IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 23rd day of November, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No. 130/2012 (Filed on 21.07.2012)
Between:
Sanakan. S,
Santhinikethanam,
Njalikandam,
Kaviyoor.P.O.,
Thiruvalla, Pathanamthitta.
(By Adv. Anzil Zachariah) …. Complainant
And:
1. The Manager,
‘Tyre India’,
M.C. Road,
Thiruvalla – 689 101.
2. Manager,
Apollo Tyres Ltd.,
No. 421 A & C Ward No. 1,
Edappally, Cochin – 680 024.
(By Adv. K.T. Thomas) …. Opposite parties.
O R D E R
Smt. K.P. Padmasree (Member):
Complainant filed this complaint against the opposite parties for getting a relief from the Forum.
2. Brief facts of the case is as follows:- Complainant purchased 2 tyres from the 1st opposite party manufactured by the 2nd opposite party. Complainant fitted the tyres in his Tempo Traveller. While running 8500 kms., one side of one tyre bulged and that portion weared. Complainant brought the tyre before the 1st opposite party to replace it with a new one. 1st opposite party sent it to the manufacturer 2nd opposite party. On 22.06.2012, 1st opposite party informed the complainant that manufacturer rejected the repair as well as replacement on a finding that the defect caused due to ‘misalignment wear’.
3. Complainant done wheel alignment also with the 1st opposite party. Due to the defect of the tyre, complainant had lost long trips. According to the complainant, defect of the tyre at 8500 kms. is due to the manufacturing defect of the tyre. Non redressal of the complainant’s grievances by the opposite parties is a clear deficiency in service and they are liable to the complainant for the same. Hence this complaint for getting a new tyre or its price of ` 5,750 along with compensation of ` 48,000 for the loss of his income and cost of ` 5,000.
4. Opposite parties entered appearance and filed common version with the following main contentions. Opposite parties admitted that the complainant purchased tyres from the opposite parties. On the basis of the complaint of the complainant, the said tyre was subjected to thorough examination by the technicians of 2nd opposite party and found that the complaint of the tyre is misalignment wear and not due to any manufacturing defect. Examination report of the tyre along with rejection letter is also communicated to the complainant.
5. Moreover complainant is not a consumer, as the transaction between the opposite parties and complainant was purely commercial one. The averment in the complaint that he couldn’t operate trips to distant destinations and he had sustained loss itself establishes the fact that the complainant purchased the tyre for commercial purpose. Therefore, this complaint is not maintainable.
6. Opposite parties have rendered prompt services to the complainant immediately, after the complainant approached the opposite parties. There is no deficiency in service from the part of the opposite parties. Hence opposite parties prays for the dismissal of the complaint with compensatory cost.
7. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
8. The evidence of this complaint consists of the oral testimony of PW1, DW1 and Exts.A1 to A3 and B1. After closure of evidence, both sides were heard.
9. The Point:- Complainant’s allegation is that he had purchased two tyres from the 1st opposite party manufactured by 2nd opposite party. While running 8500 kms., one side of one tyre bulged and that portion weared. According to the complainant, the defect occurred due to the manufacturing defect. Hence complainant prays for getting the price of the tyre along with cost and compensation.
10. In order to prove the complainant’s case, complainant filed proof affidavit in lieu of his chief examination along with 3 documents. On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced by the complainant were marked as Exts.A1 to A3 series. Ext.A1 is the photocopy of the identity card issued by Kerala Motor Transport Workers’ Welfare Fund Board in the name of the complainant. Ext.A2 is the cash bill dated 25.10.2011 for ` 11,500 issued by 1st opposite party in respect of the sale of the tyre to the complainant. Exts.A3 to A3(e) are the cash bills for the wheel alignment charges given by the complainant to 1st opposite party and wheel alignment check list prepared by 1st opposite party.
11. On the other hand, the contention of the opposite parties is that, on the basis of the complaint of the complainant, the tyre was subjected to thorough examination by the technicians of 2nd opposite party and found that the defect of the tyre is ‘misalignment wear’ and it is not due to any manufacturing defect. The opposite parties have rendered prompt services to the complainant immediately after the complainant approached the opposite parties. Hence there is no deficiency in service on the part of opposite parties.
12. In order to prove the contentions of opposite parties, the Manager of 2nd opposite party filed proof affidavit and one document. On the basis of the proof affidavit, he was examined as DW1. The document produced is marked as Ext.B1 through PW1. Ext.B1 is the rejection letter issued to the complainant by the second opposite party.
13. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that there is no dispute between parties with regard to the sale and purchase of the tyre. The only dispute is with regard to the alleged defect of the tyre. According to the complainant, while running only 8500 kms., one side of the tyre bulged and that portion weared because of the manufacturing defect of the tyre. But the contention of the opposite parties is that the alleged defect is ‘misalignment wear’ and not due to any manufacturing defect. From Ext.A2 it is evident that complainant purchased the tyre from opposite parties on 25.10.2011. As per Ext.B1 rejection letter, the cause of failure is mentioned as ‘misalignment wear’. From Ext.A3 series documents it is seen that computerized wheel alignment and check up were done by the complainant to his vehicle through 1st opposite party on several occasions during the relevant period. From this it is clear that complainant used the vehicle with proper care and caution by correcting the wheel alignment periodically. So it is difficult to accept the contention of the opposite parties that the defect of the tyre is misalignment wear. Moreover, they have not adduced any cogent evidence to prove their contention.
14. At the same time, if the defect of the tyre occurred due to the wheel alignment defects as contended by the opposite parties, the 1st opposite party is responsible for it as it was done by the 1st opposite party. So the complainant is not responsible for the misalignment of the wheel. So it is clear that the complaint of the tyre is either due to the improper wheel alignment setting made by the 1st opposite party or due to the manufacturing defect. Hence we find that the opposite parties are jointly liable to the complainant for the complaint of the tyre and the non settlement of the complainant’s grievances by the opposite parties is a clear deficiency in service. It is also found that the complainant is running the vehicle for his livelihood. Hence this complaint is found maintainable and allowable. In the absence of any supporting evidence for substantiating the claim for compensation for the loss of earning of the complainant the prayer for ` 48,000 is not allowable as such.
15. In the result, this complaint is allowed, thereby the opposite parties are directed to replace the defective tyre with a new tyre of the same brand or to return ` 5,750 (Rupees Five thousand seven hundred and fifty only) collected by the 1st opposite party as per Ext.A2 receipt along with compensation of ` 2,500 (Rupees Two thousand five hundred only) and cost of ` 1,000 (Rupees One thousand only) within 15 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount with interest at the rate of 9% per annum from today till the realization of the whole amount.
Declared in the Open Forum on this the 23rd day of November, 2012.
(Sd/-)
K.P. Padmasree,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Sanakan
Exhibits marked on the side of the complainant:
DW1 : Ajith Krishnan. G
Witness examined on the side of the opposite parties:
A1 : Photocopy of the identity card issued by Kerala Motor
Transport Workers Welfare Fund Board in the name of the
complainant.
A2 : Cash bill dated 25.10.2011 for ` 11,500 issued by 1st
opposite party to the complainant.
A3 to A3(e) : Alignment bills and alignment reports.
Exhibits marked on the side of the opposite parties:
B1 : Rejection letter sent by the 2nd opposite party to the
complainant.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Sanakan. S, Santhinikethanam, Njalikandam,
Kaviyoor.P.O., Thiruvalla, Pathanamthitta.
(2) The Manager, ‘Tyre India’, M.C. Road,
Thiruvalla – 689 101.
(3) Manager, Apollo Tyres Ltd., No. 421 A & C Ward No. 1,
Edappally, Cochin – 680 024.
(4) The Stock File.
