objections that the complaint filed by the complainant is not legal and valid and therefore not maintainable ; the complaint of the complainant is baseless, frivolous and it has been filed with the ulterior motive to harass the opposite parties and as per the provisions of the Consumer Protection Act, 1986, if the complaint relates to any defects in the goods then proper adjudication of the complaint, test/analysis of the alleged defective goods, as per Section 13(1) © of the Consumer Protection Act needs to be carried out in for ascertaining the real cause of the alleged defectiveness of the tyre. On merits, it was submitted that on receipt of the complaint of the complainant by opposite party no.2, opposite party no.2 informed and forwarded the complaint to opposite party no.1 for arranging physical inspection of tyre. That on 19.05.2015, technical service engineer of opposite party no1. inspected one tyre of size 195/55 R16T pattern B250 bearing Serial no.CFN 3614 of Bridgestone branch in presence of the complainant’s representative. That after inspection of the tyre it was reported that the damage in the tyre was impact bulging caused due to impact/pinching of the sidewall with an external road hazards which resulted  into damage of the plycords. Since such damage was not attributable to manufacturing defect, therefore the claim of the complainant was rejected. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.

4.       The opposite party no.2 appeared and filed its written reply through its counsel by taking the preliminary objections that complaint of the complainant is not maintainable and is liable to be dismissed; complaint is bad for non-joinder and mis-joinder of the necessary parties. It is the Hyundai Motors India Ltd, which provides warranty to its customers. Moreover, dispute of the complainant is relating to the tyres of the car and the manufacturing company of the car does not provide any warranty on the tyres of the car and it has been clearly mentioned in the service book provided by the company to its customers and as such complaint is liable to be dismissed and there is no deficiency in service as alleged in the present company. On merits, it was admitted that complainant had purchased car in dispute from opposite party no.2 with tyres fitted of Bridgestone Company. It was next admitted that complainant had visited to opposite party no.2 and had reported about defect in the tyres of the car and it was submitted that as per request of the complainant on 11.5.2015, request letter was issued to dealer of Bridgestone Company to check the tyres of the car of the complainant. It was further admitted that the claim of the complainant was rejected by the opposite parties as per report. It has been informed that there is no manufacturing defect in tyre, so the question of changing the same does not arise. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.

5.      Complainant tendered into evidence his own affidavit Ex.C-1/A  alongwith other documents Ex.C-1 to Ex.C-4 and closed the evidence.

6.          Counsel for the opposite party no.1 tendered into evidence affidavit of Sh.Saurabh (Service Engineer) Bridgestone Ex.OP-1, alongwith other documents Ex.OP-2 to Ex.OP-9 and Mark A and closed the evidence.

7.     Sh.Gurwinder Singh, Working as Service Manager of Novelty Hyundai tendered into evidence his own affidavit Ex.OP-2/1 alongwith other documents Ex.OP2/2 to Ex.OP-2/5 and closed the evidence.

8.       We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for some documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute has prompted at the opposite parties (both the OP1 & the OP2)’s refusal to replace complainant’s damaged one Car-Tyre alleged to have ‘side-bulged’ on account of ‘inherent’ manufacturing defect. The OP2 Car Vendor has refused to accept any liability or any responsibility of even any ‘assistance’ to the complainant in his endeavor to the said ‘tyre-replacement’ on the strength of clause ‘3’ (what is not covered) Ex.OP2/ Ex.OP3 of Hyundai New Vehicle Warranty that states as: ‘Batteries, Tyres and Tubes equipped on Hyundai vehicles are warranted directly by the respective manufacturers and not by HMIL (Hyundai Motor India Limited)’. However, we find that the OP2 vendor (HMIL dealer) has been an entirely different entity than its principal HMIL and thus the said Policy does not provide an ‘umbrella protection’ to them and for that matter may not even to HMIL in all consumer issues.

9.       The complainant having successfully proved (with both OP’s admitting) the fact of ‘side-bulging’ of the Car-Tyre had shifted the ONP (onus of proof) upon the titled opposite parties to produce sufficiently cogent evidence on records of the present proceedings so as to prove that said ‘defect’ had been caused directly by the ‘acts or omissions’ on the part of the complainant. The OP1 Manufacturers could produce only ‘one’ relevant evidence by way of exhibit Mark-A (with Ex.OP3)/same as OP4/(with ExOP2/4)/same as Ex.C1 i.e., Claim Form # 531953 (Bridgestone) dated 19.05.2015 for replacement of Tyre size: 195/55 R16; with Serial No: 4wL3CFN3614 and Pattern as: B250TL (Tube-Less); with Claim Advice Letter Judgment as: “Impact bulging in Tyre due to impact of external hard object, pinching of Tyre between Rim and Pot Side; Causing ply-chord damage; results bulging; No manufacturing fault of tyre.” The referred report has been signed by the Inspecting Official and upon which OP1 Service Engineer has based his Affidavit Ex.OP1 deposing the fault in tyre as other than manufacturing defect. The Tyre Inspector has somehow not submitted his affidavit with his judgment/ report. However, no usage fault/misusage etc of the damaged tyre has been detected/ reported during the inspection of the damaged tyre that was manufactured to run on hard grounds/pebbles/objects and to suffer and withstand the pinches/pressures of hard usage without any ‘bulging’ etc that has been known as an established and primary sign of ‘inherent’ defect unless proved otherwise through misusage, overinflating/under inflating etc and that have never been the case of the titled opposite parties. All other collateral documents as produced by the litigants during the present proceedings have been found to be of much relevance to the present prime issue in question.

10.     We also find here that the OP1 Tyre Manufacturers had suo-moto sought (and were granted on 20.01.2016) permission to get the defective ‘Tyre’ Lab-tested (at Govt. approved Laboratory) but subsequently procrastinated its placement on records even after having availed repeated adjournments for the purpose for unexplained reasons and that surely raises an adverse judicial presumption. Lastly, from the documentary evidence as available on the record proceedings, we find that the ‘Car-Tyre’ had bulged during the normal routine usage/driving and not even an aspersion of complainant’s ‘act/omission’ stands attributed to him.

11.     We have carefully gone through the OP quoted/cited superior courts’ judgments to respectfully concur with the so-determined legal propositions but are of the considered opinion that these shall not assist the cause of the opposite parties on account of variance in ratios of respective issues of law and fact. To sum it up all, we find that the titled Opposite Parties have arbitrarily repudiated the present claim of defective Car Tyre replacement and instead have casted humiliating aspersions upon the complainant who incidentally belongs to the world’s most noble ‘medical’ profession; And, in the absence of any cogent evidence of ‘falsity’ of claim, the OP’ impugned repudiation of the same does not entail legality under the applicable law and need be set-aside.     

12.     In the light of the all above, we partly allow the present complaint and thus ORDER the titled OPs to replace the complainant’s damaged Car Tyre with a new ‘fresh’ Tyre of requisite specifications besides to pay him Rs. 5,000/- as compensation (for the harassment inflicted) and Rs.3,000/- as cost (of litigation) within 30 days of the receipt of the copy of these orders otherwise the aggregate awarded amount shall attract interest @ 9% PA form the date of the orders till actual payment. 

13.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records. 

                                                             (Naveen Puri)

                                                                    President.     

ANNOUNCED:                                           (Jagdeep Kaur)

August 17, 2016.                                        Member.

*MK*