Haryana

Yamunanagar

CC/957/2011

Virender S/o Prem - Complainant(s)

Versus

M.R.F.Ltd. - Opp.Party(s)

Raghu Bir Singh

23 Dec 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                    Complaint No. 957 of 2011

                                                                                    Date of institution: 08.09.2011.

                                                                                    Date of decision:   23.12.2016

Virender aged about 34 years son of Sh. Prem, resident of village Sirsi, District Karnal.                                                                                                       

                                                                                                                 …Complainant.

                                    Versus

1. M.R.F. Limited, W-9, Industrial Area, Yamuna Nagar through its Technical Service Engineer Shashikant Thakur, District Yamuna Nagar.
2. Krishna Automobiles, Phonta Sahib Road, Opposite Anaj Mandi, Khizrabad, District Yamuna Nagar, through its Prop. 

 

       …Respondents.

 

CORAM:          SH. ASHOK KUMAR GARG, PRESIDENT

                          SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Raghubir Singh, Advocate, counsel for complainant.   

               Sh. Harbhajan Singh, Advocate, counsel for respondent No.1

               Sh. Rajinder Saini, Authorized Representative for respondent No.2 

 

ORDER

1                      The present complaint has been filed under section 12 of the consumer protection Act 1986.

2                      Brief facts of the present complaint, as alleged by the complainant are that complainant had purchased one JCB machine bearing chassis No. 1737126, Engine No. H00006632 on dated 07.06.2011 from the OP No.2 who is authorized dealer of the manufacturer of JCB Machine India Limited Balabgarh, Haryana. At the time of purchase of the said JCB a warranty certificate was also issued by Op No.2 on dated 07.06.2011. The said JCB machine was delivered to the complainant on 08.06.2011 but only after 20 days of the working of the said JCB Machine in the field there appeared some cracks in the extra rubber (Guddi) of the rear tyres of the JCB Machine and these cracks appeared on all the guddis of both the rear tyres. Meaning thereby that the rear tyres of the JCB Machine was having manufacturing defect. The tyres in question were manufactured by OP No.1 MRF tyre ltd. and the same were supplied to the manufacturer of the JCB Machine. Upon this, complainant made a complaint to OP no.2 on 28.06.2011 who conveyed the complaint to Op No.1 on 15.07.2011 but the OP No.1 has totally rejected the claim of the complainant vide its letter dated 20.08.2011 bearing reference No. STEY/102/11 and STEY/101/11. Since the defect in the rear tyres arose within a warranty period i.e. only 20 days after the purchase of the same, so, the complainant is entitled for the replacement of these tyres with new one and also entitled to get damages from the OPs but the Ops have totally refused to accede the genuine and legal request of the complainant. Lastly, prayed for directing the Ops to replace both the rear tyres of the JCB Machine and also to pay compensation as well as litigation expenses. Hence, this complaint.

3.                     Upon notice, OPs appeared and filed their written statement separately. OP No.1 filed it written statement by taking some preliminary objections such as the subject tyre fitted vehicle was used for commercial purpose as the complainant had used the vehicle only to earn the profit from business activities, hence, the complaint filed by the complainant is not maintainable; the present complaint is also not maintainable since defective tyres have not been got inspected from the approved laboratory by the complainant as required under section 13(1)(c ) of the Consumer Protection Act and on merit, purchase of the JCB machine bearing chassis No. 1737126 Engine No. H00006632 is denied for want of knowledge and further it is also denied that warranty certificate was issued by the OP No.2 providing a warranty for replacement of defective parts. The liability of the Op No.1 arises only when the product is having manufacturing defects i.e. due to usage of defective material or faulty workmanship. The OP No.1 is not liable if the product is damaged due to misuse, negligence, improper or in adequate maintenance or accident or normal wear and tear. It has been further mentioned that Op No.1 company is manufacturers at largest range of tyres in India and enjoys the highest brand preference for superior quality, appearance and long life. The tyres mentioned in the complaint were damaged due to the misuse, negligence, improper or inadequate maintenance of the tyres. The tyres manufactured by Op No.1 adheres to strict standard of quality and is free from any manufacturing defect. Rest contents of the complaint were denied being wrong incorrect and lastly, prayed for dismissal of complaint.

4.                     OP No.2 filed its written statement by taking some preliminary objections such as OP No.2 is neither manufacturer of the machine/MRF tyres nor have sold the JCB machine/MRF tyres to the complainant; the OP No.2 have not entered into any service agreement with the complainant, so, the complainant does not qualify to be the consumer of OP No.2; since the complainant has not been operating the machines himself as is clear from the reports prepared during the visit of our service engineer at site, reports having been signed by his operator/representative which is essential element to become a consumer and hired an operator to operate the machine, he is not a consumer and on merit, it has been specifically denied that the complainant purchased the machine/MRF tyres from the Op No.2 or hired any services of the Op No.2. It has been further denied that OP No.2 issued any warranty certificate or assured the complainant that tyres would be replaced free of costs for the simple reason that nature of job did not fall in the jurisdiction of Op No.2. The OP No.2 only has referred the case in respect of the tyres problems to the manufacturer MRF limited by sending Email on 15.07.2011. Further, it has been mentioned that the cracks in the tyre developed in the 297 hours run on the machine. This fault was referred to Op No.1 by Op No.2 well in time. Hence, there was no deficiency in service or negligence on the part of the OP No.2 and lastly prayed for dismissal of complaint.

5.                     In support of his case, complainant tendered into evidence his affidavit as Annexure CX and documents such as photo copy of sale certificate form No.21 as Annexure C-1, photo copy of temporary registration certificate as Annexure C-2, Photo copy of warranty certificate as Annexure C-3, Photo copy of rejection letters bearing No. STEY/102/11 and STEY/101/11 dated 20.08.2011 as Annexure C-4 and C-5 respectively and closed his evidence.

6.                     On the other hand, counsel for Op No.1 tendered into evidence affidavit of Sh. Shashikant Thakur Sales and Technical Engineer of MRF tyres as Annexure RX and documents such as photo copy of rejection letter bearing No. STEY/102/11 dated 20.08.2011 as Annexure R-1 and closed the evidence on behalf of Op No.1.

7.                     Representative of Op No.2 Sh. Rajinder Saini tendered into evidence affidavit of Sh. Sachit Passi, Managing Partner as Annexure R2/X documents such as photo copy of warranty certificate as Annexure R2/1, Photo copy of Email sent to the MRF tyres as Annexure R2/2 to R2/6 and photo copy of C.P.Act clause 1.2(1)(d) as Anenxure R2/7, Photo copy of service visit report dated 20.09.2011 as Annexure R2/8 and R2/9 and closed the evidence on behalf of OP No.2.

8.                     Written argument filed by representative of Op No.2. We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

9.                     The only plea of the complainant is that rear both tyres of the JCB Machine of the complainant become defective within a period of 20 days of the working of the said JCB in the field as some cracks in the extra rubber (guddi) in both rear tyres were occurred which was due to manufacturing defect. Learned counsel for the complainant argued that genuine claim of the complainant lodged through OP No.2 has been wrongly repudiated vide letter dated 20.08.2011 (Annexure C-4 and C-5) on the flimsy ground by the Op No.2 MRF Tyre Ltd. on the ground that there was no manufacturing defect in the tyres and the tyres were damaged due to tread chipping due to bad terrain.

10.                   On the other hand, learned counsel for the Op No.1 argued at length that both the rear tyres were inspected by the Service Engineer of OP No.1 and it was found that the tyres were damaged due to tread chipping due to bad terrain. Meaning thereby that there was no manufacturing defect in the tyres in question. Learned counsel for the OP No.1 draw our attentions towards the rejection letters Annexure C-4 and C-5/R-1 and argued that at the time of inspection, the tyre was left with 34 mm NSD i.e. 78% of the tread life is still left. Learned counsel for the Op No.1 further argued that the complainant has totally failed to place on file any expert/lab report which is mandatory under section 13(1)( C) of the Consumer Protection Act and in the absence of any expert opinion it cannot be said that there was any manufacturing defect in the tyres in question. Learned counsel for the OP No.1 further argued that the damages to the tyre in question were due to the carelessness and negligence on the part of the complainant himself. Further learned counsel for the OP no.1 argued that the complainant was using the JCB machine in question for earning the profit as he was using the machine for commercial purpose and referred the case law titled as JCB India Limited Versus Mallappa Sangappa Mantri & Another, Revision Petition No. 4260 of 2010 decided on 01.08.2012 (National Commission) and also referred the case law titled as D.Venkata Subbaiah Cold Fields & others, First Appeal No. 122 of 2010 decided on 26.07.2011 National Commission. Lastly prayed for dismissal of complaint.

11.                   Representative of Op No.2 also argued that this Forum have no jurisdiction to entertain and try the present complaint as the complainant has directly purchased the JCB machine from the manufacturer i.e. JCB India Limited Balabhgarh, Haryana and Op No.2 have no concern whatsoever as neither the Op No.2 has provided any service to the complainant nor the JCB/MRF tyres fitted in the machine were sold by OP No.2. The authorized representative draw our attentions towards the copy of Emails Annexure R2/2 to R2/5 and argued that Op No.2 has only forwarded the complaint to the manufacturer i.e. MRF tyres. Hence, there was no deficiency in service or unfair trade practice on the part of Op No.2 and referred the case law titled as Birla Technologies Versus National Glass and Allied Industries Ltd. Civil Appeal No. 10650 of 2010 Supreme Court decided on 15.12.2010 and JCB India Ltd. Versus Jai Chand Suppliers and others, First Appeal No. 419/2010 decided on 08.06.2012, State Consumer Disputes Redressal Commission, Haryana, Panchkula and another case titled as JCB India Ltd. Versus Pawan Sood, First Appeal No. 200 of 2012 decided on 20.05.2013 State Commision Shimla and another case titled as JCB India Ltd. Versus Ashwani Kumar, First Appeal No. 227 of 2010 decided on 12.04.2012 State Commission, Shimla. Lastly prayed for dismissal of complaint.

12                    After hearing learned counsel for the parties and going through the case law, we are of the considered view that the complainant has totally failed to prove his case as the complainant has neither moved any application under section 13(1)( C) of the Consumer Protection Act 1986 nor has placed on file any expert/lab report from which this Forum can consider that both the rear tyres were having any manufacturing defect. The complainant has only placed on file the temporary registration certificate Annexure C-2 and sale Certificate (form No.21) Annexure C-1 and warranty service Annexure C-3 and Rejection letters issued by Op No.1 MRF tyres ltd. Annexure C-4 and C-5 in support of his case whereas from these documents it is nowhere proved that the tyres in question were having any manufacturing defect. Although in the rejection letters Annexure C-4 and C-5 it has been mentioned that the tyres in question were damaged due to tread chipping which was occurred due to the bad terrain but the complainant has totally failed to prove that these defects can occur due to the manufacturing defect. When the Op No.1 has taken the specific plea that both the rear tyres were damaged due to bad terrain it was the duty of the complainant to rebut the same by filing the expert opinion or lab report but the complainant has not done so. Even, the complainant has not placed on file any independent cogent evidence to rebut the version of the OPs. Even after going through the rejection letters Annexure C-4 and C-5, it is duly evident that both the rear tyres were having 78% tread life till the date of inspection on 20.08.2011 after running the JBC machine 297 hours as mentioned in the copy of Email Annexure R2/2.

13.                   Even from the other angle also, it is not the case of the complainant that he used the JCB Machine for his livelihood. The JBC machine runs 297 hours within a short span of time, meaning thereby, that the complainant was using the JCB Machine for carrying business activities i.e. the said JCB Machine was used for commercial purpose. Therefore, as per section 2(1)(d) of the Consumer Protection Act, 1986 the complainant does not fall within the definition of consumer. The Hon’ble National Commission in case titled as Mohd. Haseeb Ahmed Versus Maharashtra State Electricity Board and others, 2010 CTJ page 886 National Commission wherein it has been held that a consumer had obtained electricity connection for stone crusher held him not to be a consumer and another case titled as D. Ghodawat Versus R.R.B. Energy Ltd. 2010 CTJ page 928 National Commission has held that “  “Keeping in view the admitted position emanating from the complaint itself and other aspects of this case, we are convinced that the machine was being used by the complainant for earning profits and hence for commercial purposes by employing a number of people and we do not find any denial to these facts by the complainant anywhere on record. In the circumstances, as already held by this commission in the cases cited by the counsel, we are of the considered view that when a consumer buys goods for commercial purpose and avails of services attached to the goods in the nature of warranty, he cannot be considered to be a consumer even for the purpose of services during the warranty period in view of the amendment to section 2(1)(d)(i) of the Act which came into force w.e.f. 15.03.2003. In view of this, the complainant cannot be held to be a consumer with reference to the service attached to the warranty and the complaint is not maintainable before any Consumer Forum. Consequently, the revision petition stands allowed and the impugned order is set aside and complaint is dismissed with no order as to costs”.

14.                   Resultantly, in the circumstances noted above and going through the law, the complaint of the complainant is not maintainable and the same is hereby dismissed with no order as to costs. However, the complainant is at liberty to approach the appropriate court, if so advised.  Exemption of time spent before this Forum is granted in terms of judgment of the Hon’ble Supreme Court of India in case titled as Luxmi Engineering Works vs. P.S.G. Industrial Institute (1995)III SCC page 583.The Assistant is directed to return the original documents, if any, to the complainant after retaining the photo copies of the same on the file. Copy of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance

Announced in open court. 23.12.2016.

                                                                                                (ASHOK KUMAR GARG)

                                                                                                 PRESIDENT

                                                                                                 DCDRF,YAMUNANAGAR                              

                                                (S.C.SHARMA   )                  

                                                 MEMBER