BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.280 of 2016

Date of Instt. 12.07.2016

Date of Decision: 07.06.2017

Jaswant Singh Age 53 years & Nirmal Singh Age 49 years Sons of Mohinder Singh, Residents of Vill. Rajab, Tehsil & PO Kartarpur, Distt. Jalandhar

Through Attorney Jasbir Singh S/o Jaswant Singh, R/o Vill. Rajab, PO Kartarpur, Distt. Jalandhar, Mob. No.98762-19023

..........Complainants Versus

1. Good Year India Ltd., BMC Chowk, Jalandhar.

Through its Director/Manager/Authorized Representative

2. Good Year India Ltd. (Regd. Office)

Mathura Road, Ballabgarh, Faridabad-121004(Haryana)

Through its Managing Director/ Authorized Representative

3. Manku Agrotech, Samana, Distt. Patiala

Through its Prop/Partner/Authorized Representative

….… Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh, (President),

Sh.Parminder Sharma (Member)

Present: Sh. Jasbir Singh, Attorney of the complainant.

Sh. BB Sekhri, Adv. Counsel for OP No.1 and 2.

OP No.3 exparte.

Order

Karnail Singh (President)

1. This complaint filed by the complainant, wherein alleged that the complainant is working as Farmer and he purchased a Combine for agriculture purpose from OP No.3 which is registered in the name of complainant vide Registration No.PB-08-CB-3815, Make Vishal 435 Brisk, Model 08/2012.

2. At the time of purchase, the OP No.3 told the complainant that the tyre of Good Year Company are affixed with above said combine which having a 5 year guarantee from the date of purchase i.e. upto 2017 and assured that in case of any complaint or defect, if arisen in any tyre of the above said combine the same shall be replaced immediately by the OP No.1. Within warranty period in the month of June 2016, one front tyre of above said combine burst due to manufacturing defect. The complainant requested the OP No.3 to repair or replace the burst tyre being under warranty but the OP No.3 told the complainant to contact their authorized dealer/OP No.1 located at Jalandhar and assured the complainant they might replace the defective tyre being under warranty. On 24.06.2016, the complainant gave a defective tyre to OP No.1 for repair/replacement but the OP No.1 refused to replace the said tyre on the remarks that “On observation found Rim Digging an bead area. Tyre does not suffer any manufacturing defect. Hence not covered under warranty”. That inferior quality tyre having manufacturing defect was affixed with combine which burst within warranty period. The matter was also brought into the notice of OP No.2 who told the complainant that OP No.1 is authorized to replace the said tyre. That despite so many requests and several visits made by complainant to OP No.1, the OP No.1 refused to replaced the said tyre. The cause of action arose on 29.06.2016 to complainant when the OP No.1 refused to replace the above said tyre even under warranty period and as such the present complaint filed with the prayer that the complaint may be accepted and OP No.1 and 2 be directed to replace the tyre with new one and in the event of failure to do so, return the cost of tyre amounting to Rs.32,000/- and to pay Rs.3300/- as cost of litigation and further to pay Rs.50,000/- as compensation for mental tension and harassment.

3. Notice of the complaint was given to the opposite parties but OP No.3 despite service did not come present and ultimately OP No.3 was proceeded against exparte.

4. OP No.1 and 2 appeared through their counsel who filed a written reply and contested the complaint by taking preliminary objections that the present compliant is not maintainable in the law and on facts qua the answering OP. It is further alleged that the present complaint is not maintainable in law, as the complainants are not Consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 because as per settled law, a person purchasing goods for commercial purpose is not a consumer within the definition provided under the Consumer Protection Act, 1986. On August 28, 2012, the complainants admittedly purchased a Vishal 435 Brisk Combine fitted Good Year Tyres from the OP No.3, for the purpose of cultivating agricultural land. Therefore, the complainants do not fall under the definition of Consumer because it is to be purchased for the commercial purpose. It is further alleged that on receipt of the complaint regarding the damaged condition of the rear right tyre of his combine on June 24, 2016, the OP No.2 immediately deputed a Technical Expert, Mr. Kawaljit Singh, to inspect the said tyre of the complainant's Combine, alleged to have developed a manufacturing defect. The said Technical Expert, Mr. Kawaljit Singh, has an experience of about 3 years and 5 months in dealing with the tyres and accordingly the said Kawaljit Singh inspected the tyre on 29.06.2016 and submitted a report that there is no manufacturing defect rather the rare right tyre was damaged on the bead area due to rim digging which is caused due to selection of wrong rim size, excessive interference of rim flange with tyre bead area, over load and under inflation pressure and not a manufacturing defect and accordingly the complaint of the complainant was disposed of as per Warranty Policy of the OP No.2 within two working days. On merits, the allegations of the complainant are categorically denied and lastly submitted that the complaint of the complainant is without merit and same may be dismissed.

5. In order to prove the case of the complainant, attorney of the complainant Jasbir Singh tendered into evidence two affidavits Ex.CA and Ex.CB alongwith some documents i.e. Certificate of Registration as Ex. C-1 and Spot Inspection Report as Ex.C-2 and closed the evidence.

6. Similarly, counsel for opposite parties No.1 and 2 tendered into evidence affidavit Ex.OP-1 alongwith some documents Ex.RW1/1 to Ex.RW1/3 and also tendered into evidence another affidavit Ex.OP-2 and closed the evidence

7. We bestowed our thoughtful consideration to the submissions made by the complainant in person and learned counsel for the OP No.1 and 2 and also gone through the case file very minutely.

8. It is not disputed in this case that the complainant has purchased a combine alongwith fitted tyre of Good Year Company, from OP No.3 and it is also admitted fact that the guarantee of the said tyre is 5 years from the date of purchase means up to 2017 but in the month of June 2016 i.e. in 3-4 years, one of the front tyre of the said combine was burst due to manufacturing defect as alleged by the complainant in the complaint and accordingly he approached the OP No.1 and 2 to repair or replace the tyre but they refused.

9. The plea taken by the OP for refusing to replace or repair the said tyre on the ground that the tyre is not burst due to any manufacturing defect rather the tyre was bursted due to the reason that a bead area due to rim digging which is caused due to selection of wrong rim size, excessive interference of rim flange with tyre bead area, over load and/or under inflation pressure and not a manufacturing defect. This version is given by the engineer of the OP and said version is brought on the file by the complainant as Ex.C-2. Similar report has been also brought on the file by the OP as Ex.RW1/2 but we are not agree with the version of the said engineer/mechanic that the said tyre was damaged due to wrong rim size or due to over load or under inflation pressure because if the size of the rim is wrong then it will not cope with the rim for about 4 years. It was bursted at a very initial stage. So, the opinion given by the Expert is not correct version rather we find that the tyre of the combine was bursted due to some technical defect in the tyre. If so then, it is the duty of the OP to replace the tyre because it was well within the warranty period, but without any reason and rhyme, the OP has declined/refused to replace the said tyre and as such we find much force in the argument of the complainant and therefore complaint of the complainant is partly accepted and OP No.1 and 2 are directed to replace the damaged tyre with new one tyre to the complainant, after getting back the old tyre from the complainant and further OP No.1 and 2 are directed to pay compensation of Rs.5000/- for harassment and mental agony and further also pay a sum of Rs.2000/- as litigation expenses. The entire compliance be made within one month from the date of receipt of the copy of order, failing which the OP No.1 and 2 are further liable to pay interest on the aforesaid whole amount i.e. Rs.7000/- @ 9% per annum from the date of filing the complaint till realization. Complaint could not be decided within stipulated time frame due to rush of work.

10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

07.06.2017 Member President