BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 334 of 2016
Date of Institution: 19.7.2016
Date of Decision: 7.11.2017
Mr. Mohit Kumar son of Sh. Kirti Kumar R/o House No. 51-A, Gali No. 5-B, Shaheed Udham Singh Colony, Outside Gate Khazana , Amritsar 78371-25500
Complainant
Versus
- Goodyear India Limited, Registered office Mathura Road, Ballabgarh, Faridabad-121004, Haryana India through its Partner/Proprietor/Authorized Signatory
- Bhagat Ford Agency, G.T, Road, Bye pass, Amritsar through its Partner/Proprietor/Authorized Signatory
- Kawaljit Singh Technical service Engineer of Good Year India Limited, Ground Floor, Lally Building, BMC Chowk, Amritsar
Opposite Parties
Complaint under sections 12 & 13 of the Consumer Protection Act, 1986
Present: For the Complainant : Sh.Kanwar Mubarak Singh,Adv.
For the Opposite Parties No.1 & 3: Sh.B.S.Rajput,Advocate
For the Opposite party No.2 : Ex-parte
Coram
Sh.Anoop Sharma, Presiding Member
Ms.Rachna Arora,Member
Order dictated by:
Ms.Rachna Arora, Member
1. Mohit Kumar, complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant purchased Ford Figo car bearing registration No. PB-02-CC-3777 in July 2013 from opposite party No.2 and in the aforesaid vehicle tyres of opposite party No.1 company were affixed having warranty of five years from the date of purchase. The complainant approached opposite party No.2 regarding the complaint in one tyre on 26.5.2016 as same became shapeless. Opposite party No.2 suggested the complainant to lodge online complaint on toll free number of opposite party No.1. The complainant lodged complaint on toll free number on 2.6.2016. On 2.6.2016 complainant received a call from opposite party No.3 regarding inspection of tyre. The complainant approached opposite party No.3 at Punj Tyre Store, Near Hall Gate, Amritsar but it did not change the shapeless tyre without any sufficient reason. The complainant got served legal notice upon the opposite parties dated 3.6.2016 but the opposite parties failed to comply with the legal notice. Alleging the same to be deficiency in service complainant has filed the present complaint seeking the following reliefs:-
(a) Opposite parties be directed to change/replace the shapeless tyre or to refund the amount covered under the tyre in question ;
(b) Compensation to the tune of Rs. 1,00,000/- alongwith litigation expenses to the tune of Rs. 15000/- may also be awarded to the complainant.
Hence, this complaint.
2. Upon notice, opposite parties No.1 & 3 appeared and filed written version taking certain preliminary objections therein inter alia that complaint is not maintainable as no cause of action has arisen in favour of the complainant and against the answering opposite parties as there is no unfair trade practice or deficiency in service on the part of the answering opposite parties. It was submitted that opposite party No.1 on receipt of the complaint No. Q-2605160190 regarding damage in the rear right tyre of his car, immediately deputed opposite party No.3 having an experience of 3 years to inspect the said tyre of the complainant’s car alleged to have developed a manufacturing defect. On June 2,2016, the opposite party No.3 after inspecting the tyre in question prepared a spot inspection report dated 2.6.2016 wherein he categorically stated that as there is no manufacturing defect in the tyre in question, same is not covered under the warranty policy of opposite party No.3. The complaint is not maintainable in view of the settled legal position that the onus to prove manufacturing defect is on the consumer/complainant. As the complainant has not submitted any report of expert to establish that the tyre in question indeed suffered from an inherent manufacturing defect as alleged, therefore, the complaint is not maintainable and is liable to be dismissed. As per the observations of opposite party No.3 in the spot inspection report dated 2.6.2016 the belts of the tyre in question has damaged due to puncture repair on the tread area. Such condition in a tyre usually occurs when the tyre is repaired in an improper manner. There is no manufacturing defect in the tyre in question. It is pertinent to mention here that as per clause B(I)(vii) of the opposite party No.1 warranty policy, which is reproduced herein below:-
“B Warranty-Exclusions & Limitations
- The warranty does not cover tyre damage or irregular wear & tear caused or arising from any of the following reason:
(vii) Improper Repair”.
A bare perusal of the aforesaid clause of warranty policy, it is apparent that damage in a tyre due to improper repair is not covered under the warrantable condition as per the said warranty policy. As such, opposite party No.3 rightly rejected the claim as not covered under the warranty policy of opposite party No.1. It was further submitted that the complainant had purchased his car in the year July 2013 and as on the date of inspection i.e. June 2,2016, it had already covered a distance of 25000 kms. This shows that , had the tyre in question indeed suffered from any manufacturing defect as alleged, it would not have run for even a few kms without any complaint. While denying and controverting other allegations, dismissal of complaint was prayed.
3. Opposite party No.2 did not opt to put in appearance despite service of notice, as such it was ordered to be proceeded against ex-parte.
4. In his bid to prove the case complainant tendered into evidence his duly sworn affidavit Ex.CW1/A, copy of legal notice dated 3.6.2016 Ex.C-1, postal receipts Ex.C-2, copy of RC Ex.C-3, copy of retail invoice dated 22.7.2013 Ex.C-4 , affidavit of Sh. Lalit Kumar, Mechanical Enginner Ex.CW2/A, copy of the certificate Ex.C-5, photographs Ex.C-6 & Ex.C-7, copy of certificate issued by Lalit Kumar Ex.C-8 and closed the evidence.
5. To rebut the aforesaid evidence Sh.B.S. Rajput,Adv.counsel for opposite parties No.1 & 3 tendered into evidence affidavit of Sh.R.K.Gupta, Manager, Goodyear India Ltd. Ex.OP1/1, affidavit of Sh. Kawaljit Singh, Technical Service Engineer Ex.OP3/1, copy of warranty policy Ex.OP1,3/1, copy of spot inspection report dated 2.6.2016 vide Sr.No. 630772 Ex.OP1,3/2, copy of tyre condition analysis guide Ex.OP1,3/3 and closed the evidence on behalf of opposite parties No.1 & 3.
6. We have heard the ld.counsel for the parties and have carefully gone through the record on the file.
7. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainant purchased Ford Figo car bearing registration No. PB-02-CC-3777 in July 2013 from opposite party No.2 . In the aforesaid vehicle tyres of opposite party No.1 company were affixed having warranty of five years from the date of purchase. The complainant approached opposite party No.2 regarding the complaint in one tyre on 26.5.2016 as same became shapeless. Opposite party No.2 suggested the complainant to lodge online complaint on toll free number of opposite party No.1. Hence, on the advice of opposite party No.2, the complainant lodged complaint on toll free number . On 2.6.2016 complainant received a call from opposite party No.3 regarding inspection of tyre. The complainant approached opposite party No.3 at Punj Tyre Store, Near Hall Gate, Amritsar but it did not change the shapeless tyre without any sufficient reason. The complainant submitted that as the tyre in question is within the warranty period and even then the opposite parties did not pay any heed to the genuine request of the complainant. The complainant submitted that all this amounts to deficiency of service on the part of the opposite parties.
8. Whereas the case of opposite parties No.1 & 3 is that on receipt of the complaint No. Q-2605160190 regarding damage in the rear right tyre of his car, opposite party No.1 immediately deputed opposite party No.3, who has having an experience of 3 years, to inspect the said tyre of the complainant’s car alleged to have developed a manufacturing defect. On June 2,2016, the opposite party No.3 after inspecting the tyre in question prepared a spot inspection report dated 2.6.2016 wherein he categorically stated that as there is no manufacturing defect in the tyre in question, same is not covered under the warranty policy of opposite party No.3. The complaint is not maintainable in view of the settled legal position that the onus to prove manufacturing defect is on the consumer/complainant. It was submitted that as the complainant has not submitted any report of expert to establish that the tyre in question indeed suffered from an inherent manufacturing defect as alleged, therefore, the complaint is not maintainable and is liable to be dismissed. It was further submitted that as per the observations of opposite party No.3 in the spot inspection report dated 2.6.2016 the belts of the tyre in question has damaged due to puncture repair on the tread area. Such condition in a tyre usually occurs when the tyre is repaired in an improper manner. There is no manufacturing defect in the tyre in question, as such opposite party No.3 rightly rejected the claim as not covered under the warranty policy of opposite party No.1. It was further submitted that the complainant had purchased his car in the year July 2013 and as on the date of inspection i.e. June 2,2016, it had already covered a distance of 25000 kms. This shows that , had the tyre in question indeed suffered from any manufacturing defect as alleged, it would not have run for even a few kms without any complaint. Ld. Counsel for the opposite parties submitted that there is no deficiency of service on the part of the opposite parties No.1 & 3 qua the complainant.
9. From the entire above discussion we have come to the conclusion that complainant purchased the car in question Ford Figo from opposite party No.2 in July, 2013 vide invoice Ex.C-4 for a sum of Rs. 6,17,999/- . It was the case of the complainant that in the aforesaid vehicle tyres of opposite party No.1 company were affixed which are having warranty period of five years from the date of purchase of vehicle . One tyre of the vehicle became shapeless on 26.5.2016 and in this regard complainant approached opposite party No.2, who referred the complainant to opposite party No.1. The complainant lodged online complaint with opposite party No.1 and opposite party No.1 told the complainant to approach opposite party No.3 at Punj Tyre Store, Near Hall Gate, Amritsar . Consequently opposite party No.3 inspected the tyre but did not change the shapeless tyre without any sufficient reason as it was told by them that there is no manufacturing defect in the tyre in question. The complainant also sent legal notice in this regard to the opposite parties Ex.C-1 but even then the opposite parties did not replace the tyre of the vehicle. The complainant produced on record the photographs of the tyre of the vehicle Ex.C-6 and Ex.C-7 which fully prove that the tyre has swollen and became shapeless. In this regard complainant also produced on record expert opinion of Sh. Lalit Kumar, Mechanical Engineer, who has also tendered his degree in Mechanical Engineer Ex.C-5, and submitted his duly sworn affidavit , copy of which is Ex.CW2/A as well as certificate Ex.C-8 certifying that there is manufacturing defect while manufacturing the said tyre due to which it became shapeless and is presently useless tyre. On the other hand opposite parties No.1 & 3 have produced in rebuttal evidence affidavit of Sh. Harpreet Singh Ex.OP1,3/A, who is only a customer service manager but has not tendered any degree or diploma to give his expert opinion .Rather the opposite parties No.1 & 3 have produced on record affidavit of Sh. Kawaljit Singh, Technical Service Engineer Ex.OP3/1 , who has only checked the tyre but has not produced any degree or diploma to give his expert opinion. As such the finding given by opposite party No.3 that there is no manufacturing defect seems to be incorrect, in the absence of any expert report. Resultantly this report filed by the Technical Service Engineer of the Goodyear India Limited is not based on true facts and not a comprehensive report.
10. The complainant through his affidavit Ex.C-1 has categorically stated that the tyre became shapeless due to manufacturing defect. Opposite party has not filed any application to get the tyre tested from the proper laboratory. Consequently we have come to the conclusion that the tyre of the aforesaid car had became shapeless due to manufacturing defect i.e. defect in the rubber and the material used for the manufacturing company.
11. Consequently we hold that opposite parties No.1 & 3 are liable to replace the tyre in question with new one of same make and model as the same became shapeless due to defect in the material used for the manufacturing of these tyre.
12. Consequently we allow the complaint with costs and the opposite parties No.1 & 3 are directed to replace the tyre of the car in question with new tyre of same make and model , within one month from the date of receipt of copy of orders. However, complaint against opposite party No. 2 stands dismissed. Opposite parties No.1 & 3 are also directed to pay litigation expenses Rs. 2000/- to the complainant. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated : 7.11.2017
