KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.936/04 JUDGMENT DATED 29.3.2010 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.M.K.ABDULLA SONA -- MEMBER The Manager CC.No.46/259,960 & 961 -- APPELLANT Chittur Road, Vaduthala, Cochin. (By Adv.Nair Ajay Krishnan) Vs. 1. K.Sudevan Nirmalayam House, Vellancy, Nenmmara, Chittur,Palakkad. 2. The Hill Gover Tyres -- RESPONDENTS Railway Station Road, Palakkad. (By Adv.O.Shiny) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER Appellant was the first opposite party and respondents 1 and 2 were the complainant and second opposite party in OP.No.2/03 on the file of CDRF, Palakkad. The complaint in OP.2/03 was filed alleging deficiency in service and unfair trade practice on the part of the opposite parties 1 and 2 with respect to the sale of a defective tyre to the complainant. The complainant alleged manufacturing defect in the said tyre with Serial No.57103622729 which was purchased by the complainant from the second opposite party/dealer. The first opposite party is the manufacturer of the said tyre. Thereby, the complainant prayed for replacement of the defective tyre by a new tyre and also for compensation for the inconvenience and mental agony suffered by the complainant. 2. The first opposite party (the manufacturer of the tyre) filed written version denying and disputing the alleged unfair trade practice and deficiency in service. It was contended that the complainant is not a consumer coming under the purview of the Consumer Protection Act and so complaint is liable to be dismissed as not maintainable. It was further contended that there was no manufacturing defect in the said disputed tyre and the damage to the tyre occurred due to the neglected use of the same by the complainant. The first opposite party/manufacturer had also requested the Forum below to subject the said tyre for expert examination. Thus, the opposite party prayed for dismissal of the complaint in OP.2/03. 3. The second opposite party, the dealer of the said tyre remained absent. 4. Before the Forum below, the complainant and the first opposite party filed proof affidavit in support of their case. Both parties adduced documentary evidence. On an appreciation of the evidence on record, the forum below passed the impugned order dated 31st August 2004 directing the opposite parties 1 and 2 to replace the defective tyre by a new one or to pay Rs.7650/- to the complainant towards the price of the tyre within a period of one month from the date of communication of the order. The opposite parties 1 and 2 were made jointly and severely liable to replace the defective tyre or to pay Rs.7650/- to the complainant. There is also a default clause to pay interest at the rate of 9% per annum in the event of failure to comply with the said order. Aggrieved by the said order, the present appeal is preferred by the first opposite party therein. 5. When this appeal was taken up for final hearing, there was no representation for the respondents. We heard the learned counsel for the appellant/first opposite party. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He pointed out the failure on the part of the complainant to prove the alleged manufacturing defect in the disputed tyre. The appellant has also challenged the impugned order passed by the forum below on the ground that the forum below has not considered the provisions of Section 13 (1) ( c) of the Consumer Protection Act, 1986. Thus, the appellant prayed for setting aside the impugned order passed by the forum below. 6. The points that arise for consideration are:- 1. Whether the first respondent/complainant can be considered as a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986? 2. Whether the first respondent/complainant has succeeded in establishing his case that there was manufacturing defect in the tyre bearing Serial No.57103622729 which was purchased from the opposite parties 1 and 2 in OP.2/03 on the file of CDRF, Palakkad? 3. Is there any legally sustainable ground to interfere with the impugned order dated 31.8.04 passed by CDRF, Palakkad in OP.2/03? 7. POINTS 1 TO 3:- There is no dispute that the first respondent/complainant purchased the disputed tyre bearing Serial No.57103622729 from the second opposite party, the Hill Gover Tyres, the dealer of the MRF tyres. Admittedly, the appellant/first opposite party MRF Ltd is the manufacturer of the said tyre which was purchased by the complainant from the second opposite party on 23.3.02. The said tyre was purchased by the complainant for his vehicle bearing Registration No.KL 9/1719. The complainant admitted the fact that he purchased the said tyre for plying his Bus in connection with his transport business. There can be no doubt that the tyre was purchased for commercial purpose. It is to be noted that the said tyre was purchased on 23.3.02 and the complainant submitted the defective tyre to the second opposite party/dealer on 24.4.02. The alleged manufacturing defect in the said tyre developed within one month of its purchase. It is not disputed by the opposite parties that the said tyre is having warranty. Naturally, there will be a minimum warranty period for the said tyre. The warranty will be more than one month. So, in this case, the alleged manufacturing defect in the tyre developed during the warranty period. It is held by the Hon. Supreme Court and the National Commission in many decisions that warranty service is also service coming under the definition service as defined in Section 2 (1) ( O) of the Consumer Protection Act, 1986. It is to be noted that prior to the amendment Act 62/02 the service availed for commercial purpose and the person who availed such service for commercial purpose was considered as a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. The aforesaid amended Act 62/02 came into force on 15.3.03. Prior to the said amendment a person who availed the service for commercial purpose was considered as a consumer. In the present case on hand, the transaction was on 23.3.02 and the alleged manufacturing defect was developed and reported on 24.4.02. There can be no doubt that at the relevant time, the service availed for commercial purpose was brought under the provisions of Consumer Protection Act, 1986. So, the complaint preferred by the complainant alleging manufacturing defect in the tyre can be considered as a consumer dispute and the complainant can be considered as a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. Hence the complaint in OP.2/03 is maintainable in law. 8. The first respondent/complainant alleged manufacturing defect in the disputed tyre which was purchased from the second opposite party on 23.3.02. There is no dispute that on 24.4.02, the complainant submitted a complaint to the second opposite party/dealer regarding the manufacturing defect. It was forwarded to the first opposite party, the manufacturer of the said tyre. The first opposite party manufacturer denied the alleged manufacturing defect. The definite case of the first opposite party was that the crack on the disputed tyre developed due to the neglected use of the tyre by the complainant. It was also contended that there was no proper inflation and due to that improper inflation crack developed on the said tyre. The first opposite party manufacturer was definite on its stand that the groove cracks developed due to the neglected use of the tyre by the complainant. Then it was incumbent upon the complainant who alleged manufacturing defect to prove that the crack developed due to manufacturing defect. But, the complainant has not adduced any evidence to prove his case regarding manufacturing defect. It is pertinent to note that the first opposite party requested the Forum below to forward the tyre to get an expert report as provided under section 13 (1) ( c) of the Consumer Protection Act, 1986. It is a well settled position that it is for the person who alleges manufacturing defect to prove that fact regarding manufacturing defect. It is also the settled position that the alleged manufacturing defect in the goods is to be tested in a laboratory as provided under Section 13 (1) ( c) of the Consumer Protection Act, 1986. But in this case no such procedure was adopted by the Forum below to detect the alleged defect in the goods (tyre) purchased by the complainant from the opposite parties. Thus, in effect the complainant failed to substantiate his case regarding manufacturing defect in the disputed tyre bearing No.57103622729. If that be so, the forum below has gone wrong in coming to the conclusion that the disputed tyre was having manufacturing defect. 9. The Forum below much relied on the report submitted by the technical experts of the first opposite party manufacturer of the said tyre. It is true that one expert has reported that the tyre was under inflated and another expert has stated that the tyre was over inflated. But both the experts of the first opposite party have categorically reported that the cracks on the grooves of the tyre developed due to neglected use of tyre and that the groove cracks developed due to improper inflation of the tyre. Thus, it can be seen that both the experts of the first opposite party manufacturer have categorically reported that there was no manufacturing defect in the tyre and the cracks developed only due to neglected use of the said tyre. The mere fact that one expert has stated that it was due to under inflation and another expert has reported that it was due to over inflation cannot be taken as a ground to hold that there was manufacturing defect. On the other hand, both the experts of the first opposite party have categorically reported that there was no manufacturing defect in the said tyre. So, the materials available would show that there was no manufacturing defect in the tyre. If that be so, the forum below cannot be justified in coming to the conclusion that there was manufacturing defect in the disputed tyre. 10. The first opposite party has got a case that they offered a new tyre to the complainant on condition of payment Rs.4370 + tax for the new tyre. It is also the case of the first opposite party that the aforesaid offer was made as a gesture of goodwill. It is also contended by the first opposite party that the complainant used the tyre for some time and 77% of the life of the tyre has been enjoyed by the complainant. The case of the complainant that he used the tyre for some days on the advise of the second opposite party cannot be believed or accepted. There is no reliable evidence on record to show that the complainant used the defective tyre only from 23.3.02 to 24.4.02 on the advice of the second opposite party. No document is forthcoming from the side of the complainant to prove that fact. At any rate, the appellant/first opposite party, the manufacturer never agreed for use of the tyre for few days. So, the forum below cannot be justified in holding that there was manufacturing defect in the tyre and that the opposite parties 1 and 2 are joint and severely liable to replace the defective tyre by a new one or to pay Rs.7650/- to the complainant. We have no hesitation to set aside the impugned order passed by the forum below. Hence we do so. These points are answered accordingly. In the result, the appeal is allowed. The impugned order 31.8.04 passed by CDRF, Palakkad in OP.2/03 is set aside. The complaint in OP.2/03 is dismissed. The parties are directed to suffer their respective costs through out. M.V.VISWANATHAN -- JUDICIAL MEMBER M.K.ABDULLA SONA -- MEMBER | 
