KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.253/2021 & APPEAL No.326/2021

JUDGEMENT DATED: 04.08.2022

PRESENT:

A 253/2021

APPELLANTS:

(by Advs. Nair Ajay Krishnan & Narayan R.)

Vs.

RESPONDENTS:

(by Advs. B.A. Krishnakumar)

A 326/2021

APPELLANT:

(by Adv. Sreevaraham N.G. Mahesh)

Vs.

RESPONDENTS:

JUDGEMENT

SRI. T.S.P. MOOSATH : JUDICIAL MEMBER

          A 326/2021 has been filed by the 1^st opposite party and A 253/2021 has been filed by the 2^nd opposite party in C.C.No.245/2016 of the Consumer Disputes Redressal Forum, Kasaragod (in short the District Forum), against the order of the District Forum dated 30.07.2021.  The District Forum directed the 2^nd opposite party to supply two brand new tyres of the same brand for the BREZZA car of the complainant, free of cost or its value, Rs.13,000/- (Rupees Thirteen Thousand) to the complainant.  Both opposite parties were jointly and severally directed to pay Rs.10,000/- (Rupees Ten Thousand) as compensation and Rs.3,000/- (Rupees Three Thousand) as costs of the litigation to the complainant.

          2.       The averments contained in the complaint in brief, are as follows:  On 19.02.2016 the complainant purchased a brand new Maruti BREZZA car from the 1^st opposite party for his personal use.  The vehicle was purchased in the name of his son, Mohammed Riyaz.  While using the car, the complainant noticed that both tyres on the left side of the car were damaged.  On furnishing the information to the 1^st opposite party, they assured replacement of the tyres.  The 1^st opposite party removed the tyres and took it to their showroom.  But the 1^st opposite party did not replace the tyres.   Complainant purchased two new tyres by paying Rs.13,000/- (Rupees Thirteen Thousand).  There is manufacturing defect to the tyres.  The 2^nd opposite party is the manufacturer of the tyres.  There is deficiency in service on the part of the opposite parties.  The complainant sought replacement of the tyres by the opposite parties or to pay the cost of the same with interest and to pay compensation of Rs.10,000/- (Rupees Ten Thousand) and costs of litigation. 

          3.       The 1^st opposite party filed version raising the following contentions:  The purchase of the car by the complainant from the 1^st opposite party is admitted.  On getting information from the complainant the 1^st opposite party had taken the tyres and sent it to 2^nd opposite party, being the manufacturer of the tyres.  On inspection by the technical service person of the 2^nd opposite party it was found that the tyres got damaged due to external damages/scoring due to sudden impact with sharp object and not due to any manufacturing defect.  There is no deficiency in service on the part of the 1^st opposite party.

          4.       The 2^nd opposite party filed version raising the following contentions:  There is no deficiency in service on the part of the 2^nd opposite party.  There was no manufacturing defect with the tyres.  On inspection it was found that the tyres got damaged due to sudden impact with sharp object and the said damage is not covered by warranty.  Complainant is not entitled to get any relief against the 2^nd opposite party.

          5.       The complainant was examined as PW1 and Exhibits A1 to A5 were marked on his side.  On the side of the opposite parties DW1 and DW2 were examined and Exhibits B1 to B3 were marked.

          6.       After considering evidence adduced by the opposite parties and after hearing both sides the District Forum has passed the impugned order.  Aggrieved by the order passed by the District Forum the opposite parties 1 and 2 have filed separate appeals.

          7.       Heard both sides.  Perused the records.

          The parties are referred according to their status/rank in the complaint.

          8.       It is contended by the appellants that the complainant has no locus standi to file the complaint since he is not the purchaser of the car.  In the complaint it is stated by the complainant that he had purchased the car in the name of his son and the car was purchased for his personal use.  His son is working abroad.  Those statements are not denied by the opposite parties.  Exhibit A5 is the letter issued by Mohammed Riyaz, the son of the complainant, authorizing him to conduct the present case on his behalf and to do all necessary acts in connection with the case, including compromise.  So there is no basis for the contentions of the appellants that the complainant has no locus standi to file the complaint.

          9.       There is no dispute to the fact that the car was purchased by the complainant from the 1^st opposite party on 19.05.2016.  It is the case of the complainant that while in use he noticed that both tyres on the left side of the car were damaged.  On furnishing information the 1^st opposite party removed the tyres and took them, promising that they would replace the tyres.  But they did not replace the tyres.  So the complainant purchased two new tyres for Rs.13,000/- (Rupees Thirteen Thousand), evidenced by Exhibit A4.  According to the complainant there was manufacturing defect to the tyres.  It was admitted by the opposite parties that there was damage to the tyres of the car of the complainant.  But according to them, when the tyres were inspected by the technical service person of the 2^nd opposite party it was revealed that the tyres were damaged due to external damage /scoring due to sudden impact with sharp object.  The said damage is not covered by warranty.  Since there was no manufacturing defect to the tyres they were not liable to replace the tyres.

          10.     Admittedly, the car was purchased by the complainant on 19.05.2016.  Exhibit B1 is the letter issued by the 1^st opposite party to the complainant on 07.06.2016 when they took the tyres of the car from the complainant, in which it is stated that the odometer reading shows 1110kms.   The date of delivery 29.04.2016.  So it shows that damages were caused to the tyres within a few days from the date of purchase of the car and the car had run only 1110kms.  So form the circumstances it has beenfound that there was manufacturing defect to the tyres, unless otherwise proved.  According to the opposite parties damage was caused to the tyres due to sudden impact with some sharp object and there is no manufacturing defect to the tyres.  It is for the opposite parties to prove the same and the complainant is not expected to prove negative.  The opposite parties relied on Exhibit B2 report of the technical service person of the 2^nd opposite party in which it is stated that the tyres were damaged as a result of external damage/scoring due to sudden impact with sharp object.  But the report is not proved by examining the said technical service person of the 2^nd opposite party who had inspected the tyres and prepared Exhibit B2 report.  No explanation was given by the 2^nd opposite party for not examining the technical service person of the 2^nd opposite party to prove Exhibit B2 report who is the most competent witness to state about those facts.  Further DW1 has not stated how the damage was caused to the tyres and he deposed that he was not able to state how the damages was caused to the tyres.  DW1 also deposed that the 1^st opposite party has not reported that they have noted any damage to the car.  The counsel for the appellants submitted that the complainant had not taken steps to get an expert opinion.  As observed by the District Forum the tyres are with the 1^st opposite party and they had send it to the 2^nd opposite party for inspection and hence the complainant could not send it for expert opinion.  It is also proved that the tyres were covered by warranty.  Considering all these facts the District Forum came to the conclusion that there was manufacturing defect to the tyres manufactured by the 2^nd opposite party and they are liable to replace the tyres or to pay the cost of the same, Rs.13,000/- (Rupees Thirteen Thousand) to the complainant.  We consider that there is no reason/grounds to interfere with the said finding of the District Forum.

          11.     The counsel for the appellant in appeal A 326/2021 submitted that the tyres were manufactured by the 2^nd opposite party and there is no deficiency in service on the part of the 1^st opposite party.  But the District Forum directed the 1^st opposite party also to pay compensation and costs to the complainant.  The 1^st opposite party is the dealer of the car and the complainant purchased the car from them.  Complainant approached the 1^st opposite party with complaint regarding the damages to the tyres of the car and they had taken the tyres assuring to replace them with new tyres.  But they did not replace the tyres.  Since there was delay on the part of the 1^st opposite party complainant had to purchase two new tyres.  As a dealer of the cars, the 1^st opposite party is under a duty to provide service to the complainant who purchased the car from them promptly and to arrange replacement of the tyres at the earliest without delay.  As found by the District Forum from the facts and circumstances it can be found that there is deficiency in service on the part of both the opposite parties 1 and 2.  The compensation and costs ordered by the District Forum are just and reasonable.  Hence no interference is called for regarding the compensation and costs ordered by the District Forum.  In view of the above discussion the appeals are liable to be dismissed.

          In the result both appeals A 253/2021 and A 326/2021 are dismissed.  Parties are directed to suffer their respective costs.

           In appeal A 253/2021 the appellant has deposited Rs.13,000/- (Rupees Thirteen Thousand) at the time of filing the appeal.  The 1^st respondent/complainant is permitted to obtain release of the said amount on proper application, to be adjusted/credited towards the amounts ordered to be paid to him.

          In appeal A 326/2021 the appellant has deposited Rs.6,500/- (Rupees Six Thousand Five Hundred) at the time of filing the appeal.  The 1^st respondent/complainant is permitted to obtain release of the said amount on proper application, to be adjusted/credited towards the amounts ordered to be paid to him.