IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 30th day of November, 2022.
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
C C No. 163/2019 (Filed on 05-10-2019)
Petitioner : Majo K.J.
S/o. Joseph K.C.
Kodakasseriyil House,
Ponnukkara P.O.
Mukundapuram Taluk,
Thrissur.
(Adv. Akash K.R. and Adv.Indira K.K)
Vs.
Opposite parties : (1) M/s. M.K. Motors,
Automobiles Division of MPL
Malankara Building,
Kodimatha – 686039
Rep. by its Manager.
(Adv. Anu George, Adv. Noble Joseph, Adv. Divya Susan Suil, Adv. Rosh Mathew
Adv. Siby Chenappady and Adv. Appu Jose)
(2) M/s. Tata Motors Limited,
Bombay House, 24,
Homi Modi Street, Hutatma Chowk,
Fort, Mumbai – 400001
Rep. by its Managing Director
(Adv. M.K. Jose and Adv. V. Krishna
Menon and Adv. Prison Philip)
(3) M/s. Bridgetsone India (P) Ltd.
Plot No.A-43, Phase – 11,
M,DC Chakan Village
Sawardari P.O. Talakakhed Dist.
Pune, Maharastra,
Rep. by its Managing Director.
(Adv. N. Jagath)
(4) Exon Tyres,
Manipuzha P.O.
Kottayam – 686013
Rep. by its Manager.
O RDER
Sri. Manulal V.S. President
The complaint is filed under section 12 of the Consumer Protection Act 1986.
Nutshell of the complaint is as follows:
Complainant owned brand new Tata Tiago car and the said vehicle is delivered to the complainant on 25-2-2019 through the first opposite party by the second opposite party manufacturer. The third opposite party is a tyre manufacturer whose tyres the first and second opposite parties have fitted to the
vehicle. The fourth opposite party is the authorized dealer of the third opposite party. On 7-9-2019 while the complainant and his family were on his way to Edathotty in Irutty, on reaching Peravoor it was noticed that the left side front tyre of the vehicle was busted. It was also noticed that the right side front tyre as
bulged and right side back tyres as ripped and bulged. From Bharath tyres Peravoor the complainant bought a new tyre manufactured by the third opposite party and changed the busted tyre and continued his journey. On 7-9-2019, the vehicle of the complainant had covered only a distance of 2200 Kms. The complainant immediately complained these facts to the first opposite party and on 9-9-2019 entrusted the vehicle with the service centre of the first opposite party. The first opposite party returned the busted tyres after taking the photograph of the same and kept with them the other four tyres including the newly bought tyre for inspection. Though the first opposite party informed the complainant that they will check the issues and will solve the same in 3 days , first opposite party failed to find a solution as promised . The complainant on 13-9-2019 sent an e- mail to the customer care of the second opposite party . The
customer care of the second opposite party replied that they have intimated the first opposite party to provide all necessary support to the complainant. The first opposite party on 14-9-2019 wrote an e-mail to the complainant stating that they have already reported the same to the third opposite party and it was because of Onam vacation that they are taking days.
On 25-9-2019 the first opposite party forwarded a claim inspection report from the third opposite party whereby the third opposite party rejected the replacement warranty of the tyres as their engineer remarked that the damage to the tyres was due to hitting from external blunt object causing inner ply card damage resulting in side wall bulge. That receiving the same the complainant issued an another e-mail to first opposite party requesting to test the other entrusted tyres as the third opposite party has checked only one tyre out of the four tyres the complainant have entrusted with the first opposite party . The first opposite party on 27-9-2019 replied to the said e-mail and informed that they have already given four tyres of the car to the fourth opposite party. The complainant asked for the inspection of remaining three tyres which he has entrusted with the first opposite party alongside the tyre of which an inspection report has been issued but the first opposite party did not care to solve the issue raised. The first opposite party was keen in receiving back the four tyres which was fitted to the complainant’s vehicle than solving the issues of the complainant.
The complainant on 28-9-2019 sent an e-mail to the first opposite party asking them to bring the issue to the third opposite party as it was the first who took the tyres from the complainant. The first opposite party soon after receiving the e-mail from the complainant than sparing the grievances of the complainant issued another e-mail to the complainant asking for the return of tyre they have fitted. The complainant on 30-9-2019 issued another e-mail asking for the return of his tyres and on that very day he received back his four tyres and returned the
tires fitted by the first opposite party. It is averred in the complaint that bursting of the tyre and bulging of other two tyres of a brand new car simultaneously in running itself that the same is not due to hit of external object and the same is due to manufacturing defect of the tyres. The vehicle was covered only 2,200 Kms. The act of the 1st opposite party in delivering the vehicle without checking the quality of tyres to the complainant and the act of the second opposite party in fitting inferior quality tyres to the manufactured vehicle and the act of the third opposite party in manufacturing and supplying inferior quality tyres and rejecting the genuine claim of the complainant for warranty amounts to deficiency in service and unfair trade practice. Hence this complaint is filed by the complainant praying for an amount of Rs.15,980/- as cost of tyres, further compensation of Rs.50,000/- for mental agony and harassment and Rs.5,000/- as cost of litigation.
Upon notice except the fourth opposite party other opposite parties appeared before the commission and filed separate version. In spite of receipt of notice, the fourth opposite party neither appeared before the Commission nor filed version. Hence fourth opposite party was set ex-party.
Version of the first opposite party is as follows:
First opposite party tried to provide a solution to the problem where the first opposite party sent a mail to the third opposite party on 9-9-2019 regarding the issue and asked the third opposite party to inspect the tyre and to take the required necessary action. Another mail was sent on the same day itself along with the photos of the busted tyres asking for quick action, as the complainant was being aggressive with his demand. The third opposite party took time to respond back since it was Onam vacation, hence it is not the fault of the first opposite party for the delay in reply to the complainant. The first opposite party received the claim report and the rejection letter from the third opposite party on 19-9-2019 where the third opposite party has rejected the claim as the damage to the tyres was not due to any manufacturing defect but due to the action of the complainant. The mail was forwarded to the complainant. The first opposite party has clearly stated in the email dated 27-9-2019 that all the four tyres had been handed over to the fourth opposite party for inspection and for further clarification the complainant can contact the fourth opposite party directly. The bursting of tyre and bulging of the other tyre of the car shows that it was due to the rash and negligent driving of the complainant over hazardous roads and running over curb/potholes and it is not the fault of the first opposite party. Service of tyres does not lie with the first opposite party but on the third and fourth opposite parties. The first opposite party did not harass the complainant asking for the return of the temporary tyres, merely a request was made as the issue was solved and it was found that the damage had occurred due to the complainant’s rash driving over hazardous roads and over curb pot holes. The complainant on his own accord sent a letter asking to relieve his tyre and agreed to return back the temporary tyres on 30-9-2019. The first opposite party is not a necessary party in the alleged dispute and the complainant is not entitled for the reliefs
Second opposite party filed the version contending as follows:
The complaint is not maintainable in law and on facts qua second opposite party, for the reasons stated herein below, which are set out independently and without prejudice to one another; First opposite party 1 is a limited company incorporated in India under the provisions of Companies Act, 1913. An existing Company within the meaning of Companies Act , 1956, having its registered office at Bombay House,24, Homi mody street, Mumbai and has been engaged in manufacturing various types of commercial vehicle and passenger cars. However, no cause of action has arisen qua the first opposite party in the instant complaint. The relationship between the first opposite party and the second opposite party is of Principal to principal and first opposite party is not liable for alleged transactions between the complainant and the first opposite party. The warranty offered on every vehicle manufactured by the second opposite party is subject to the terms and conditions of the warranty as contained in the operator’s service book, one of which is that warranty in respect of proprietary items would be as prescribed by the manufacturer of the said proprietary item.
The vehicle was purchased by the complainant is of the highest quality and complainant had taken the vehicle, after being satisfied with its condition and its performance. The said vehicle was delivered after carrying out the Pre-delivery inspection by the dealer.
The complainant having approached the first opposite party with a complaint that the tyres of his car had developed bulges and requesting for replacement of the same, the service personnel in the workshop of the first opposite party had informed the complainant that as the tyre was proprietary item it would have to be forwarded to the manufacturer /authorized outlet of the manufacturer of the tyre for their inspection and doing the needful. Accordingly the first opposite party having forwarded all the tyres of the car of the complainant to the fourth opposite party, they had after due inspection returned the tyres stating that there was no manufacturing defect with the tyres and that the bursting on one tyre was on account of the same hitting on external object. The second opposite party has no control whatsoever over the decision of the manufacturer/authorized dealer outlet of the manufacturer of the tyre. It is understood that the first opposite party had accordingly apprised the complainant of the facts as stated herein above and further provided the complainant with the inspection report. It is submitted in the version that as there is no defect much less any manufacturing defect in tyres/vehicle purchased by the complainant he is not entitled either in law or on facts to seek replacement of the tyres/ vehicle or refund of its price.
Version of the third opposite party is as follows:
Warranty on the products manufactured by the third opposite party is provided for an initial period of three years from the date of purchase, however, the warranty stands only against the tyre damaged due to manufacturing defect and not against damages caused by road hazards and other external factors. It is submitted in the version that as per warranty policy of third opposite party, any damage in the tyre is to be inspected by the qualified and trained technical service engineer of the third opposite party and if after inspection the tyre reports damage
attributable to manufacturing defect then the same is replaced in accordance with the warranty policy. The complainant has lodged a complaint related to four tyres regarding bulge on the side wall with customer care support of the third opposite party and the first opposite party forwarded the complaint to the third opposite party and service engineer of the third opposite party prepared inspection report of the tyres based on photographs and data sent by the first opposite party. On 17-9-2019 the service engineer of the third opposite party had inspected total four tyres, out of that two tyres were found well in condition hence no need to prepare further inspection report, and remaining two tyres were duly inspected by the service engineer and prepared e- inspection report for two tyres of size 175/60 R15 of pattern B250.The engineer vide his inspection found that damage to the sidewall bulge was due to impact from external object. Tyre sidewall got pinched between rim flange and external blunt object during impact. Tyre did not suffer from any manufacturing defect, hence It is not covered under warranty according to the engineer’s inspection report. The engineer had rightly refused the claim of the complainant.
It is submitted in the version that the tyre is the only part of the vehicle which touches the road surface directly and hence it is open to risk of road hazards caused by objects like sharp stones, pathole edges, dividers. It is further submitted that total tyre failure could be immediate or delayed depending upon the severity of the impact of the external hard object on the tyre. The complaint was timely attended and solely decided on merits. It was denied that tyres suffered from manufacturing defect. Complainant is not entitled to any amount, as prayed by him from third opposite party and third opposite party prayed for dismissal of the complaint.
Complainant filed proof affidavit in lieu of chief examination and marked exhibit A1 to A14. As against it, first opposite party tendered in evidence affidavit of Jain Elias, Legal Manager and marked Ex.B1 to B5. Padmanbhan N.V. who is the authorized representative of the third opposite party filed proof affidavit and exhibit B6 series documents were marked from the side of the third opposite party.
On evaluation of complaint version and evidence on record we would like to consider the following point:
- Whether there is any deficiency in service or unfair trade practice from the part of the opposite parties?
- If so what are the reliefs?
Point number 1 and 2 together
There is no dispute on the fact that the complainant owned brand new Tata Tiago car and the said vehicle is delivered to the complainant on 25-2-2019 through the first opposite party by the second opposite party manufacturer. Exhibit A1 is the registration certificate of the said vehicle. The specific case of
the complainant is that on 7-9-2019 while he and his family were on their way to Edathotty in Irutty, on reaching Peravoor the left side front tyre of the vehicle was busted and it was also noticed that the right side front tyre as bulged and right side back tyres as ripped and bulged. On 7-9-2019, the vehicle of the complainant had covered only a distance of 2200 Kms. According to the complainant bursting of the tyre and bulging of other two tyres of a brand new car simultaneously in running itself that the same is due to manufacturing defect of the tyres. The complainant immediately complained these facts to the first opposite party and on 9-9-2019 the first opposite party vide exhibit B1 intimated this fact to the third opposite party and entrusted the vehicle with the service centre of the first opposite party. In exhibit B1, it is stated that “One taigo vehicle came with FTR RH tyre side wall bulge & rear LH tyre side wall bulge and crack , Stepiny tyre crack. The customer said that, FRT RH tyre firstly bulge and crack, so he use stepiny tyre, but its started to bulge. We are forwarding it to you, please inspect the tyre and do the necessary action. The vehicle details are given below:”
On that day itself the first opposite party sent exhibit B2 email to the third opposite party along with the photographs of the tyres. In exhibit B2 it was stated by the first opposite party that the front right hand both tyre bulging one is stepiny) , rear right hand tyre and rear left hand tyre bulging condition. It is further stated that check details and there is no any hit or abnormalities there. And vehicle covered just 2845 KM only.
The third opposite party vide exhibit A7 inspection report rejected the replacement of the tyres as the damage to the tyre was due to hitting from external blunt object causing inner ply card damage resulting in side wall edge. On perusal of Exhibit A7 we can see that it was the inspection report of the tyre having the serial no 4W79DDK1029. The third opposite party vide exhibti B6(b) rejected the claim for replacement of another tyre stating that damage in the tyre was side wall bulge caused impact by an external blunt object. And the claim of the complainant was rejected according to the warranty policy of the third opposite party. Exhibit B6 is the copy of the warranty policy of the third opposite party. It is admitted by the third opposite party that the third opposite party provides warranty for the tyre for an initial period of three years from the date of purchase. The third opposite party relied on clause 4 of the exhibit B6 which says that the tyre and tubes shall be covered under warranty for manufacturing defect only. They further relied on sub clause (I) of clause 18 of exhibit B6 in which the third opposite party did not offer warranty if the damage from road hazards eg. Impact damage, puncture, snag, bruise, stone drill or bulge.
Exhibit A7 and B6(b) impliedly indicates the manufacturing defect in the tyre otherwise no specific evidence has been referred by this engineer how the impact/bulge in the tyre was from a road hazard . The tyres are made according to road conditions in the country. There may be no road in India which does not have road hazard. In these circumstances, there is no purpose for warranty, in case the tyre got impact/bulge for minor road hazard. No doubt that he has referred in its report that the impact/bulge in the tyres was due to road hazards but he has not categorically stated about the cause of damage. In his report he stated the road hazards as the possible cause of the damage. In this juncture it is pertinent to note that it is admitted by the third opposite party that inspection of the tyres conducted based only the photographs of the tyres. The third opposite party has no case that they had carried out a physical inspection of the tyres. So far as road hazards are concerned as referred above, every road has hazard one way or the other and no specific road hazard has been referred in the report. Therefore, the defect in the tyres could not be ignored merely because of road hazards. Therefore, we are of the opinion that there is sufficient evidence to prove that the damage was done to tyres purchased by the complainant from third opposite party within the warranty period and according to the warranty terms, they are required to replace it.
In case “MRF Limited Vs Ram Sawrup &Anr” I (2006)CPJ-7, Hon’ble Haryana State Commission in similar circumstances, upheld the order of the District Forum, holding that the damage to the tyres was within the warranty period, then it amounts to deficiency in service and in Para-5 (relevant portion), observed as follows:-
“Therefore, the complainant has fully established that the tyre in question had suffered damage within a period of six months of its purchase and so to say within a warranty period and for that reason the District Forum rightly concluded that there was deficiency of service on the part of the opposite parties. The District Forum had taken notice of the fact that it has been used for a period of six months and for that reason after making appropriate deductions, compensation amount has been determined in addition to the litigation expenses”.
Thus we are of the opinion that the third opposite party has committed deficiency in service by rejecting the benefits of warranty to the complainant.
Second opposite party who is the manufacturer of the Tiago car contended that warranty in respect of proprietary items would be as prescribed by the manufacturer of the said proprietary item.
We have perused the Clause-J of Section-2 of the consumer protection Act 1986, where the manufacture has been defined and it is reproduced for the purpose of convenience i.e. manufacturer means a person i.e.:-
i) makes or manufacturers any goods or part thereof; or
ii) does not make or manufacture any goods but assembles parts
thereof made or manufactured by others; or
iii) puts or causes to be put his own mark on any goods made or
manufactured by any other manufacture.
From the above definition, it is clear that the manufacturer also includes the assembling of the parts made or manufactured by others. In the present case, the second opposite party is the manufacturer of the Tata Tiago car and first opposite party is the dealer of Tata cars and Tata Tiago car was purchased by complainant on 25-2-2019 and within the warranty period damage of the tyre was reported and it was due to the defect in tyres and the same were replaced by spare tyres by the first opposite party and first and second opposite party are liable for the same and they cannot claim that for the defect in tyres, the consumer should approach the manufacturing company of the tyres, from whom the 2nd opposite party has purchased the tyres.
The argument that the warranty conditions did not cover the tyres is without any basis and it is against the definition of the manufacturer, as provided under the Act and the provisions of the Act are to apply and not terms and conditions framed by the opposite parties two and three which are against the provisions of the statute. Thus, we are of the opinion that the second and third opposite parties has committed deficiency in service by not providing the warranty as promised by them.
A purchaser of a new branded car would not expect that the tyres of his car would damage within a short span of 2845 KM. It is proved by exhibit A3 and A14 that the complainant had spent Rs.5,700/- and Rs.10280/- respectively for new three tyres. No doubt the deficient act of the second and third opposite parties caused much mental agony and hardship due to the complainant.
On the basis of the above discussed evidence and circumstances of the case we allow the complaint against the second and third opposite parties and pass the following order.
- We hereby direct the second and third opposite parties to pay Rs.15,780/- ie the amount spent by the complainant for new tyre to the complainant.
- We hereby direct the second and third opposite parties to pay Rs.25,000/- as compensation for the deficiency in service committed by the second and third opposite parties.
- We hereby direct the second and third opposite parties to pay Rs.3000/- as cost of this litigation to the complainant.
The second and third opposite parties are jointly and severally liable to pay the awarded amounts to the complainant within 30 days of receipt of copy of this Order. If not complied as directed, the award amount shall carry 9% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 30th day of November, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Copy of Registration certificate (KL-45-S-2884)
A2 – Copy of tax invoice dtd.25-02-19 by MK Motors
A3 – Copy of quotation dtd.07-09-19 by Bharath Tyres
A4 –Printout of e-mail dtd.13-09-19 to customer care of 2nd opposite party
A5 - Printout of e-mail dtd.14-09-19 to customer care of 2nd opposite party
A6 - Printout of e-mail dtd.14-09-19 to 1st opposite party
A7 – Copy of claim inspection report dtd.17-09-19
A8 – Printout of e-mail letter dtd.25-09-2019 1st opposite party
A9 –Printout of e-mail dtd.27-09-19 by 1st opposite party to petitioner
A10- Printout of e-mail dtd.27-09-19 by 1st opposite party to petitioner
A11- Printout of e-mail dtd.28-09-19 by petitioner to 1st opposite party
A12 - Printout of e-mail dtd.30-09-19 by petitioner to 1st opposite party
A13-Copy of letter dtd.30-09-19 by petitioner to Service Manager of 1st
opposite party
A14 – Copy of bill no.1681 dtd.01-10-19 by Speed Heel Tyres
Exhibits marked from the side of opposite party
B1 – Copy of e-mail letter dtd.09-09-19 to 3rd opposite party (subject to proof)
B2 – Copy of e-mail letter dtd.09-09-19 by 1st opposite party to 3rd opposite
party
B3 – Copy of e-mail letter dtd.14-09-19 by 1st opposite party to complainant
B4 – Copy of e-mail letter dtd.20-09-19 by 1st opposite party to P. Sivakumar
B5- Copy of claim inspection report dtd.17-09-19
B6 – Copy of warranty card by 3rd opposite party
B6 (a) and (b) – Copy of claim inspection reports
B6(c) - Copy of damage mechanism given in ITTAC manual
B6(d) – Copy of attachment no license No.CM/L-8794208
B(e) –Copy of CIRT for tyres and test results
By Order
Sd/-
Assistant Registrar
