SMT. RAVI SUSHA  : PRESIDENT

       Complainant has filed  this complaint   U/S 12 of Consumer Protection Act 1986 seeking to get an order directing  opposite parties to refund Rs.22500/- the  value of tyres together with compensation and cost of the proceedings of the  complaint.

   The brief facts of the case of the complainant are that the complainant has purchased two tyres with model 235-65-17 KJ range TL, manufactured by 2^nd OP, from the 1^st OP for an amount of Rs.22500/- on 19/12/2018 for his Mahendra XUV -500 vehicle and  as per the  purchase, the assurance given by  the staff of 1^st OP about its quality.  But after  plying  for 7000 km the tyres began to shape out and bulge out. At the time of  purchase they told the  complainant that he can use the tyres till 50,000 kms.    As it was during the warranty period  he went to  1^st OP, but they were not ready to replace the tyres.The complainant could understand that the OPs supplied  tyres having manufacturing defect and  the complainant has suffered a lot  due to the unfair trade practice of the OPs.  Hence this complaint.

    The opposite parties were duly served the notices.  OPs were entered appearance and filed written version.  The contentions of OPs are that the 1^st OP is an authorized dealer of 2^nd OP  and admitted the purchase of  disputed tyres from 1^st OP.  It is submitted that the alleged defective tyres have run only 7000kms and  by that time it started corroded and steels wires have come out , the  tyres in question were old and were of inferior quality are false and  denied.  It is submitted that when the complainant came to 1^st OP with the complaint, the  1^st OP told him that  to leave the tyres in their shop for sending the same to 2^nd OP for a detailed inspection by the service engineer of the 2^nd OP.   But , without acceding to  this request by the 1^st OP, the complainant took away the tyres with him and thereafter filed this complaint.  It is submitted that warranty coverage is given  only if the tyre report any manufacturing defect and the burden lies on the complainant to prove the same. The complainant is not entitled to get replacement for the tyre in question nor to get any compensation for the alleged loss.  Unless the tyres in question are inspected by a qualified expert.  2^nd OP is liable only if there is any manufacturing defect with the tyre unless manufacturing defect is established by an inspection by an expert, the allegation that the complainant suffered loss and injury because of the defect in the tyre is untenable and baseless.  The OPs are not liable for replacement of the tyres  or to make any compensation for the alleged loss.  Hence prayed for the  dismissal of  complaint.

     Both parties led their evidence.  Complainant has filed his affidavit evidence and the documents were marked as Exts.A1&A2.  After filing the complaint, complainant produced the two tyres in dispute before this commission  and were kept in the safe custody .  During pendency of the complaint, complainant has taken steps to appoint an expert for inspecting the subject tyres and for submitting report.  Thus expert was appointed and the expert after serving  notices  to  both parties inspected the tyres and submitted report.  Which was marked as Ext.C1.  The manager of 1^st OP filed his chief affidavit evidence.  After that the learned  counsel of both parties filed written argument notes.

   There is no dispute that the complainant has purchased the tyres in dispute from the 1^st OP, manufactured by 2^nd OP.  It is a fact that within the warranty period the tyres became damaged within the warranty period, it  was the duty of  the dealer and the manufacturer to show reasons  for the damage but they failed to  do so.  It was for the OPs to prove that the damage caused to the tyre was not due to any manufacturing defect instead of taking such a contention.  Here from the  initial stage of filing the complaint itself complainant has submitted both the  tyres before the  commission.  But OPs have not  taken any steps to inspect the tyres by  an expert to submit  report, for proving their contention.  On the other hand complainant has filed petition to appoint  an expert  which was allowed and the expert appointed  has filed Ext.C1 report.  In the Ext.C1 report, the expert  has specifically reported that the tyres were bulged and shaped out.  Further reported that the tyres were manufactured  by using low quality materials.  Expert has further noted that the tyres were manufactured  in June 2017.  Through Ext.C1, report complainant has established his allegation raised in the complaint.

   We have taken in to consideration of the facts of the case and the evidence available especially Ext.C1 report.  Ext.A1 is the cash bill dtd.19/12/2018 issued by 1^st OP for an amount of Rs.1500/- for  wheel alignment and  wheel balancing.  Ext.A2 is the tax invoice of the same day issued by 1^st OP for an amount of Rs.21000/- for  2 tyres.  So total amount  Rs.22500/-.

    From the whole evidence it is  evident that there is deficiency in service and unfair trade practice on the part of  OPs 1&2.  Since 1^st OP is the authorized dealer of the manufacturer(2^nd OP), the dealer cannot  wash off his hands  by selling tyres having manufacturing defect.  The privity of contract is between complainant  and OP.No1.  Hence both OPs are held liable for manufacturing defect of the tyres in question.  So complainant is entitled to get relief.

    In the result complaint is allowed.  Opposite parties 1&2 are directed to refund Rs.22500/- to the complainant.  Opposite parties are further directed to pay Rs.5000/- as compensation for the mental agony and Rs.2000/- towards cost of the complaint along with cost of the tyres.  Both opposite parties are jointly and severally liable to comply the order within one month after receiving the copy of  this order.  Failing which Rs.22500/- carries interest @9% per annum from the date of complaint till realization.  Complainant is at liberty to execute the order as per the provision  of Consumer Protection Act 2019.

Exts:

A1&A2- Tax invoice issued by  1^st OP Dt.19/12/2018

MO1&2- Tyres

PW1-Hashim-complainant

DW1-Shijil.M-1^st OP

Sd/                                                             Sd/                                                   Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                       /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR