BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
THURSDAY, the 2nd day of July, 2015
First Appeal No.3/2014
M.Murugan, S/o Natesan,
New No.37, Selva Vinayagar Koil Street,
Nellikuppam, Cuddalore District,
Tamilnadu …………. Appellant
Vs.
1. Hussain Industries,
Rep. by its Proprietor,
No.71,Main Road, Ariyur,
Puducherry.
2. M/s MRF Limited,
Rep. by its Managing Director,
4th Floor, G.K.S.Towers,
935, Poonamallee High Road,
Chennai. ……….. Respondents
(On appeal against the order passed by the District Forum, Puducherry in Consumer Comp laint No.20 of 2011, dated 24.02.2014)
Consumer Complaint No. 20 of 2011
M.Murugan, S/o Natesan,
New No.37, Selva Vinayagar Koil Street,
Nellikuppam, Cuddalore District,
Tamilnadu …………. Appellant
Vs.
1. Hussain Industries,
Rep. by its Proprietor,
No.71,Main Road, Ariyur,
Puducherry.
2. M/s MRF Limited,
Rep. by its Managing Director,
4th Floor, G.K.S.Towers,
935, Poonamallee High Road,
Chennai. ……………. Respondents
BEFORE:
HON’BLE THIRU JUSTICE K.VENKATARAMAN
PRESIDENT
TMT.K.K.RITHA,
MEMBER
FOR APPELLANT/COMPLAINANT:
Thiru S.Vimal,
Advocate, Puducherry.
FOR RESPONDENT/COMPLAINANT.:
Thiru K.Karthik,
Advocate, Puducherry
O R D E R
(Tmt.K.K.Ritha, Member)
The complainant filed the present appeal against the order of the District Forum, Puducherry in C.C.No.20/2011, dated.24.02.2014.
2. The brief facts are that on 13.09.2010, the complainant purchased two sets of tyres and tubes from the first respondent/O.P. for a sum of Rs.9,600/- under Bill No.191252, in the name of his friend Kanagaraj. He used the tyres and tubes only for three months till the 2nd week of December, 2010, when one of the tyres developed horizontal crack while riding the vehicle without any fault of the appellant/complainant. He informed the same to the 1st respondent and requested to replace the defective tyre with a new one. The complainant entrusted the tyre with the 1st respondent, who informed him that it could be rectified only after getting the approval from the 2nd respondent. On 01.01.2011, the first respondent called the appellant/complainant to take back the tyre without giving any reason. Thereafter, the appellant approached the Voluntary Consumer Organization for redressal. Then the 2nd respondent sent the inspection report to the Voluntary Organization stating that there is no manufacturing defect which according to the appellant, is not true. Hence, the appellant approached the Consumer Forum to redress his grievance against the respondent for the unfair trade practice in selling the defective product and their refusal to replace the tyre.
3. The 2nd respondent contents that the said tyre was purchased by one Kanagara j and not by the appellant and hence the appellant is not entitled to file the complaint for any compensation. Moreover, the transaction is purely commercial in nature. The complaint filed by the appellant before Consumer Federation of Tamil Nadu was dismissed and so the complaint before the Consumer Court is not maintainable under the principle of Res Judicata. The inspection of the tyre shows that it was not a manufacturing defect and the appellant failed to prove any manufacturing defect in it. The 2nd respondent prays to dismiss the appeal as the appellant has no locus standi to file the complaint before Consumer Forum.
4. The District Forum dismissed the complaint on the ground that the tyre in dispute was purchased in the name of Kanagaraj and not in the name of Murugan, the complainant and relied on the decisions, dated 11.08.2010 reported in 2010(4) CPR 273 of Tamil Nadu SCDRC and II (2013) CPJ 505 (NC) in R.P.No.3188 of 2010 decided on 01.03.2013 in the case Amirtha Sharma Vs. BHEL & Others.
5. We have heard the learned counsels for the parties and perused the documents and decided the case placed before us. The moot question before this Commission is whether N.Murugan, the complainant, is a consumer or not? If so, is there is any unfair trade practice on the part of respondents?
6. The complainant stated before this Commission that he is an illiterate and a self employed labour as bullock cart driver from a village. Due to his ignorance, the cash bill was raised in the name of his friend Kanagaraj, who accompanied the complainant but in reality the money was paid by the complainant himself. The complainant used the tyre for his bullock-cart for a period of just three months and vertical crack happened in one of the tyres without any fault of his. Due to this defective tyre, the complainant was unable to eke out his livelihood by making use of the bullock-cart. The 2nd respondent’s rejection to rectify the defect or to replace the defective tyre gave shock to the complainant, because he had used the tyre only for three months.
7. The 2nd respondent submitted that the tyre was purchased in the name of Kanagaraj and not in the name of the appellant. The transaction pertains to commercial purpose and hence the complaint is not maintainable. Also the complaint is barred by the principles of Res Judicata. The appellant failed to prove any manufacturing defect in the tyre. Hence, there is no defect in the tyre and no unfair trade practice on their part.
8. In order to decide whether the appellant is a consumer or not,we have to substantiate Section 2(1)(d)(i) of Consumer Protection Act, 1986 which means “ any person who ………
- Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose;
9. The above definition of ‘consumer’ means, a person who buys goods for a consideration and also any user of such goods other than the person who buys such goods for consideration and used with the approval of such person. In the present case, the appellant/complainant was in usage of the tyre eventhough the bill was in the name of Kanagaraj. Approval cannot be visualized in the form of any writing, but, it can be inferred by the mere usage of the tyre by the appellant/complainant. As the learned counsel for the complainant put forth that it is prevalent and usual in villages and in close knit families to make such use of it with the approval. Hence, the contention that the complainant had not obtained approval for the usage of the tyre cannot be accepted. According to the complainant, he had used the tyres from the date of purchase and he only approached the first respondent for replacement of the defective tyre. Also, the complainant was taken aback when the respondents refused to replace the tyre. From this, it is clear that throughout the tyre was used only by the complainant and this fact had not been disputed by the respondents or by Kanagaraj. The Appellant /complainant was the user of the tyre from the date of its purchase till the alleged defect and such usage was not disputed by anybody. The tyre was used only by him and thus he comes under the ambit of ‘consumer’. Hence the contention of the respondent that the appellant had not obtained approval for the usage of the tyre cannot be accepted. The facts and circumstances of the case amply reveal that the tyre was in the possession of the appellant and he was the sole user of it. In consumer complaints technicalities cannot over shadow the facts of the case.
Thus the appellant comes under the ambit of a consumer as per the Act and he is a consumer before this Commission.
10. The 2nd respondent’s side relied upon the following citations:
- 2010(4) CPR 275
Editor, Daily Thanthi & Another Vs. R.Balaguru
In this case, the appellant alleged deficiency in service for mistaken publication with respect to World Cup Cricket Match. The appellant had not purcahsed the newspaper published by the respondent for consideration and so he is not a consumer. A consumer complaint can be filed only by a consumer. The mental agony and loss suffered by him and his claim of Rs.14,75,000/- has emanated from his fertile imagination.
11. In the case on hand, the appellant comes under the ambit of a consumer, as a user of the tyre which was not disputed or challenged by the respondents or Kanagaraj.
2. 2013(II) CPJ 505 (NC)
Amit Sharma Vs. BHEL
In this case, the complaint is not maintainable on the ground that the complaint made by wife on behalf of her husband without any authorization from her husband. There is nothing to show the petitioner’s husband had been incapacitated in any manner or was prevented in any manner from filing the complaint. Hence, the complainant is not a consumer in this case.
12. The complainant/appellant in the present case came before consumer forum as a user of the tyre as defined in Section 2(1)(d)(i) of the Act. Hence, he is a consumer as defined under the Act.
13. The next contention of the 2nd respondent is that the transaction is purely commercial in nature. In this context, we have to draw a comparison between what is commercial in nature and livelihood. In the present case, the appellant had purchased only one set of tyre and tube for running his bullock-cart. The said purchase of tyre for a single bullock-cart is definitely meant for eking out his livelihood and it cannot be used for any commercial activity. It is purely a transaction for meeting out his daily subsistance and not for any commercial purpose. If the appellant had purchased number of tyres for making any profit out of it, then it becomes commercial in nature. At this instance, we can cite an example that a person who buys a lorry and plies the lorry cannot be considered as commercial in nature as whatever income he gets out of it is purely for his livelihood. In this case, the owner of the lorry can hire a person for plying his lorry, since it may not be practically possible for him to ply the lorry for the whole month. Even then, it is not commercial in nature, but it is purely for his subsistence. Whereas, if he buys a fleet of lorry and makes profit out of it, then it becomes a commercial transaction. In the case on hand , the tyre was used by the appellant solely for the purpose of earning his day-to-day livelihood and does not attract any commercial activity. Hence the transaction does not pertain to any commercial activity, but solely for the livelihood of the appellant. The appellant becomes a consumer as per sec 2(1) (d) (1) of the Act.
14. Another objection of 2nd respondent is that the appellant filed his grievance before Consumer Federation of Tamil Nadu and the same was dismissed, so the complaint before the Consumer Forum is not maintainable under the principles of Res Judicata.
15. The rejection of the appellant's complaint by the Consumer Federation of Tamil Nadu will not amount to Res Judicata as it is not a statutory body constituted under any Act. Hence the complaint is not barred by the principles of Res Judicata. At this juncture, It is worth mentioning that even the arbitration clause is not a bar to the entertainment of the complaint by the Redressal Agency constituted under the Act, even though the arbitration provision has been laid down in a statute, (Ram Nath Vs. Improvement Trust, Bathinda 1994 (1) CPR 257).
16. Another contention of 2nd respondent is that their technical service personnel one Jayaprakash inspected the tyre and found the damage was due to scoring on tread by the tyre spinning on some sharp object and that it was not a manufacturing defect-. Also, Khaja Mohideen, the Technical Service Engineer of 2nd respondent, deposed the same before District Forum.
17. Mr.Khaja Mohideen deposed that………..
“it is true that I have not filed any document to show my technical qualification as a technical service engineer in MRF. Exs.R2 and R3 does not contain any signature. At that time, I was not in-charge, since I joined in December, 2010. The person who has signed in Exs.R2 and R3 is no more working in our office. It is true that Ex.R2 and R3 are dated as January, 2011. I have not seen the impugned tyres in person. Subsequently, I have seen the tyres through dealer. It is true that I have not submitted any document to show that I have never seen the impugned tyre………… It is true that only manual inspection was done for the defective tyre………It is true that neither Ex.C2 and Ex.R2 says that this product is qualified as ISI product. The tyre has been cut from left to right standing vertical. It is true that spinning means rotation. I am not sure about the contents of the report of Ex.R3 stating that damage was due to scoring on tread happened due to tyres spinning over some sharp object. It is true that Ex.R3 does not contain any details on technical qualification of the person authoring Ex.R3 “.
18. The contents of the above deposition clearly shows that Khaja Mohideen had not seen the tyre, only manual inspection was done for the defective tyre, the cut was from left to right standing vertical and he had no knowledge of the inspection report, Ex.R3, dated 06.01.2011, which found that the damage was due to scoring on tread happened due to tyres spinning over some sharp object. Ex.R3 does not contain technical qualification of the person who had given the inspection report. Hence the deposition of Khaja Mohideen 2nd respondent’s technical engineer has no weightage. Also his deposition does not corroborate with the findings of Jayaprakash, another technical person of 2nd respondent. Thus the technical person of 2nd respondent failed to prove that the defect in the tyre was not due to manufacturing defect.
19. The 2nd respondent cannot plainly take a plea that treading on a sharp object, the tyre was damaged which shows nothing but the quality of the product. The tyre is meant to be used in Indian road condition especially in villages and it should withstand such conditions. In Ex C2, the warranty card “Tyres with Muscle” is printed and the appellant’s claim is within the warrany period but 2nd respondent has not complied with what is printed and the assurance given in the form of Warrany. For such mishaps, a poor labourer cannot be subjected to be a victim and to undergo sufferings due to it.
20. The 2nd respondent relied upon the following citation with regard to manufacturing defect:
- 2010(2) CPR 220 (NC)
Classic Automobiles Vs. Lila Nand Mishra & Another
There was no complaint regarding the functioning of the engine of the car, but the check light glowed on the indicator panel. Glowing of check light cannot be termed as a manufacturing defect. The onus to prove manufacturing defect was on the complainant or respondent. The car was functioning and in running condition.
21. In the case on hand the appellant was unable to ply his bullock-cart because of the impugned tyre. The defect in the tyre was apparent and 2nd respondent had admitted that only manual inspection was done for the defective tyre as deposed by Khaja Mohideen in his deposition.
22. On the appellant’s side, the following citations were filed in support of his case:
- 2008 STPL (CL) 871 (NC)
MRF Limited Vs. Sandipan Kishan Rao Deshmukh & Another
In this case, the tyre was found defective within 18 days of warranty period. The petitioner raised the plea that damage of tyre was due to concussion. Affidavit of Sales Executive of petitioner’s company who had examined the tyre was not filed by way of evidence to prove the report. The tyre in question was within the warranty period at the time the damage was caused. Order passed directing replacement of the tyre with costs and interest.
23. In the case on hand, the defect in the tyre happened within three months of its purchase and it is within the warranty period. Hence defect in tyre is proved.
- 1999 STPL (LE) 26404 SC
M.R.F. Ltd. Vs. Jagdish Lal and Another.
The Hon’ble Supreme Court in this case, found that the complainant/respondent was not in possession of the tyre and tube for proper analysis or tests, as prescribed u/s 13(1)(c) of C.P.Act. It was held that on facts, no fault could be found with the Forum or Commission for not following the said procedure.
24. In the present case, the appellant/complainant had produced the tyre and tube to the respondent No.1 for their analysis/test. The deposition of Khaja Mohideen revealed that “only manual inspection was done for the defective tyre”.Thus the appellant had approached the respondents to rectify the defective tyre.
25. From the above discussions and citations submitted by both the learned counsels, we have come to the conclusion that the appellant had used the tyre from the date of its purchase till he noticed the alleged defect in it, the purpose and usage of the tyre was for earning his livelihood and not pertain to any commercial activity and does not attract Res Judicata since Consumer Federation of Tamilnadu is not a statutory body under any Act. Thus, the appellant is very much a consumer as defined under the Act.
26. Defect in goods and unfair trade practice is proved since the 2nd respondent has failed to establish that there is no manufacturing defect in the impugned tyre. The tyre was used by the appellant only for three months and within the warranty period the defect was noticed.
27. The Hon’ble Supreme Court reiterated that expert opinion for declaring manufacturing defect in vehicle is not necessary. The criteria of declaring manufacturing defect no more rests only on expert opinion, but circumstances and facts of the case also play its role in reaching to the final result.
28. Thus, the appellant being a labourer who earns his livelihood by plying the bullock-cart, had spent Rs.4,800/- towards the cost of tyre and Rs.435/- for the tube (total Rs.5,235). Since it is proved that the tyre sold by the respondent is defective and unfair trade practice is proved, we hold that the appellant would have definitely suffered loss of income. However, we are inclined to assess the same as Rs.20,000/-. Thus, the appellant is entitled to a sum of Rs. 20,000/- (Rupees Twenty-Thousand only) towards loss of income.
29. The 1st respondent, being the dealer of 2nd respondent, was set exparte by District Forum is exempted from any liability. The defect in goods and unfair trade practice are proved on the part of 2nd respondent.
30. We find infirmity in the order of the District Forum, Puducherry and the same is hereby set aside.
31. In the result, the appeal stands allowed.
The 2nd respondent is directed to pay within 30 days from today the following amount:
i) Rs.5,235/- (Rupees Five-Thousand Two-Hundred and Thirty-Five only) towards cost of the tyre and tube with interest at 9% p.a. from the date of alleged defect, i.e. on 03.12.2010
ii) Rs.20,000/- (Rupees Twenty-Thousand only) towards loss of income.
iii) Rs.10,000/- (Rupees Ten-Thousand only) towards compensation for mental agony and physical hardship suffered by the appellant/complainant; and
iv) Rs.5,000/- (Rupees Five-Thousand only) towards costs of the proceedings.
Dated this the 2nd day of July, 2015
(Justice K.VENKATARAMAN)
PRESIDENT
(K.K.RITHA)
MEMBER
