BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 30th of November 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.104/2010
(Admitted on 20.03.2010)
Mr.Raveendra Shetty,
So. Mr.Laxman Shetty,
Reporter of Vijaya Karnataka
Kannada Daily,
P.V.S. Centenary Building,
V.R.L. Near P.V.S. Circle,
Kodialbail, Mangalore. …….. COMPLAINANT
(Advocate for the Complainant: Sri.P. Ashok Ariga).
VERSUS
1. Managing Partner,
Wheel care,
Auto World Tower, N.H. 17,
Kottara Chowki, Mangalore 575 006.
(Opposite Party No.1: Exparte).
2. Prince David,
Sales Executive,
Bridgestone India Pvt. Ltd.,
D.No.1/9(1), R.N. Estate,
Near A.J. Hospital, Balebail,
Bejai, N.H. 17, Mangalore – 575 004.
3. Regional Head,
Bridgestone India Pvt. Ltd.,
No.12/1 C.V.R. Building,
Beside Sapthagiri Petrol Pump,
Next to Lalbagh, Double Road Gate,
Hosur Road, Bangalore – 560 027.
4. Managing Director,
Bridgestone India Pvt. Ltd.,
Plot No.12, Kheda Growth Centre,
Post Sagore – 454 774,
Pithampur, Dhar District,
Madhya Pradesh, India. ……. OPPOSITE PARTIES
(Advocate for the Opposite Party No.2, 3 & 4: Sri.S.P.Chengappa).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 and 13 of the Consumer Protection Act alleging defect in goods against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, he is the R.C. owner of the Matiz Car bearing Registration No.KA-19MA-6116 and he was using the said car for his personal and official use. It is stated that, on 23.10.2009, Complainant purchased new four Bridgestone brand tyres for his car from Opposite Party No.1 and paid a sum of Rs.8,645/- and all the four tyres are fixed with new tubes to his car. The Opposite Party No.1 who is the authorized dealer issued a receipt for the above said purchase of the tyres.
It is stated that, the Complainant was using his car only on tar and concrete road at Mangalore city and used to run 15 to 20 kms per day. On 10.12.2009 when the Complainant was driving his car in a concrete road near SDM Law College, he suddenly found problem in the right side front wheel of his car. Immediately he stopped the car and at that time he was found that his front right side new tyre of Bridgestone was punctured. Thereafter immediately he called mechanic and removed the wheel of the car and at that time he noticed two major cracks in the said tyre bearing No.PT 52300-5 and replaced the punctured tyre with stepini tyre. The expert mechanic checked the tyre and informed that the cracks in the tyre was due to the manufacturing defect.
It is further stated that, Complainant personally visited with the defective tyre to Opposite Party No.1, the Opposite Party informed the Complainant that the said tyre is not roadworthy and it cannot be repaired and advised the Complainant to go for new tyre and refused to replace the tyre.
The Complainant submits that, the above said tyre was used only for 48 days for about 800 kms and because of the defect in the tyre, the above said tyre found major cracks and contended that the Opposite Parties despite of noticing the above said defects they refused to replace the tyre which amounts to deficiency and hence filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to replace the defective tyre with new tyre or to pay the purchase price of that tyre and claimed Rs.5,000/- towards inconvenience, Rs.25,000/- claimed as damages and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 despite of serving notice neither appeared nor contested the case till this date. Hence we have proceeded exparte as against the Opposite Party No.1. The acknowledgement placed before the FORA marked as court document No.1.
Opposite Party No.2 to 4 appeared through their counsel filed common version denying the allegation that the tyre is defective. It is stated that, as per the warranty the replacement of the tyre would be offered only if the cause of its failure is attributable to faulty manufacturing, other damages will not be considered for the replacement. It is stated that, Opposite Party No.1 had given warranty to the Complainant against the manufacturing defect in the tyre. The authorized technical service engineer did not found any manufacturing defect in the complaint tyre as alleged by the Complainant, the damage on the tyre was pinch cut caused due to road hazard which was out of the Opposite Party No.2 to 4 i.e., the manufacturer’s warranty policy. Since there was no manufacturing fault in the complaint tyre and damage was due to driving of the vehicle without avoiding road hazards causing damage to the tyre, therefore the Complainant could not be offered replacement under the warranty terms and conditions of the Opposite Party No.2 to 4 and contended that there is no defect.
It is further stated that the tyre has been purchased in the name of VRL Limited, whereas, the complaint has been filed in the name of Ravindra Shetty, hence the complaint is not maintainable under the Consumer Protection Act in both counts. It is contended that the complaint is not maintainable and prayed for dismissal of the same.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the tyres purchased by him from the Opposite Party No.1 on 23.10.2009 proved to be defective?
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
-
- What order?
4. In support of the complaint, Mr.Raveendra Shetty (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C8 were marked for the Complainant as listed in the annexure. One Sri.Bilal Abdulla (RW1) Opposite Party No.3 filed counter affidavit and answered the interrogatories served on him. Opposite Parties produced 5 (five) documents as listed in the annexure. Complainant produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) to (iv): As per the final order.
Reasons
5. Point No. (i) to (iv):
In the instant case, the Complainant alleged that, on 23.10.2009 he purchased new four Bridgestone brand tyres for his car from the Opposite Party No.1 and all the four tyres are fixed with new tubes to his car. When the Complainant was driving his car on concrete road near SDM Law College of Dakshina Kannada District, he suddenly found problem in the right side front wheel of his car. Immediately he stopped the car and found that his front right side new tyre of Bridgestone was punctured and immediately he called the mechanic and removed the wheel of the car, at that time he noticed two major cracks in the said tyre. Immediately he replaced the punctured tyre with stepini tyre. Thereafter on 11.12.2009 Complainant contacted the Opposite Party No.1 and requested to check the tyre. After checking the tyre, the Opposite Party informed the Complainant that the said tyre is not roadworthy and it cannot be repaired and advised the Complainant to go for new tyre. The Complainant’s allegation is that, he used the said tyre only for 48 days for about 800 kms and requested the dealer to replace the tyre but the Opposite Parties refused to do the same. It is contended that, the above said tyre is not upto the standard and it is defective, hence came up with this complaint.
On the contrary, the Opposite Party No.2 to 4 who is the manufacturer of the Bridgestone tyre contended that, replacement for any complaint product would be offered only if the cause of its failure is attributable to faulty manufacturing. It is contended that, the authorized technical service engineer did not found any manufacturing defect in the complaint tyre as alleged by the Complainant in his complaint. On inspection, the damage on the tyre was pinch cut caused due to road hazard which was out of the Opposite Party No.2 to 4 i.e., the manufacturer’s warranty policy and contended that since there was no manufacturing fault in the complaint tyre and damage was due to driving of the vehicle without avoiding road hazards causing damage to the tyre, therefore the Complainant could not be offered replacement under the warranty terms.
In order to prove the allegation of the Complainant, has produced Ex C1 to C8 and the Opposite Parties also produced five (5) documents.
The 1st plea raised by the Opposite Parties is that, the tyre in question was purchased not in the name of the Complainant but in the name of VRL Limited and the invoice was issued/raised on VRL Limited. As far as this point is concerned, the Complainant in his evidence stated that, he is working as a press reporter for Vijaya Karnataka Kannada Daily Newspaper which comes under VRL Group and the said car was used for his personal and official use. We have observed that, when the tyres are purchased in the name of VRL since he is working in Vijaya Karnataka Daily which is owned previously by VRL Group. Since the vehicle is stands in the name of the Complainant, in other words, he is the RC owner of the above said vehicle and it is admitted by the Opposite Parties that the tyres purchased in the name of VRL is used by the Complainant to his vehicle. The warranty of the tyre will not be affected in any way. Hence the contention of the Opposite Parties in this regard has no weight.
As far as defect/deficiency of service is concerned, it is admitted by the Complainant as well as Opposite Parties that, the alleged tyre was admittedly purchased on 23.10.2009 from the Opposite Party No.1 who is the dealer of the Opposite Party No.2 to 4. It is also admitted that, the Opposite Parties on 11.12.2009 checked the complaint tyre by the Opposite Party No.1 but it is contended that the crack in the complaint tyre was caused not because of the poor quality of the tyre but it is stated that, the damage on the tyre was pinch cut caused due to road hazard.
The above contention of the Opposite Parties cannot be accepted because the tyre in question was admittedly purchased on 23.10.2009 from the dealer of the Opposite Party No.2 to 4 and the said tyre was hardly used for 800 kms which is not denied by the Opposite Parties. The contention of the Opposite Parties that, there was no manufacturing fault in the complaint tyre and damage was due to driving of the vehicle without avoiding road hazards causing damage to the tyre, therefore warranty is not applicable.
We do not admit with the Opposite Parties because in our opinion, mere attribution of the defects to driving habits and bad road condition is no consolation. We are of the considered opinion that, passing on the blame for abnormal wear and tear on poor road conditions particularly in this country is unacceptable and this has no relevancy at all. The main thrust of the Opposite Parties defence is that because of the road hazards the damage was caused. The Complainant who is a news reporter using the vehicle for his personal as well as official use has experience of driving and no prudent person will drive the car in such a way that the tyre will burst. The Opposite Parties cannot take advantage of this by throwing a bald allegation. We are not convinced with the explanation given by the Opposite Parties in the present case with regard to the road condition/hazards.
We further observed that, it is misconceived notion that unless and until a vehicle or any goods suffer from manufacturing defects, it cannot be declared as ‘defective’ goods or vehicle and, therefore, no order can be passed in terms of Section 14(1) of the Consumer Protection Act, 1986, either by directing the manufacturer to remove the defects or by replacing the goods with new goods of similar description which shall be free from any defects or return the price paid by him or to pay such amount as may be awarded as compensation for the loss or injury suffered due to the negligence of the Opposite Parties. It is significant to note that, the quality and standard of every goods, much less, a vehicle has to be tested strictly on the stern definition of ‘defect’ as provided in Section 2(1)(f) of the Act which means, “any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods. According to this definition, any kind of shortcoming, fault, imperfection or inadequacy in the quantity, nature and manner of performance renders the goods defective.
Similarly, in the instant case, the tyre was admittedly purchased on 23.10.2009 and within 800 kms the tyre was found cracks/pinch cut. It shows the standard and quality of the product manufactured by the Opposite Parties. However, the manufacturer should keep in mind that the road in our country is such and the product released by them should be suitable to the road condition of our country. The new tyres purchased by the Complainant found defect within the warranty period, hence we consider that the tyres supplied by the Opposite Parties is not upto the standard and suffers from imperfection or shortcoming on quality.
Generally, if the goods have manufacturing defect is to be borne by the manufacturer. But, that would not mean that the dealer is absolved from joint and several liabilities. As we know, the manufacturer not deals with the customer directly. The Dealer having received the amount, undertaken free service and rectify the defects during warranty does not escape liability towards the manufacturing defect found in the goods during the warranty period. As we know, the contract is through dealer, privity of contract is with him. To ensure execution expeditiously and immediately, if necessary, by making the payment to the Complainant initially and then it will be for the dealer to claim reimbursement from the manufacturer. Therefore, the dealer and the manufacturer both are jointly and severally liable for the defects found in the tyre.
In view of the above discussion, we are of the considered opinion that the tyres sold by the Opposite Party No.1 manufactured by the Opposite Party No.2 to 4 proved to be sub- standard quality and some sorts of defects in the tyre. Therefore, we hold that the Opposite Parties are jointly and severally directed to replace the new tyre free of cost by taking back the defective tyre from the Complainant. And also pay Rs.3,000/- as compensation for the personal inconvenience and mental agony and Rs.1,000/- ordered as cost of the litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Parties are jointly and severally hereby directed to replace the new tyre free of cost by taking back the defective tyre from the Complainant. Opposite Parties are further directed to pay Rs.3,000/- (Rupees three thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
On failure to comply the above order within the stipulated time as mentioned above, the Opposite Parties are hereby directed to pay interest at the rate of 10% p.a. on the compensation amount from the date of failure till the date of payment.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 12 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 30th day of November 2010.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Raveendra Shetty – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 23.12.2009: Lawyer’s notice sent to the Opposite Party No.1 to 4.
Ex C2 – : Receipt for sending registered notice.
Ex C3 – : Postal acknowledgements (4 in numbers).
Ex C4 – 19.01.2010: Reply notice sent by the Opposite Party No.1.
Ex C5 – 23.10.2009: Original Purchase Bill for a sum of Rs.8,645/-.
Ex C6 – 10.05.2010: Order form issued by M/s.Sundaram Industries Limited.
Ex C7 – : Notarized copy of the R.C.
Ex C8 – : Notarized copy of Motor vehicle taxation card.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Sri.Bilal Abdulla - Opposite Party No.3.
Documents produced on behalf of the Opposite Parties:
1) 23.10.2009: Copy of the bill for a sum of Rs.8,645/-.
2) Copy of the warranty policy.
3) Copy of ISO/T.S. 16949 certification.
4) Copy of Central Institute of Road Transport Certification.
5) Copy of damage mechanism for pinch cut.
Dated:30.11.2010 PRESIDENT
