SMT. RAVI SUSHA  : PRESIDENT

         Complainant has filed this complaint  U/S 35 of Consumer Protection Act 2019  ,seeking to  get an order directing  the opposite parties to  replace  the 7 tyres of the vehicle Tipper bearing No.KL59/V 5789 of the  complainant together with Rs.4 lakhs towards compensation  for the mental agony, harassment ,alleging  negligence  on the part of opposite parties and cost of the complaint.

   Case of the  complainant is that he had purchased a vehicle  goods carrier (Tipper) having No.KL-59V-5789   chassis No.MAT454206L7B02078 Engine No.49TC41BZX803662 from the OPs. At the time of  delivery  of the vehicle  it was fitted with seven JK Tyres including the spare tyre. At the time of  handing  over the vehicle the meter reading was 800 Kms  as it was ran from company to dealer.  After running the first 1000 kms it is seen that some cracks  were developed on the  side wall (inner and outer side) of the  tyres including the spare tyre.  Immediately the complainant reported these defects to the 2^nd OP, 2^nd OP advised the complainant to wait some more time and if any damages seen again the , 2^nd OP  promised to supply new tyres  to  replacing  of the defective tyres.  Believing this , the complainant constrained to run the vehicle  and  unfortunately after running  few hundreds  of  kilometers the size of the above said cracks  increased more and hence the condition of the tyres become worst and  therefore finally on 6/8/2020 the  2^nd OP registered the complaint  of the complainant herein and  again agreed that they shall replace all the seven defective tyres with new.  On the request of 2^nd OP on the same day the  complainant handed over the stepney/spare tyre to them for the further checkup.  So far  2^nd OP has not returned the said spare tyre.  Even after the repeated demand from the complainant, the OPs failed to  replace the defective  tyres.  That  due to the deficiency of service  the complainant has not able to  ply the  vehicle for the last several months.  The defects occurred due to some manufacturing  defects of the  tyres and hence the OPs are jointly and severally  liable to replace the defective tyres with new tyres on free of cost.  Hence the complaint.

    After receiving notices OPs 1&2 filed separate versions stating their contentions.  1^st OP submitted that  this OP has unnecessarily been made a party to the proceedings that the relationship between  1^st & 2^nd OP  is of  principal to  principal   and is no way liable or responsible for the  alleged transactions.   It is further  submitted that  the grievance  of the complainant is that the tyes fitted to his vehicle suffered from manufacturing defect.  As per the conditions of warranty applicable to the vehicle , the tyres being a proprietary item, only the manufacturer  of such proprietary   would be liable. 1^st Op is in no way liable  for the same.  It is  submitted that the warranty offered on every  car/vehicle, manufactured by 1^st OP is subject to the terms and conditions of the warranty as contained the operator’s  service  book.  Further  submitted that the truck purchased by the complainant is of the highest quality and the complainant had  taken delivery of the  vehicle after being satisfied with its condition and its performance and the complainant had delivered the truck after carrying out the pre-delivery inspection .  It is further stated that 1^st OP is ISO TS/16949 certified, which is the international standard for quality systems for all the automotive companies and  this international standard specifies requirements for a  quality system where an organization needs to demonstrate its ability to consistently provide product meeting customer’s satisfaction and  applicable statutory and regulatory requirements.  In the present case, it is crystal clear that there has been no manufacturing defect in the goods purchased by the complainant  and there is no deficiency in service  on their part.  Hence  the complaint is liable to be dismissed with costs.

   2^nd OP has stated that as per the warranty policy of the vehicle, the warranty of the parts like tyre and battery are provided  by the manufacturers of the  respective parts.  Even though , the complainant had made specific allegations regarding the manufacturing defect of the tyre, he had failed to implead JK Tyres in the party array.  So the complaint is liable to be dismissed. It is submitted  that  the 2^nd OP is only an authorized dealer of the vehicles  and they have carried out their duty by providing  the after-sales  services promptly.  The 2^nd OP is selling the vehicles as the 1^st OP had  manufactured the same, without making  any allegations.  The quality check and performance assessment  are also done  by the manufacturer, while they are imparting  the accessories like tyre, battery etc which are manufactured  by other manufacturers.  The 1^st OP is unable to impart any role in the  decisions made by the  manufacturer on the selection made by the  manufacturer of the vehicle, in selecting the manufacturers of the products like tyre or battery etc,  The 2^nd OP has carried out the work  that has been  entrusted  as per the requirement and needs of the complainant, by strictly following guidelines  of the manufacturer and the warranty  policy of the manufacturer.  It is submitted that , after the first 1000kms, some cracks were developed on the side wall of the  tyres including the spare  tyre is specifically denied.  It is stated that , when the complainant had  submitted his alleged tyre damage issue,  the 2^nd OP had responded to the same positively and had even provided an onsite examination of the tyres  of the vehicle.  As per the  request of the complainant, the photographs of the tyre were taken and the same was transmitted to the JK Tyres for the evaluation of the same.  Since, no abnormalities and no indication of manufacturing defects were found on the examination, the warranty was rejected by the JK Tyres and the same was duly communicated with the complainant.  On the analysis of the  tyre, JK Tyres had communicated that, the marks found are attributed to external damages and not attributed to manufacturing  defect.   After the examination  of the tyre physically, the JK Tyres had affirmed their earlier  finding.  The same had been duly communicated to the complainant by the OPs, through his email id.  Further submitted that since, 2^nd OP had not offered any warranty  over  and above the warranty offered by the part manufacturer, the 2^nd OP is lacking any legal obligation to replace the tyre or reimburse the  amount of the tyre to the complainant.  The complainant is still driving the vehicle and earning profit out of it.  The  last service of the vehicle was availed on 21/1/2021 after covering 7499 kms.  The rejection of the warranty replacement demand by the JK Tyres is not due to any deficiency of service by the 2^nd OP.  The question of approval of the warranty replacement of the tyre is to be adjudicated among the  complainant and the JK Tyres , as per the warranty policy of the vehicle.  The 2^nd OP is a third party to the claim among  them.   The 2^nd OP had offered all the available measures to redress the grievances of the complainant.  In the above circumstances, it is prayed that this complaint is to be dismissed.

     While the case is pending complainant has taken steps to appoint  an expert commissioner to inspect  the tyres in question and  to file report regarding the condition of  tyres and to assess the  loss of damage caused to the complainant.  The expert commissioner Mr. Pramod P, Insurance surveyor inspected the vehicle  after giving due notices to all parties in the complaint and filed detailed report with photos.

   At the evidence stage complainant was examined as PW1 and got marked Exts.A1 to A3 and the expert commissioner was examined as PW2, marked his report as Exts.C1 and  photos as Ext.C2 series.  Both witness were cross-examined by the OPs.  On the side of OPs, customer service manager was examined as DW1 and  marked  warranty card  as Ext.B1.  The Branch  In charge(services) of 2^nd OP Mr.Prajith.P.P has filed his proof affidavit and has been examined as DW2 and marked warranty rejection certificate and customer complaint as Exts.B2&B3.  DW1 was cross-examined by the complainant.  After that the learned counsel of complainant has filed written  argument note. We have perused the available documents, expert   commissioner’s report,  pleadings of the parties and submission of learned counsel of complainant in the argument note.

   There is no dispute that the manufacturer of the vehicle is 1^st OP and 2^nd OP from whom, the  complainant purchased the vehicle in question.  Through Ext.A1 complainant has proved that the value of the vehicle  is Rs.13,25,000/- purchased on 29/2/2020.  Ext.A3 is the receipt of complaint registered by complainant  on 6/8/2020 to 1^st OP.

   One of the contention of OPs is that the complainant is not a consumer of OPs.  With regard to the said contention, through Ext.A1 complainant proved that he had purchased the subject  vehicle from  2^nd OP, manufactured by 1^st OP.  Further he has adduced evidence that the vehicle  is purchased for the livelihood of his son, who is the driver of the vehicle.  This point is  not  challenged by any of the OPs.  Hence from the above facts complainant becomes the  consumer of OPs.

  Complainant alleged that after running the first 1000 kms, the 6 tyres of the vehicle showed some cracks on its side wall including the 7^th tyre,  the spare tyre.  The said facts is proved through  Expert commissioner report  Ext.C1 .  The Expert commissioner reported on 30/7/2022 that the six tyres fitted in the vehicle were found broken and damaged badly and it is beyond repair and the same would require replacement.  The damaged stepney tyre was surrendered to the OP.  The expert reported that the cause of damage of all tyres were due to manufacturing  defects of the vehicle .  It is also  stated that the total assessment of loss as Rs.76950/- including cost of labour  as Rs.1000/-.  The expert is the insurance surveyor and  loss assessor who inspected the tyres after informing the  parties.  Though the  expert commissioner(PW2) has been subjected to cross-examined for  OPs 1&2 , OPs could not discard the points and opinion as observed by the expert commissioner in Ext.C1 report.  Hence Ext.C1 report can be taken as an authenticated document to  come to a conclusion  that all the tyres fitted in the vehicle  in question as well as the spare tyre are damaged and cause of damage was due to its manufacturing defect.  2^nd OP also admitted that the tyres became damaged.

   OPs 1&2 contended that the steppiney  tyre was verified and it has no manufacturing defect.  But OPs have not submitted  the inspection  report  as alleged by them, before us.  So their  said version  cannot be taken into account.  2^nd OP further contended that they are only dealers, the defective tyres if so was fitted by the manufacturer of the vehicle as well as the tyre company J.K Tyres  and  they sold the vehicle  as they received from the company.  According to 2^nd OP due to that, they cannot be held liable for the manufacturing defect of the  tyres.  The said contention of 2^nd OP also cannot be  accepted.  It is a fact that  2^nd OP is the authorized dealer of 1^st OP company.  So the dealer cannot  wash off their hand  after selling vehicle  having  defective  tyres.  Their duty is to  redress the grievance of their  customer as, the privity of contract is between the complainant and 2^nd OP.

   As far as 1^st OP is concerned, they are the manufacturer of the subjective vehicle.  Though there is no  defect alleged in the mechanical side and  body side of the vehicle, complainant has   complaint regarding  the tyres fitted in the vehicle.  It is the duty of manufacturer to sell the  vehicle having no defect including the additional  parts(tyre also) fitted in the vehicle.  There is no dispute that the defective tyres were not fitted in the vehicle  at the delivery time.  So,as the tyres having manufacturing defect as  reported  by the expert commissioner, 1^st OP has liability towards, the complainant.  Since complainant has no relationship with the manufacturer of the tyres in dispute and not paid any consideration to J.K Tyres, complainant does not become consumer of JK tyres.

    Hence, from the facts and circumstances of this case OPs 1&2 are held liable  as there is deficiency in service on the part of OPs 1&2.  Direction to replace the tyres does not affect actual relief of the complainant as there is 2 years elapsed from its purchase.

   In the result complaint is allowed in part.  Opposite parties 1&2 are directed to pay Rs.75950/- as assessed by the Expert commissioner to the complainant together with Rs.25,000/- towards compensation  for the mental agony and financial loss and Rs.5000/- towards cost of the proceedings of the case.  Opposite parties 1&2 are jointly and severally liable to comply the order within one month after receiving  the certified  copy of  this order.  Failing which Rs.75950+25,000/- carries interest @ 9% per annum from the date of order till realization .   Complainant is at liberty to execute the order as per provision in Consumer Protection Act 2019.

Exts:

A1- Tax invoice

A2-RC

A3-Copy of complaint dtd.6/8/2020

B1- Warranty terms and conditions

B2-Warranty rejection certificate issued by J.K. Tyres

B3- Consumer complaint  fact sheet issued by 2^nd OP

C1- Commission Reports

C2 series-photos

PW1-Tomy Alexander- complainant

PW2- Pramod.P- Expert commissioner

DW1- Srikumar.P- 1^st OP

DW2-Prajith.P.P- 2^nd OP

Sd/                                                   Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR