Haryana

Yamunanagar

CC/241/2015

Sandeep Makhija S/o Om Parkash Makhija - Complainant(s)

Versus

Makkar Tyres - Opp.Party(s)

Inperson

21 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

 

                                                                                    Complaint No. 241 of 2015

                                                                                    Date of institution: 16.07.2015.

                                                                                    Date of decision:   21.06.2016

Sandeep Makhija son of Sh.Om Parkash Makhija aged 41 years resident of House No.181/2, Raghunath puri, Lal Dawara, Yamuna Nagar, Distt. Yamuna Nagar.

                                                                                                                                             …Complainant.

                                                            Versus                   

1. M/s Makkar Tyres,near E.S.I.Hospital Jagadhri Road Yamuna Nagar, Distt. Yamuna Nagar through its Prop.
2. M/s Bridgestone India Pvt. Ltd Plot No. A-43,Phase -II,MIDC, Chakan, Village Sawardari,Taluka Khed,Distt.Pune,Maharastra,India through its Manager Sales. 

                                              …Respondents.

 

CORAM:          SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present: Complainant in person   

              Sh. Chetan Madan, Advocate, counsel for OP No.1(corrected vide order dated 24-6-16)         

 

ORDER

1                      The present complaint has been filed under section 12 of the consumer protection Act 1986 praying there in that respondents (herein after referred as OPs) be directed to replace the defective tyres or refund the cost of four tyres amounting to Rs.17000/- and also to pay compensation as well as litigation expenses.

2                      Brief facts of the present complaint, as alleged by the complainant are that he is a registered owner of car make i-20 Hundai bearing registration No. HR-02Y-6511 and he had purchased  4 Pc.tyres size 185/65/R-14 T/L vide Sr.No.CFF-3314 for sum of Rs.17000/- i.e. Rs 4250/- each of the car in question on 21-11-2014 from the respondent no.1  vide Bill No.1333 dated 21-11-2014. At the time of purchase, Op No.1 issued warranty card on the same day. On the next day of purchasing of the said tyres, it came to notice of the complaint that one tyre was not working properly and there was air leakage in the said tyre and on this, the complainant immediately approached to OP No.1 for its replacement, but the OP No.1 told that Engineer of the Company will visit on 27-11-2014. On 27-11-2014, the said defective tyre was checked by the said Engineer vide job card No.512199 dated 27-11-2014 and observed the defect “Shoulder air leakage”. It has been further stated that the complainant has filed a complaint No. 512 of 2014 in this Forum. Further it has been stated that one another tyre was having manufacturing defect and he contacted the Op No.1 for the problems of tyre, OP No.1 told that Engineer of the company will come on 12.05.2015. On 12.05.2015 Engineer of the company checked the defective tyre through job card bearing No. 529735 dated 12.05.2015 and observed that there is no manufacturing defect as sidewall cut present and the claim of complainant has been rejected. The complainant has further stated that he has visited several times to the OPs and requested to replace the said tyre as the tyre was within warranty period and there is no fault and negligence on his part. But the OPs flatly refused to listen his genuine request. As the OPs have not replaced the defective tyre, hence they are deficient in providing proper services and are indulging in unfair trade practice. Hence, this complaint.

3                      Upon notice, OPs appeared and filed its written statement by taking some preliminary objections such as complaint is baseless, false and has been filed just to extort the money from ops; if the complaint relates to any defects(alleged) in the goods then proper adjudication of the complaint, test/analysis of the alleged defective goods, in the present matter the tyre, as per Section13(1)(c) of the Consumer Protection Act 1986, needs to be carried out and on merit it has been stated that complainant has not come with clean hands before this Forum and has concealed material facts. True facts are that on 12.05.2015, qualified and trained technical service engineer of the OP No.2 inspected one tyre of size 185/65/R14 pattern B250 bearing serial no.CFF3314 and after duly inspecting the tyre, it was reported that damage in the tyre was “Sidewall cut penetration caused due to hit/impact by some sharp external object. No manufacturing fault in tyre.”Such kind of damage being not attributable to manufacturing defect thereby claim of complainant was not accepted with accordance with warranty policy of OP No 2. Thereafter, inspection docket along with the inspected tyre was handed over to the complainant. If the tyre would have been damaged due to manufacturing defect, the op NO 2 would have accepted the claim as per its warranty policy and offered the replacement. It has been further submitted that complainant has not produced any expert report from any laboratory in support of serious allegations made against the OP no 2 of the tyre having manufacturing defect. If the complainant alleges manufacturing defect in the tyre, then the defect could be proved by the laboratory test. Without such a test, the complainant being not a technical expert cannot reach to conclusion about the manufacturing defect in the tyre. It has also been stated that Bridgestone is a world class tyre and tube manufacturer with world class manufacturing facilities and its tyres made in India are certified by Central Institute of Road Transport (CIRT) for their road worthiness. Since the tyre is made of rubber and different features are provided based on performance requirement, abuse of tyre can lead to certain common damage like shoulder cut which is not attributable to any manufacturing defect and lastly prayed for dismissal of the complaint being there is no deficiency in the service on the part of OPs.                              

4.                     To prove his case, the complainant has tendered into evidence his affidavit as Annexure CW/A and documents such as Photo copy of Invoice dated 21.11.2014, as Annexure C-1, Photo copy report of engineer dated 12.05.2015 as Annexure C-2 and closed his evidence, whereas on the other hand, counsel for the OPs failed to adduce any evidence despite last opportunities, hence their evidence was closed by court order dated 13.06.2016.

5.                     We have heard both the parties and have gone through the pleadings as well as documents placed on file minutely & carefully. It is admitted fact that the complainant purchased four tyres from OP No.1 manufactured by OP No. 2 vide bill no. 1333 dated 21.11.2014 for an amount of Rs 17000/- i.e. Rs. 4250/- each.  From the perusal of Annexure C-2, which has been filed by the complainant himself, it is clear that there was sidewall cut on the tyre. Complainant argued that the tyre in question was having manufacturing defect and OPs are liable to replace the same, whereas counsels for the OPs No.1& 2 argued that there was no manufacturing defect in the tyre, the said tyre become defective due to cut on side wall which is evident from the report of Engineer of OP No.2 (Annexure C-2). The complainant cannot take undue advantage of his own wrong. Counsel for the OPs referred the case law titled Apollo Tyre Ltd. v/s P. Ayyavar reddy & Anr. Revision petition 4013 of 2007 decided by Hon’ble National Commission and also referred another case law titled as Suresh Chand Jain  v/s Service Engineer and sales supervisor, MRF Ltd. revision petition no 3845/2006 in which it was held that the “cut in the tyre may be due to negligent driving or otherwise but certainly cannot be said to be a manufacturing defect. Onus to prove that there was a manufacturing defect in the tyre was on the petitioner which he failed to discharge by leading any cogent evidence. The petitioner did not produce any expert evidence to either show the nature of defect or proof of manufacturing defect.  The petitioner has failed to prove that the tyres purchased by him suffered from any manufacturing defect.” 

6.                     After hearing the arguments advanced by both the parties and going through the case law referred by the counsel for the OPs, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of the OPs as the complainant has not produced any expert report from any laboratory in support of allegations that the tyre in question was having any manufacturing defect. If the complainant alleges manufacturing defect in the tyre, then the defect could be proved by the laboratory test as per section 13(1)(c ) of the Consumer Protection Act, which is reproduced as under:

                        Procedure on admission of complaint;

1. The District forum shall [ on admission of a complaint] if it relates to any goods:

a…

b…..

C)        Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods; the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory alongwith a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum:

7.                     Without such a test, the complainant being not a technical expert cannot reach to conclusion about the manufacturing defect in the tyre. Undisputed, the tyre in question becomes defective due to cut on the shoulder wall and a cut on the tyre can occur while running on the road due to the contact of tyre with any sharp edge. There is nothing on record to disbelieve the report of the company engineer (Annexure C-2). The complainant has also led no evidence to prove any manufacturing defect in the said tyre. Mere the car in question ran only 10km after purchasing the said tyre in question, it cannot be said that tyre in question could not be damaged due to fault/negligence of complainant/car owner. Hence, keeping in view the above noted facts, we are of the considered view that the tyre in question was not having any manufacturing defect. As such, there was no deficiency in service & unfair trade practice on the part of OPs.

8.                     Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies 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. 21.06.2016.

                                                                                                (ASHOK KUMAR GARG)

                                                (S.C.SHARMA   )                   PRESIDENT

                                                 MEMBER