DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALAPPURAM<br /> <br /> (Present: Smt. C.S. Sulekha Beevi, President,<br /> Smt. E. Ayishakutty, Member)<br /> <br /> Date of filing: 13-5-2003<br /> <br /> Date of Order: 02-7-2008<br /> <br /> O.P..No.130/03<br /> <br /> <br /> P. Ahammed Kutty, S/o Ahammed Musliyar, ) Palliyalil House, Vellila (PO), Mankada, ) <br /> Malappuram District. ) Complainant <br /> )<br /> (By Adv. P.C. Girish, Malappuram) )<br /> <br /> Vs<br /> <br /> 1. Manager, M/s J.K. Industries Ltd., ) St. Marys Shopping Complex, ) LPS Road, Palarivattam, Cochin. ) ) <br /> (By Adv. C.K.M. Sulfikar Ali, Malappuram) ) ) Opposite parties <br /> 2. The Manager, A.C.C.Motors Pvt. Ltd., )<br /> Bye Pass Junction, Calicut Road, )<br /> Varangode, Malappuram. )<br /> )<br /> (By Adv. P. M. Ajay, Malappuram) )<br /> <br /> <br /> ORDER<br /> <br /> By Smt. C.S. Sulekha Beevi, President,<br /> <br /> 1. Facts in brief:-<br /> Complainant is aggrieved that the five tyres fitted on his lorry No.KL10-P 9104 are defective. The lorry was purchased for his livelihood. Second opposite party who is the dealer of Tata vehicles had assured 40,000 kms of defect free use for the tyres. 1st opposite party is the manufacturer of the tyres. The tyres became worn out by the time the vehicle covered 6300 kms. The service engineers of Telco checked the tyres and the matter was informed to opposite parties. Though complainant was assured that the tyres would be replaced, opposite parties have not replaced the defective tyres till date. The cost of each tyre is Rs.9,000/- and complainant has spend Rs.45,000/- for purchasing five tyres. The act of opposite parties supplying substandard tyres amounts to unfair trade practice. Hence this complaint praying for replacement of five tyres or refund of Rs.45,000/- along with interest, and for compensation of Rs.50,000/- along with costs.<br /> 2. Both opposite parties have filed separate version. First opposite party contested the maintainability of the complaint contending that complainant has not purchased the lorry for his livelihood. That complainant has three other lorries in his name and has employed many employees in his vehicles and is doing business to make profit. First opposite party admits the purchase of lorry by complainant from second opposite party. That immediately on receiving letter from second opposite party regarding the complaint of tyres Service Engineer Mr.Jayagopan visited the complainant. The tyres were thoroughly and carefully examined in the presence of complainant and his driver and found that there was no manufacturing defect for the tyres. This was intimated to complainant and his driver. First opposite party denies the allegation that all five tyres are defective. On 03-3-2003 complainant had reported the defect of two tyres Nos. B 002821 Dec.02 and B036670 Nov.02 only. In the complaint defect is alleged for five tyres. So the statements made in the entire complaint is unbelievable. That it is not correct to say that the service engineer opined that the tyres are defective and that it would be replaced immediately. Service engineer inspected the tyres on 13-3-03 and found that there was no manufacturing defect for the tyres. The size of tyres is 1000 x 20 16 PR and it was found that there was no usual wear and tear or manufacturing defect. Being rubber product the wear and tear will happen due to several reasons. At the time of inspection it was also noted that the construction of body of the lorry chassis was not in correct measurement. If the vehicle is fully loaded the actual load will exceed 25% than the permissible load and this will affect the tyres very badly. The tyres supplied are of merchantable quality. First opposite party has not committed any unfair trade practice and the complaint is liable to be dismissed with costs.<br /> 3. 2nd opposite party has filed version denying the complainant to be a consumer. That the vehicle was purchased for commercial purpose and not for his livelihood. It is admitted that complainant purchased the lorry bearing engine No.697D44MXZ116107. That second opposite party has sold the vehicle with a representation that the vehicle is defect free and there was no undertaking or guarantee as to the tyres fitted on the vehicle. The vehicle was purchased on 24-12-2002 and on 03-3-03 complainant reported damage of two tyres. Service Engineer of second opposite party examined the vehicle and found the vehicle to be defect free. So this opposite party immediately send a letter to the manufacturer of tyres M/s J.K. Industries. On receipt of letter service engineer of first opposite party came and examined the tyres and found that the tyres had no defect. The same was intimated to the complainant and his driver. The warranty given by the manufacturer of the vehicle TATA does not cover tyres. Hence second opposite party is an unnecessary party and is to be exonerated from any liability.<br /> 4. Evidence in this case consists of the affidavit filed by complainant and first opposite party. Ext.A1 marked on behalf of complainant. Second opposite party has not filed any affidavit or adduced any documentary evidence.<br /> Points for consideration:-<br /> (i) Whether complainant is a consumer?<br /> (ii) Whether opposite parties have committed any unfair trade practice?<br /> (iii) If so, reliefs and costs.<br /> 5. Point (i):-<br /> Both opposite parties disputes the complainant to be a consumer. According to opposite parties complainant has purchased the vehicle for commercial purpose and not for his livelihood. Complainant has specifically pleaded and affirmed that the lorry KL-10 P 9104 was purchased by him for his livelihood availing loan from ICICI bank. The evidence tendered by first opposite party through affidavit is that complainant has three other lorries in his name and that he has employed many persons and is doing business for making profit. No specific evidence as to the registration number of other lorries or exact place and nature of business of complainant if any are tendered by either of the opposite parties to prove this contention. Apart from the vague affirmation there is nothing to conclude that the lorry was purchased for commercial purpose. It is the specific case of complainant that the vehicle was purchased availing loan from ICICI bank in order to make a livelihood. We hold that complainant has purchased the lorry for his livelihood and complainant is therefore a consumer. Point found in favour of complainant.<br /> 6. Point (ii):-<br /> According to complainant all the five tyres of his vehicle have inherent manufacturing defects. It is contended that five tyres were worn out by the time the vehicle covered 6300 kms. It is also his case that on informing opposite parties the service engineer of first opposite party checked the tyres and intimated they will replace the tyres. One of the main grounds on which both opposite parties resist the complaint is that complainant had initially alleged defects of two tyres only. These tyres bearing Nos. B 002821 Dec. 02 and B 036670 Nov.02 were examined by the service engineers. But that in this present complaint complainant alleges defect of five tyres. Ext.A1 is the letter sent by second opposite party to Mr. Jayagopan who is the service engineer of first opposite party. Ext.A1 refers to defect of two tyres, bearing numbers as above. Although the complainant states that five tyres were defective their numbers are not specifically stated. Apart from the general affirmation that five tyres are defective there is no evidence to support this contention. Hence we are able to conclude that the contention of the complainant that five tyres are defective is unsustainable.<br /> 7. Complainant alleges that the tyres are having inherent manufacturing defect. According to opposite parties their service engineer Mr.P.Jayagopan checked the tyres and found to be free of defects. It is the burden of complaint to prove manufacturing defects if any. According to complainant the defective tyres are in the custody of second opposite party. In Ext.A1 second opposite party has stated that the customer/complainant has dismantled the defective tyres and left in the workshop of Second opposite party. Ext.A1 proves that the tyres are in the custody of second opposite party. Complainant had filed I.A.44/08 seeking direction against second opposite party to produce the tyres before the Forum. The petition was allowed. Even after several adjournments second opposite party failed to produce the tyres. On 02-6-08 counsel appearing for second opposite party reported no instructions on behalf of second opposite party. Thus second opposite party failed to produce the tyres.. The tyres could not be send for expert opinion. In such a case we have no hesitation to draw adverse inference and conclude that the twotyres noted in Ext.A1 have inherent manufacturing defects. Further the tyres became defective within three months of its' purchase. First opposite party is the manufacturer of the tyres. No steps have been taken by first opposite party to get the tyres from the custody of second opposite party and produce them before the Forum. We find the act of opposite parties in selling substandard goods amounts to unfair trade practice.<br /> 8. Point (iii):<br /> First opposite party being the manufacturer is liable to compensate the complainant for the defective tyres. According to complainant each tyre costs Rs.9,000/-. This is not disputed by either of the opposite parties. The grievance of the complainant was not promptly attended to by the traders even after bringing the defect to their notice. The irresponsible attitude of second opposite party in not producing the tyres before the Forum has also to be considered. We are of the view that complainant is entitled to refund of the price of two tyres being Rs.18,000/- along with interest @ 9% from the date of complaint till realisation.<br /> 9. In the result, complaint allowed. We order first opposite party to pay the complainant a sum of Rs.18,000/- (Rupees eighteen thousand only) together with interest @ 9% p.a from the date of complaint till realisation. We order second opposite party to pay Rs.1500/- (Rupees One thousand five hundred only) to the complainant being costs of this litigation.<br /> Dated this 2nd day of July, 2008.<br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1<br /> Ext.A1 : Letter dated, 03-3-03 send by second opposite party to<br /> Mr.P.Jayagopan, Service Engineer of first opposite party. <br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Nil<br /> <br /> <br /> <br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br />