BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,FATEHABAD.
Complaint No.:192 of 2017. Date of Instt.: 11.08.2017.
Date of Order: 22.05.2018.
Rajender Beniwal son of Shri Nathuram, resident of village Bhuthan Kalan, Tehsil & District Fatehabad.
…Complainant.
Versus
- Dass Tyre House in front of Union Bank G.T. Road, Fatehabad through its Proprietor.
- Michelin India Private Limited 3rd Floor Aardich Business Park, Sector 48 Sohna Road, Gurgaon through its Manager.
…Respondents/OPs
Complaint U/s 12 of the Consumer Protection Act,1986.
Before: Sh.Raghbir Singh, President.
Sh.M.K.Khurana, Member.
Present: Sh.Inder Singh Sihag, Adv. for the complainant.
Sh.Jagmohan Dhariwal, Adv. for OP no. 1.
Sh. B.S. Parihar, Advocate for OP no. 2.
ORDER
The present complaint under Section 12 of the Consumer Protection Act, 1986 has been filed by the complainant against the Opposite Parties (hereinafter to be referred as OPs) with the averments that he purchased two tyres bearing no. 185/60/15 of Michelin Company from OP no. 1 for a total sum of Rs. 11,200/- on 17.04.2017 vide bill No.9264. The payment of the amount was made in cash and the abovesaid tyres were fitted by him in his private car bearing registration no. HR-22J/6001 on 17.4.2017. The OP no. 2 is manufacturer of the tyres and OP no. 1 is approved dealer of OP no. 2.
2. It is further submitted that at the time of purchase of the abovesaid tyres OP no. 1 assured him that during the warranty period in case any defect occurs in the tyres in that eventuality the same will be replaced by OP no. 1. However, within 2 to 3 days from the date of purchase of the tyres the left side tyre of front side of the car got swollen. Therefore, the complainant took the vehicle to OP no. 1 and asked him for replacement of the tyre. Upon this, OP no. 1 told him that the tyre will be replaced within one or two days. Thereafter, the complainant visited OP no. 1 several times for replacement of the tyre but all in vain. 3. It is also further submitted that the complainant issued a legal notice dated 18.7.2017 through his counsel to the OPs for replacement of the tyre in question. However, OP no. 1 replied that it is the responsibility of the OP no. 2 for replacement of the tyre. The abovesaid act on the part of OPs amounts to deficiency and on account of the same the complainant has suffered financial loss and mental agony. The complainant further prayed that the OPs may be directed for making a payment of Rs. 5600/- as cost of the tyre alongwith Rs. 85,000/- as compensation. Hence the present complaint.
4. OP no. 2 appeared through its counsel and resisted the complaint by filing a written statement wherein various preliminary objections with regard to cause of action, maintainability, jurisdiction, concealment of correct facts etc. have been raised.
5. In reply on merits, OP no. 2 denied that at the time of purchase of the alleged tyres the complainant was assured by OP no. 1 that in case any defect arises in the tyres in question during the guarantee period then the alleged tyres will be replaced with the new tyres. It is further submitted that no guarantee is provided by the OP no. 2 to its customers but only the warranty and that too is conditional and does not cover damage caused by a road hazard or accidents such as cuts, snag, bruise, impact damage and puncture. It is further submitted that in each and every case the tyres sold by OP no. 2 are not replaced with new ones but only in those cases where the defect in the tyres is attributed to the OP No.2. It is also further submitted that actual status and report about the alleged tyre and the alleged defect in the same can be given only after detailed technical inspection which was never carried out by the OP no. 2 as the tyre was never brought to the OP no. 2 for inspection. OP no. 2 in its written statement has denied all the allegations made in the complaint against OP no. 2 and further prayed that the present complaint is without any merits and the same is liable to be dismissed.
6. On 7.11.2017 the learned counsel for the OP no. 1 made a statement that reply filed by OP no. 2 in the present complaint may also be read as reply on behalf of OP no. 1.
7. Learned counsel for the complainant tendered in evidence affidavit of the complainant as Exhibit C-1 alongwith documents Annexure C-2 to C-8 and closed the evidence. On the other hand, Shri Animesh Tripathi authorized dealer of Michelin India Limited tendered in evidence his affidavit as Exhibit RW-2 on behalf of OP no. 2. The learned counsel for the OP no. 2 also tendered in evidence documents as Exhibit RW2/1 and Exhibit RW2/2 and closed the evidence.
8. We have duly considered the arguments advanced by learned counsel for the parties and have also perused the entire material placed on record of the present case. It is the case of the complainant that he purchased two tyres for his private car from OP no. 1 on 17.4.2017 for a total sum of Rs. 11,200/-. However, one of the tyres purchased from OP no. 1 got defected within 2-3 days, after getting the same fitted in his car. It is further the case of the complainant that the defect in the tyre in question occurred on account of inherent manufacturing defect and as such he is entitled for refund of the original cost of the defective tyres along-with compensation. Therefore, the first question that arises for consideration is as to whether the tyre in question was suffering from any inherent manufacturing defect or not. It is a settled proposition of law that to establish the claim of refund of the price of tyre, the complainant is required to prove through cogent, convincing and adequate evidence supported by the opinion of an expert of the subject that the tyre in question suffered from inherent manufacturing defect. In our opinion, the report of expert or an auto mobile engineer is essential, so as to enable this Forum to come to the conclusion as to what were the defects in the tyre and whether these defects were actually inherent manufacturing defects.
9. In the present case, to prove its case, the complainant has relied upon the report Exhibit C-8. A perusal of the same reveals that the same has been given by the tyre puncture mechanic (Mistri). We are of the opinion expert opinion Exhibit C-8 is not authentic convincing or cogent evidence to prove that the tyre in question was having a manufacturing defect as the same has not been submitted by any qualified/competent/expert of the subject. An opinion of a road side puncture Mistri cannot be relied upon. Moreover, the report has been prepared in absence of the OPs without giving any notice to them. Therefore, the same cannot be relied upon. Moreover, his opinion has been obtained after a lapse of about 10 months from the date of alleged defect in the tyre in question. It is also a settled principle of law that onus to prove manufacturing defect is upon the complainant. However in the present case the complainant has failed to prove that the tyre sold to him by the OPs was having a manufacturing defect.
10. In view of the aforesaid discussion, we are of the considered opinion that the complainant has failed to prove any deficiency on the part of the OPs in rendering service to him. The present complaint is accordingly dismissed with no order as to costs. A copy of this order be supplied to the parties free of cost. File be consigned to record room after due compliance
ANNOUNCED IN OPEN FORUM Dt.22.05.2018
(M.K. Khurana)
Member
(Raghbir Singh)
President,
District Consumer Disputes
Redressal Forum, Fatehabad
