SMT.MOLYKUTTY MATHEW : MEMBER

        This is a complaint filed by the complainant U/S 12 of the Consumer Protection Act 1986  for an order directing  the OP’s to pay Rs.36,500/- with 12% interest   along with  compensation  & cost  to the complainant for the deficiency of service on  the  part of opposite parties.

The brief of the complaint :

 The  complainant approached the 1^st OP and informed his desire to purchasing a JCB.  The 1^st OP squirrely represented that they are the dealers of JCB having good performance in all respect believing the representation of  OP the complainant agreed to purchase a JCB from the OP.  The OP also agreed that  all parts of the JCB  is having warranty.  Then  the complainant purchased the JCB from  1^st OP on 14/3/2016 for an amount of Rs.25,88,654/-.  He paid the amount as per invoice No. 316 dtd.14/3/2016.  The JCB was delivered at the place of residence of the complainant at Nediyenga.  The complainant arranged huge amount of bank loan for the  purchase of JCB and the same was registered on 31/3/2016 bearing Reg.No. KL 59 M 7534.  The warranty certificate issued by 2^nd OP for a period of 12 months from the date of sale.  But on 15/8/2016 the tyre of the JCB shows the bulging phenomena and the complainant approached 1^st OP for replacing the tyre   which is having manufacturing defects.  The defect was caused in the warranty period also.  But the OP’s are not ready to replace the tyre.  Then the complainant constrained to purchase new tyre from P.P.Tyres at Chiravakku,Taliparamba on 21/9/2016 for an amount of  Rs. 31500/-.  The act of  OP’s the complainant caused much mental agony and  financial loss.  The complainant assessed the legitimate compensation for mental agony , strain and tension, of Rs.5000/- from the OP’s. So there is  deficiency of service and unfair trade practice on the part of OP’s.  Hence the complaint.

       After filing the complaint notice issued to 1^st OP.1^stOP appeared before the commission  and filed his written version  contending that 1^st OP is only a dealer of the vehicle and the terms and conditions  with respect to the warranty is mentioned in owners’ manual which is supplied to the  complainant at the time of delivery of the vehicle  by the manufacturer.  1^st OP is never contract  with the complainant and the rubber items  no warranty is given.  1^st OP also submits that the manufacturer of the JCB, JCB Limited India and  the manufacturer of tyre CEAT Limited  may also be  impleaded as necessary parties in this case.  Moreover, the complainant is liable to submit strict proof  whether the alleged defects are formed on account of manufacturing defect or mishandling or over usage.  Moreover, the complainant has not taken any expert opinion by sending the alleged tyre to an approved laboratory. So  there is no deficiency in service  and unfair trade practice against  1^st OP and  the complaint may be dismissed .

    Thereafter the complainant filed an amendment and impleading petition before the commission  on 30/1/2020 in IA No. 24/2020.  No counter filed by 1^st OP and the petition allowed.  After receiving notice 2^nd OP, the manufacturer of the JCB appeared before the commission and filed his written version contending that the complainant purchased the vehicle for commercial purpose and not come under the purview of  consumer.  The Ceat tyre remarks- these tyre is not coming under manufacturing defect, so the 2^nd OP is not take  under warranty.  Moreover there is no expert opinion  to show that the tyre  in question the fault  arose due to some manufacturing defect.  The alleged defect cannot be  termed as manufacturing defect and any claim  or  obligation in connection with the  sale and  service of manufacturers product shall be  subject to the  jurisdiction of  courts in Faridabad only. So there is no  deficiency of service and unfair trade practice against the 2^nd OP and  the complaint may be dismissed.

       On the basis  of the rival contentions by the pleadings the  following  issues  were framed for consideration.

1. Whether there is  any deficiency of service   on the part of the opposite parties?
2. Whether the complainant is entitled for any relief?
3. Relief and cost.

     The evidence consists of the oral testimony of PW1 and Exts. A1 to A3 were marked. On OP’s side DW1 was examined and Exts.B1 to B3(series) were  marked.  DW1 was not cross examined by complainant also.

Issue No.1to 3 taken together: 

                The  complainant  adduced evidence before the commission by submitting  his chief affidavit in lieu of  his chief examination to the tune of the pleadings in the complaint and denying the  contentions in the version.  He was cross examined as PW1 by the OP’s.  He relied upon the documents  Exts.A1 to A3 to substantiate his case.  In the evidence of PW1, he  stated that CEAT Tyre  ന്ർറെ expert  പരിശോധിച്ച് ടയറിന് നിർമ്മാണ തകരാർ ഇല്ലാത്തതുകൊണ്ട് വാറണ്ടി കിട്ടില്ല എന്ന് OP’s പറഞ്ഞതായി മനസ്സിലാക്കിയിട്ടുണ്ടോ? ഉണ്ട്.  ടയറിന്ർറെ നിർമ്മാതാവായ CEAT Tyres നെ കക്ഷി ചേർക്കാതിരിക്കാൻ പ്രത്യേകിച്ച് കാരണം ഒന്നും ഇല്ല? ശരിയാണ്. Tyre ന് defects ഉണ്ട് എന്ന് കാണിക്കുന്നതിന് നിങ്ങൾ  ഒരു expert നെ വച്ചിട്ടില്ല എന്ന് പറയുന്നു? Expert വന്ന് Tyre പരിശോധിച്ചിരുന്നു. But no expert report produced by the complainant before the commission.  PW1 clearly stated that there is no manufacturing defect in the tyre already inspected by the Ceat tyre expert.  In order to prove the case of 2^nd OP, he filed chief affidavit before the commission and examined as DW1.  Exts B1 to B3(series) marked on his part.  The complainant was not present before the commission and not cross examined the DW1.  So the proof  affidavit of DW1 stands admitted.  In Ext.B1 is the warranty  policy, Ext.B2 is the  e-mail communications(rejection) and  Ext.B3(series)  is the photos( 5 in Nos.) of the Tyre.  In Ext.B3  series it clearly contains the tyre is manufactured by M/s  CEAT India Limited.  But the  complainant  not take any steps to implead the actual manufacturer of the Ceat tyres.  Moreover, the Ext.B3(series) photos to show  that the crack occurred  in the tyres which make it clear that the same was caused not due to any manufacturing defect.

   The Hon’ble Supreme Court in the decision  2006(4)SCC 644 Maruti Udyog Ltd vs. Susheel Kumar Gabgothra regarding the  warranty is that the conditions of warranty is to be followed when there is express conditions of warranty.  The warranty of the tyre is provided by the tyre manufacturer M/s Ceat Tyres.  That is admitted by PW1 also..  So there is no deficiency  of service and unfair trade practice on the part of OP’s.  So the issue No.1 found in favour of the OP’s and answered accordingly.

      As discussed above the aforesaid deficiency of service and unfair trade practice on the part of OP’s are not  proved by the complainant.  So the  complainant is miserably failed to prove his case.  Thus the issue Nos.2&3 are also found against the complainant.

    Hence the complaint is dismissed on the ground that the complainant is not proved the deficiency  of service and unfair trade practice against the OP’s.  So the compensation and cost not allowed.

  In the result the complaint is dismissed. No order as to cost.

Exts:

 A1- Invoice receipt dtd.14/3/2016

A2-Warranty certificate

A3-Estimate dtd.21/9/2016(subject to proof)

B1- Warranty policy

B2- E-mail communications

B3(series) –Photos(5 in Nos)

PW1-Manu.C.J- complainant

DW1- Adarsh.R.S-1^st OP

Sd/                                                         Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR