Jammu and Kashmir

Jammu

CC/661/2017

ANITA DOGRA - Complainant(s)

Versus

JAY KAY AUTO - Opp.Party(s)

RAHUL SHARMA

21 Jul 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No                222/DFJ           

 Date of  Institution       08-09-2015

 Date of Decision      :     01-06-2018

 

1.Sh.Sanjay Dogra,

S/O Sh.Ram Dass Dogra,    (Dead)

R/O 65/6 Channi Himmat,Jammu.

2.Anita Dogra,

W/O Sh.Sanjay Dogra,

3.Chahak Dogra(Minor)

D/O Sh.Sanjay Dogra.

                                                                                                                                                                Complainants

              V/S

1.M/S Jay Kay Auto Traders

Zero Mile Stone,Narwal Chowk,

Jammu.48-B Aquaf Complex,

Gandhi Nagar,Jammu.

2.M.S Goodyear India Ltd.

Ist Floor ABW Elegance Tower,

Jasola New Delhi-110025.

                                                                                                                                                                Opposite parties

CORAM

                  Khalil Choudhary              (Distt.& Sessions Judge)  President

                  Ms.Vijay Angral                                                               Member

                  Mr.Ghulam Sarwar Chauhan                                        Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

    Mr.Rahul Sharma,Advocate for complainant, present.

   Nemo for OP1.

Mr.Aseem Sawhney,Advocate for Op2,present.

 

 

                                                ORDER.

                     Facts relevant for the disposal of complaint on hand are that; complainant said to have purchased two tyres,make of  Goodyear manufactured by OP2 from OP1 for his matador Bearing No.JK02AS-2355,on,07-03-2015 for sum of Rs.14,800/-.Allegation of complainant is that the said tyres were either duplicate or have inherent manufacturing defect, as such the same became unpliable even within a period of three months, which fact was brought to the notice of OP1 by the wife of complainant on,01-06-2015,as the ,complainant was suffering from heart ailment and had undergone major heart surgery at PGI Chadigarh,but OP1 avoided to replace the tyres or give satisfactory reply and asked to approach OP2 and this act of OPs made the complainant to suffer mentally and financially who was already under acute stress and had undergone major surgery at PGI Chandigarh. Complainant further submitted that the matador was being plied to earn his livelihood which was the only source of income and the matador was being plied under self employment scheme, but because of fraud committed by OP1 by supplying defective tyres having manufacturing defect complainant suffered mentally and financially. Constrained by the act of Ops,complainant served legal notice to OPs,but despite of receipt of notice Ops did not respond to the notice and this act of Ops constitutes deficiency in service and unfair trade practice, hence the present complaint. In the final analysis, complainant prays for refund of Rs.14,800/-i.e. total cost of tyres and in addition prays for sum of Rs.75,000/-under different heads.

              On the other hand,OP1 despite service of notice did not choose to represent its case in this Forum, either to admit the claim of complainant or to deny the same within stipulated period provided under the Act, so the right of OP1 to file written version stands closed vide order dated 31-10-2015

                         On the other hand OP2 filed written version and resisted the complaint on the ground that complainant has not produced any evidence/expert report to bear testimony to its incorrect fact that the tyres in question are indeed suffering from manufacturing defect and thus is liable to be dismissed. It is submitted that a tyre is a rubber product which can be damaged at any point of time. It is a well settled principle that the life of a tyre depends upon many factors such as terrain, driving habits, the skill of the driver of the vehicle, the kind and quality of the roads on which they are driven,tyre inflation/pressure, load speed operation etc.Not taking proper care of the vehicle and tyres and not exercising due diligence while driving the vehicle will not provide the tyre the expected life. In the case at hand, the alleged defect in the tyre in question developed is an outcome of various factors like vehicle related deficiencies such as wheel misalignment,misapplication,improper tyre rotation practices, improper inflation pressure etc.which in no manner can be construed to be a manufacturing defect. As such, the complainant’s claim was rightly rejected by the Tyre Expert not being covered under the Warranty Policy of OP2.

                                    Complainant adduced evidence by way of duly sworn his own affidavit and affidavit of Mrs.Anita Dogra. Complainant has placed on record copy of retail invoice dated, 07-03-2015,retail vat invoice dated 06-07-2015 and copy of legal notice.

       On the other hand,OP2 adduced evidence by way of duly sworn evidence affidavit of Dinesh Kumar,Tyre Expert

               It is pertinent to mention here that during pendency of this complaint, the complainant Sh.Sanjay Dogra expired and an application was filed by Smt.Anita Dogra wife of deceased complainant which was allowed by this Forum vide order dated 07-09-2016 and she was impleaded as the complainant.

                       We have perused case file and heard L/C appearing for the complainant at length.

                     Briefly stated case of complainant is that  her husband had purchased two tyres,make of  Goodyear manufactured by OP2 from OP1 for his matador Bearing No.JK02AS-2355,on,07-03-2015 for sum of Rs.14,800/-but the said tyres were either duplicate or have inherent manufacturing defect, as such the same became unpliable even within a period of three months, which fact was brought to the notice of OP1 by her on,01-06-2015,as the ,her husband was suffering from heart ailment and had undergone major heart surgery at PGI Chadigarh,but OP1 avoided to replace the tyres or give satisfactory reply and asked to approach OP2 and this act of OPs made her husband to suffer mentally and financially who was already under acute stress and had undergone major surgery at PGI Chandigarh. Complainant further submitted that the matador was being plied to earn his livelihood which was the only source of income and the matador was being plied under self-employment scheme, but because of fraud committed by OP1 by supplying defective tyres having manufacturing defect complainant suffered mentally and financially. Constrained by the act of Ops,complainant served legal notice to OPs,but despite of receipt of notice Ops did not respond to the notice and this act of Ops constitutes deficiency in service and unfair trade practice.

                       On the other hand,defence of OP2 is that complainant has not produced any evidence/expert report to bear testimony to its incorrect fact that the tyres in question are indeed suffering from manufacturing defect and thus is liable to be dismissed. It is submitted that a tyre is a rubber product which can be damaged at any point of time. It is a well settled principle that the life of a tyre depends upon many factors such as terrain, driving habits, the skill of the driver of the vehicle, the kind and quality of the roads on which they are driven,tyre inflation/pressure, load speed operation etc.Not taking proper care of the vehicle and tyres and not exercising due diligence while driving the vehicle will not provide the tyre the expected life. In the case at hand, the alleged defect in the tyre in question developed is an outcome of various factors like vehicle related deficiencies such as wheel misalignment,misapplication,improper tyre rotation practices, improper inflation pressure etc.which in no manner can be construed to be a manufacturing defect.

                                 Before heading further, it is to be noted that since parties have lead evidence in the shape of evidence affidavits, which are much or less reproduction of contents of their respective pleadings,therefore,we do not feel it necessary to represent the same again and if need arises, same would be referred hereinafter at appropriate stage.

                    The complainant in her own affidavit has supported the averments of the complaint. There is no evidence on record produced by OP)1 to rebut the case of complainant. So from perusal of complaint, documentary and other evidence produced by the complainant, it appears that the complainant has succeeded in proving her case as narrated by her in the complaint. The complaint is fully supported by the affidavit of complainant, so, in the given circumstances of the case, and in view of the evidence on record, there is no reason to disbelieve the averments of complainant in complaint. This is a case of deficiency in service. The OP1 despite service of notice, sent by the Forum through registered cover has not taken any action to represent the case before this Forum, either to admit the claim of complainant, or to deny it, so there is no reply filed by the OP1 in this complaint and there is also no evidence in rebuttal. The present case of the complainant is covered by Section 11 2(b) (ii) of the Consumer Protection Act, 1987, which provides that in a case, where the OP1 omits or fails to take any action to represent its case within the time given by Forum, in that situation, the Forum shall settle the consumer dispute on the basis of evidence brought to its notice by the complainant. Sub-clause (ii) of the Section 11, clearly provides that even where the OP1 omits or fails to taken any action to represent the case before the Forum, the dispute has still to be decided on the basis of evidence brought to its notice by the complainant.

                  In addition complainant has also supported the averments contained in the complaint by duly sworn her own affidavit which are corroborative of the facts contained in the complaint. From perusal of averments contained in the complaint, affidavit of complainant and documents placed on record. Therefore, in the light of unrebutted averments contained in the complaint and documents on record, we are of the opinion that complainant successfully made out a case of deficiency in service by OP1.

                    After going through the whole case with the evidence on record what reveals here is the case of complainant is genuinely filed with speaking reasons and merit as being consumer as per the purport of section 2(d) of Consumer Protection Act and Ops are the service providers having failed in their statutory duty to provide adequate and effective services. The purport of legislation is well defined and statutorily takes care of consumer rights and cannot legally afford to a situation like the one confronted herewith in a manner where they are deprived of their rights as of consumer. The consumers have to come forth and seek for redressal of his grievance. The case of the complainant is also genuinely filed for seeking determination of his right by this Forum.

                        Therefore, in view of aforesaid discussion, the complaint filed by the complainant for redressal of her grievance is allowed and OP1 is directed to refund Rs.14,800/-(i.e.the cost of tyres) to the complainant.OP1 is also directed to pay compensation of Rs.10,000/-for causing unnecessary harassment and mental agony and litigation charges of Rs.5,000/-,respectively. The OP1 shall comply the order, within one month, from the date of receipt of this order. Copy of this order be provided to both the parties, as per requirement of the Act. The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                                    Khalil Choudhary

                                                                                     (Distt.& Sessions Judge)

                                                                                            President

Announced                                                           District Consumer Forum

    01-06-2018                                                                       Jammu.

 

Agreed by                                                               

                                                                            

Ms.Vijay Angral                                              

 Member    

 

Mr.Ghulam Sarwar Chauhan

Member