DOF.10.11.10

DOO.27.09.11

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.M.D.Jessy:               Member

Dated this, the  27^th day of September   2011

C.C.No.263 /2010

P.Rejinold,

House No.168 B,

Burnassweri,

Kannur Contonment                                   Complainant

1.Jayanthi Tyres,

   New Tyre Dealers Distributors,

   KWIK PATGH,

   T.T.Road,

   Kannur 2.

  (Rep. by Adv.C.K.Rathnakaran)

2.Falcon Tyres Ltd.,

   D.44/2316(1)Pavan House,

   Friends Lane No.4

   Deshabhimani Road, Kaloor,

   Cochi 17                                                   Opposite parties

          O R D E R

Smt.M.D.Jessy, Member

          This is a complaint filed under section12 of the consumer protection Act for getting the refund of `1500 being the value of a damaged tyre purchased from the shop of opposite party together with a compensation of `95,000.

The brief facts of the complainant’s case is that on 16.4.2010 he purchased one tyre for his goods vehicle bearing No.KL.13.R.2104 from the shop of 1^st opposite party by paying an amount of `1550. But the tyre was burst while use with in six months. The complainant alleges that it was caused due to manufacturing defect and hence complainant returned damaged tyre before 1st opposite party and requested to replace with a new one. The opposite party even though agreed to give a new tyre on payment of half the price the complainant did not accept the offer. Complainant alleges that there is deficiency of service on the part of opposite party denying the replacement of the damaged tyre with a new one unconditionally. Thus complainant suffered great hardship and hence complainant claims a reasonable settlement of the problem along with a compensation of `95,000 towards mental agony and hardship.

On receipt of the complaint notice were sent to the opposite party. Opposite party appeared and filed his version admitting the purchase of tyre by the complainant on 16.4.2010 from the opposite party but they denied further allegations of the complainant. 1^st opposite party further alleges that they are only dealer and if there is any manufacturing defect it is to be rectified by its manufacturer hence 1^st  opposite party pleaded to implead the manufacturer of the tyre purchased by the complainant. Their address is also supplied by the 1^st opposite party hence the complainant filed petition to implead the manufacture of the tyre as 2^nd opposite party. Even though notice was issued to 2^nd opposite party intimating the complaint 2^nd opposite party not appeared and hence 2^nd opposite party was set exparte. . But 2^nd opposite party sent a letter to the Forum as well as to the complainant agreed to replace the damaged tyre on free of cost.                 On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite

     Party in replacing the damaged tyre to the complainant?

2. Whether the complainant is entitled for the remedy as

    prayed in the complaint?

3.  Relief and cost.

The evidence consists of the oral testimony of complainant as PW1 and Exts. A1 to A5 marked on the side of the complainant. On the side of opposite party DW1 was examined. No documents on the side of opposite party.

Issue No.1

Ext.A1 goes to show that complainant purchased one tyre from the shop of 1^st opposite party on 16.4.2010 by paying an amount of 1550. Complainant used the tyre in his goods vehicle for about 6 months. Complainant alleges that the said tyre was burst due to some manufacturing defect and he approached 1^st opposite party demanding replacement of the damaged tyre with a new one. 1st opposite party agreed to deliver a new tyre to the complainant but for that he demanded the complainant to pay half of its value. As per the evidence of 1^st opposite party they are only t he dealer of the tyre and 2^nd opposite party is its manufacturer. If the tyre is damaged due to manufacturing defect as per warranty condition 2^nd opposite party is liable to replace the same. Since 1^st opposite party refused to give a new tyre instead of the damaged one, complainant alleges that there is deficiency of service on the part of opposite party. Here it is pertinent to note that complainant had used the subject tyre for more than 6 months. The date on which the tyre was broken is not revealed any where by the complainant. The subject tyre being sued in a goods carriage vehicle for more than 6 months. It is clear that half life of the tyre is already over. The damaged tyre is not produced by the complainant for inspection by a technical person who is capable to say whether the damage caused to the tyre is due to any manufacturing defect. The wear and tear caused to the tyre is also taken into account for assessing the nature of damage. Complainant himself admitted during cross examination that “SbÀ s]m«n-t¸mbn F¶p ImWn-¡m³ Fsâ samgn-b-ÃsX sXfn-shm-¶p-anÔ. Mere oral evidence is not sufficient to prove that the tyre was burst due to any manufacturing defect. But through Ext.A5 dated 21.3.11 a reply statement issued by 2nd opposite party directly to the forum and also to complainant agreed to replace the subject tyre free of cost to the complainant. As such we are inclined to grant a relief to the complainant directly the opposite parties to deliver a new tyre of the same denomination as noted n Ext.A1 bill to the complainant.

Issue No.2 & 3

Even though it is alleged by the complainant in his chief affidavit that due to the non replacement of the damaged tyre he could not ply his vehicle there after. It is not a believable one. The bills produced by the complainant will go to show that he is having sufficient cash for purchasing a new tyre instead of the damaged one. Complainant also got benefit by using the tyre for more than six months. After using the tyre for such a considerably long period in a goods carriage vehicle, there will be some hesitation on the part of the dealer   as soon as the damage is reported to him. Merely because the tyre was not replaced by the dealer at the first instance it cannot say that there is deficiency of service on the part of opposite party. No notice is also seen issued by the complainant to 1^st opposite party intimating the damage sustained to his tyre. If such a notice is issued the said demand can be made to the manufacturer also and the matter can be settled then and there. Considering the nature of the case complainant is not entitled to get any damages as alleged in the complaint.

          In the result, complaint is allowed partly directing the opposite parties to deliver a new tyre of the same denomination as noted in Ext.A1 cash bill within one month of receipt of this order, failing which the complainant is entitled to realize  `1550 (Rupees One Thousand  Five hundred and fifty only),  as the price of the tyre from the  opposite parties .Complainant is entitled to execute the  order after the expiry of 30 days as per the provisions of consumer protection Act.

                             Sd/-                         Sd/-

                      President                      Member  

                                    APPENDIX

Exhibits for the complainant

A1. Cash bill issued by OP 

A2.Receipts/acknowledgement issued by  Cholamandalam DBS

A3.Rent receipt dt.19.1.11 issued by Tamitom Ramlath

A4.Receipt issued by National Insurance Co.

A5.Copy of the letter dt.21.3.11 issued by OP

Exhibits for the opposite parties: Nil

Witness examined for the complainant

PW1.Complainant.

Witness examined for opposite party:

DW1.Vikas.P.K.

/forwarded by order/

                                                                    Senior Superintendent