For the Complainant:- Sri Ganeswar pattnaik, & Associates, Bhawanipatna.
For the O.P :-Sri Satyen Choudhury , Bhawanipatna, Kalahandi.
.
ORDER.
The present dispute arises out of the complaint petition filed by the above named complainant alleging deficiency in service against the afore said O.Ps for non replacement of 5 Nos. of tyres or refund price of the tyres. The brief facts of the case is summarized here under.
1. That the complainant had purchased one Mahindra XUV-500 FWD W8 SLVR vehicle from the O.P. No.1 vide invoice No. INV14A000845 Dt. 8.3.2014 financed by Canara Bank, Bhawanipatna. The warranty period of the tyres of the said vehicle is 5 years. But the tyres (Appolo tubeless) are found damage within running of 12,000 Kms within a period of 5 months. The complainant lodged complain before the O.P.NO.1 and as per the instruction one wheel was placed with the O.P.No.1 for its examination at Sambalpur. After one and half month the O.P. NO.1 unofficialy intimated the complainant that claim about damage when was rejected by the testing wing. Such act of reply of the O.P. No.1 is an unbecoming manner and based on arbitrary motive against the complainant. The complainant sent legal notice on Dt.5.6.2015 to the O.Ps for replacement of the damaged fives Nos. of tyres. But the O.Ps remained silent and did not take any steps to reply the pleader notice or to replaced the damaged tyres. For damaged tyres of the vehicle purchased from the O.Ps the complainant has sustained severe loss with mental agony for deficiency of service. Hence this case filed by the complainant before the forum for redressal of his grievance. The complainant prays the forum direct the O.Ps to replace 5 Nos. of Tyres or to pay price of the tyres. Further prays to pay Rs.50,000/- towards compensation and cost and such other relief as the hon’ble forum deems fit and proper for the best interest of justice.
2. On being noticed the O.P. appeared through their learned counsel and submitted that the averment made in para-1 of the complaint petition is true and need no comment. The O.Ps are not manufacture’s authorized agents, distributors or dealers of defective tyres. In the owners manual in Note-4 the components like tyres, battery etc. are declared as proprietary items and in case of any defect or complaint, the defective part should be referred to the respective manufacturers/authorized agents for warranty attention. Also as per the terms and conditions specified in Note – 12 of owner manual by the manufacture of Mahindra and Mahindra Ltd. O.Ps will not held responsible for the goods governed by special warranty policy stipulated by respective manufactures like Battery, Tyres, Starter motor, Altemator, Fuel injection equipment etc. Further the Mahindra & Mahindra declared in Note 12.6 that proprietary items are covered by the respective manufacturer’s warranty. The O.P. No.1 placed the complaint of the complainant before the manufacture i.e. Apollo Tyres Ltd and as per the instruction of the Apollo Tyres Ltd the O.P.No.1 sent the defective tyres for the examination to Sambalpur through authorized dealer Apollo Tyres, Bhawanipatna. The Apollo Tyres Ltd rejected the claim of the complainant and the O.Ps. are intimated the same to the complainant. The dispute raised by the complainant in the present complaint is manifestly outside the purview of the C.P.Act, 1986 and not maintainable. The complainant has no locus standi to initiate the present proceeding against the O.Ps. The case has no merit for non-joinder of necessary and proper party. The O.P. therefore prays the forum to dismiss the complaint petition against the O.Ps for the best interest of justice.
The O.Ps have appeared and filed their written version. Arguments from the the O.Ps and from the complainant heard. Perused the record, documents, filed by the parties.
The learned counsels for the O.Ps. and complainant vehemently advanced arguments touching the points both on the facts as well as on law.
FINDINGS.
3. The O.Ps. vehemently argued that the present complaint is not maintainable before the forum. We are of the opinion that the case is relating to defective goods which is covered under section 2(i)(f) of the C.P. Act. The C.P. Act which provides that “Defective means any fault, in imperfection or shortcoming in the quality, quantity, potency, purity are standard which is required to be maintained by or under any law for the time being in force”. After amendment made by the C.P. Act of 2002 wherein it is made clear that when a complainant is using the product of the O.Ps purchased from the O.P.No.2 is also coming within the definition of consumer and the service provided or attached to the said goods in the shape of warranty or guarantee is also available to the users. Admittedly the tyres fixed to the vehicle where damaged within the 5(five) months. This is proof of the poor quality of the tyres which were inevitably not of the standard quality as such the claim of the complainant is upheld.
It is held and reported in C.P.R. 1991 (1) page No. 436 where in the Hon’ble State C.D.R.Commission observed “what is then of equal significance are two aspects regarding the quality, quantity, potency, purity are standard maintained in the definition, firstly the same may either be required to be maintained by any law or rules for the time being in force. Secondly where there is no statutary mandate, then in the alternative these requirements are to be tested on the envil of what is claimed by the trader in any manner what-so-ever in relation to any goods”. In the instant case the O.Ps have not followed these guiding principles even though they have been committed to the complainant to render goods, service to him after purchasing the vehicle. The complainant claims that he replaced the defective 5(five) tyres by new one on payment of Rs.64,000/- @ Rs.12,800/- per tyre when the same were not replaced by O.Ps.
On perusal of the record it is revealed that the fact of the purchase of one Mahindra XUV-500 FWD W8 SLVR vehicle is not denied by the O.Ps. It is admitted position the complainant having purchased above goods for consideration having the warrantee for replacement/refund is entitled to him
It is admitted position of law that when a goods sold by the manufacturer has under gone servicing and even such servicing the same defects persist it is deemed to be a manufacturing defect. Hence the complainant is entitled to thoroughly check up of the above tyres and to remove the defects of the above tyres with fresh warrantee .
It is held and reported in CPJ 2005 (2) page No.781 the Hon’ble State Commission , Chandigarh observed the dealer is the person who in the market comes in direct contact with the consumer and he assures about the quality of goods sold and in case the consumer had problem with the tyres, the dealer was under an obligation to refer the matter to the manufacturer for necessary relief, which in the instant case was done.
Coming to the merits of the case the complainant had purchased the one Mahindra XUV-500 FWD W8 SLVR vehicle from the O.P No. 2 on payment of consideration an amount of Rs. 13,78,830/- on Dt. 08.03.2014 (copies of the retail invoice) marked as Annexure-I. On perusal of the record we observed the complainant after using some months found damage within running of 12,000 Kms within a period of 5 months. For rectification of defects handed over the same to the O.P. No.1 but some or other plea rejected the claim of the complainant So the complainant purchased 5 Nos. tyres from the market for daily running of the above vehicle.
On perusal of the record we observed that the complainant made several complaints with the O.Ps pointing out the defects which goes on to show that right from the very beginning the above tyres were not performing well and continued repeatedly to develop defects resulting in non-performance which was intimated by the complainant. Further we observed that on repeated complaints made by the complainant to the O.Ps neither the defects have been removed nor replaced with a new tyres. We hold at this stage if the above tyres were found defective within 5 months then it can be presumed that it has a manufacturing defect. If defective tyres were supplied a consumer is entitled to get refund of the price of the tyres or to be replaced with new tyres and also the consumer concerned is entitled and has a right to claim compensation and cost to meet the mental agony. In the instant case as it appears that the above vehicle which was purchased by the complainant had found defective with in 5 months and the O.Ps were unable to replace tyres during the warranty period.
The learned counsel for the O.Ps in their written argument argued in the owners manual in Note-4 the components like tyres, battery etc. are declared as proprietary items and in case of any defects or complaint the defective part should be referred to the respective manufacturers/authorized agents for warranty attention. Also as per the terms and conditions specified in Note-12 of owner manual by the manufacture of Mahindra & Mahindra Ltd will not held responsible for the goods governed by special warranty policy stipulated by respective manufactures like Battery, tyres , starter motor, alternator, fuel injection equipment etc. Further the O.P. declared in Note -12.6 that proprietary items are covered by the respective manufacturer’s warranty. The decision of the proprietary respective manufacturer is final and binding to all. In the warranty policy it is clearly mention that, in case of complaints, Mahindra Dealer/MADB/MASC should take up the matter with the respective manufacturer or their authorized agents, on which the final decision will be binding to all. According to the terms and condition of the warranty policy, the O.P.No.1 placed the complaint of the complainant before the manufacturer i.e. Apollo Tyres Ltd. through authorised dealer M/S. Kalahandi Tyres house, Bhawanipatna and sent to the defective tyres for the examination to M/S. Apollo Tyres Ltd., Sambalpur. The Apollo Tyres Ltd rejected the claim of the complainant and the O.Ps are intimated the same to the complainant.
The learned counsel for the O.Ps in para-3 of the written argument argued in the owners manual in clause-11 it is clearly mentioned that any disputes arise between the company and the purchaser on the liability of the company under this warranty shall be taken up in the civil court having jurisdiction in Greater Mumbai only, yet it can not over ride statutary provision under section-3 of the C.P. Act.
The O.Ps vehemently argued that the transfer of goods or sale is a contract and warranty is stipulation is a contract of sale with reference to goods subject to certain condition. But in the present case the manufacturer of tyres is M/S. Apollo Tyres Ltd and M/S Kalahandi tyre house, Bhawanipatna are their authorized dealer. The claim of the complainant is rejected by the Apollo Tyres Ltd. and the O.Ps are no roll to play in this case.
It appears that the complainant invested a substantial amount and purchased the above four wheelers with an expectation to have the effective benefit of use of the above vehicle. In this case the complainant was deprived of getting beneficial use of the vehicle and deprived of using the above goods for such a long time and the defects were not removed by the O.Ps who could know the defects from time to time from the complainant. In the instant case the O.Ps are liable.
The complainant had purchased the vehicle fitted with tyres and is in direct contact with the O.P. No.1 who is responsible for the warranty and guarantee of the vehicle and parts fitted in them in respect of who had been manufacturer of the defective parts. The vehicle had been sold fitted with several components and the manufacturer may also be more than one to whom the complainant is not concerned. Further if the tyres are under the guarantee of manufacturer of the tyres company the O.P. ought have supply the guarantee card of tyres and also separate bills for the tyres at the time of handing over the vehicle to the complainant to enable him to lodge his complaint directly to the manufacturer of tyres. The O.Ps when fitting the tyres of Appollo there exist a contract between O.P. and manufacturer of the tyres where the complainant is no way concerned. In case of complaint in respect of the tyres it is the duty and responsibilities of the O.Ps to get the same rectified and cannot direct the complainant to claim the same from the manufacturer of tyres directly. In our opinion the O.P. can not shark his responsibility by taking the plea that tyres are proprietary items when they are supplied and fitted with the vehicle and the cost of the vehicle taken by the O.P. is inclusive of the rate of the tyres.
In the above facts, circumstances & on perusal of the record, the complaint petition, documents, written argument and referring on above Citations there exists a strong “prima-facie” case in favor of the complainant.
Hence to meet the ends of justice, the following order is passed.
ORDER.
In the result with these observations, findings, discussion the complaint petition is allowed in part on contest against the O.Ps.
4. The O.Ps are ordered to replace the defective 5 Nos. of tyres with a new one of the above vehicle without charging any extra price or refund cost of the 5(five) Nos. of tyres to the complainant as on purchase date of the vehicle. The O.Ps are further ordered to pay Rs.1,000/- towards cost.
The O.Ps are ordered to comply the above directions within 60(sixty) days from the date of receipt of this order failing which the complainant is at liberty to file execution proceeding as laid down in the C.P.Act for realization of the same from the O.Ps.
Dictated and corrected by me
Pronounced on this 1 6th. Day of December, 2016
Member. Member. President
Documents relied upon:-
By the Complainant:-
1.Xerox copies of the retail invoice Dt.8.3.2014.
2.Xerox copies of sale certificate.
3.Legal notice Dt. 8.6.2015.
By the O.Ps:-
1.Xerox copies of the rejection letter Dt.16.3.2015 of Apollo tyres Ltd.
2. Warranty information and maintenance guide.
President
