DATE OF FILING : 7.3.2014
BEFORE THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI
Dated this the   29th  day of  January,  2015
Present :
        SRI. S. GOPAKUMAR                PRESIDENT
        SMT. LIZAMMA ABRAHAM. K.        MEMBER
              SRI. BENNY. K.                    MEMBER
CC NO.95/2014
Between
Complainant                      :   T.J. Kuriakose,
                            Thannickal House,
                            Vazhithala P.O., Thodupuzha,
                            Idukki – 685 583.
                            (By Adv:  V.C. Sebastian)
And
Opposite Parties                                        :  1. Green Land Tyres,
                               Vattakkalam Buildings,
                               Pala Road, Thodupuzha,  Idukki.
                               (By Adv: K.M. Sanu)
                                 2.  The Manager,
                                Appollo Tyres Ltd.,
                               6th Floor, Cherupushpam Building,
                               Shanmugham Road,
                               Kochi – 682 031.
                              (By Adv:  Sibi Thomas)
O R D E R

SRI. S. GOPAKUMAR (PRESIDENT)
    
    The case of the complainant is as follows :  He is working as Armed Guard SBI.  On 9.11.2013, the complainant purchased 4 tyres for his  car measuring (185x70x14 Appollo Amezer XLTL) from the 1st opposite party,  Green Land Tyres, by paying Rs.15200/-.  On 12.11.2013 at 8 am, while he plying the car through Palakkuzha – Koothattukulam road, when he reached near Infant Jesus School, he found that the front left tyre of the car was burst out.  Immediately he informed the matter to the 1st opposite party and 1st opposite party directed him to bring the tyre to the shop.  On the same day itself at 8 pm, the complainant brought the tyre before the 1st opposite party and after thorough check up by the 1st opposite party, he said that the reason for damaging the tyre is due to careless driving of the complainant and not due to any  manufacturing  defect.   He is not having liability for such type of damages.  The  complainant  alleges that the problem stems from the defect in                                                     (cont....2)

-  2  -

manufacturing the tyre.  He used the tyre for plying only below 50 kms.  The complainant also stated that he is driving the vehicle for the last 20 years.  Hence the complainant approaches this Forum to seek a direction to replace the damaged tyre with new one or to refund Rs.3800/- as cost of the damaged tyres from the opposite party and for compensation at a tune of Rs.10000/- for the mental agony and inconvenience caused to him and award a cost of Rs.3000/- from the 1st opposite party as the expenses incurred for filing this complaint.  

    1st opposite party entered appearance and filed written version.  In the written version, he states that the manufacturer of the tyres is some other person.  He is a necessary party in the suit for fair and final decision of the complaint and he argued that the manufacturer of the alleged tyre is need to implead as additional opposite party.  

    As per the order of this Forum, on 2.4.2014 the complainant impleaded the Manager, Appollo Tyres Ltd as additional opposite party.  Additional opposite party also filed written version and stated the problem of the disputed tyre cannot be attributed to the additional opposite party and the same should be evidenced through expert lab test.  

    The complainant produced the alleged tyre before the Forum on 11.9.2014.  The additional opposite party filed a petition  before the Forum to direct the complainant to send the alleged tyres produced before the Forum, to appropriate laboratory to collect an expert opinion regarding the defect caused.  Sufficient time is given to the complainant to file objection to this petition.  No objection filed.  On 22.9.2014 the petition allowed.  But neither the complainant, nor the opposite party taken any effort to send the tyre to any appropriate laboratory to clarify the genuineness of their version.  

    The complainant was examined as PW1 and Ext.P1 was marked.  The alleged tyre was marked as MO.1.  From the defence side, opposite parties 1 and 2 filed written version and not adduced any evidence.  After closing evidence, both sides were argued in detail.  

    The points raised for consideration are following :
    Whether the alleged tyre was having any manufacturing defect or not ?
    Whether the complainant is entitled to replace the alleged tyre to a new one or refund the price of one tyre ?
    Compensation and costs.
                                                    (cont....3)

-  3  -
    The points 1 to 3 are considered together, for the sake of convenience.  According to the complainant, he is an experience man having 20 years experience in motor driving.  He plied the  vehicle in due care and alleged tyre was burst out only after running below 50 km and within the 3 days from the date of purchase.  In support to his contention, he produced Ext.P1 purchase bill and MO.1, the disputed tyre.  The same has been not challenged by the opposite parties while PW1 was in the box.  The learned counsel for the opposite parties argued that the damage caused due to careless driving of the car and not due to any manufacturing defect.  In  cross examination, he suggested a question that, “Manufacturing defect Aà ImcWw F¶p companyþbpsS expert ISbn h¨p ]cntim[n¨t¸mÄ   a\Ênembn F¶p  ]dbp¶p.(Q)    ISbn  h¨p  ]cntim[n¨n«nÃ.(A)”    Here it is very pertinent to note that the opposite parties admitted that the expert of the company examined the tyre and decided that it is not a manufacturing defect.  Then the question arises that what prevented the opposite parties to produce  witness and examine them in the box or to produce an expert opinion before the Forum to substantiate their  evidence and discharge from their liability.   From the defence side nobody examined and no evidence produced before the Forum, even repeated directions.  So it is bounded duty of the opposite party to clarify the doubt created against them.  In the written version filed by the 2nd  opposite party for and on behalf of the 1st opposite party, it is stated that “the  alleged tyre was not presented in front of the answering respondent for technical inspection to see the cause of  defect of the alleged tyre”.  This statement of opposite party and suggested question put by the opposite party in cross examination is self contradictory.  In the cross examination, opposite party admitted that expert examination was done.  Then that part is closed.

    Relying the petition filed by the opposite party to direct the complainant for sending the alleged tyre for expert opinion, it is pertinent to note that the burden of proof is upon the opposite parties, they cannot shift the burden to the complainant.  As a customer friendly company, it is their duty to prove the allegation levelled against them behind a shadow of doubt.  Here the opposite parties failed to prove their case without reason of doubt.  For the above said reason, we feel that the case of the complainant could not be thrown out by saying that the cause of the damage of the alleged tyre was not due to manufacturing defect.      Hence the possibility of manufacturing defect cannot be ruled out.  We are eternal  belief that the tyre in question was suffering from manufacturing defect.  Moreover, it is in the warranty period.  

                                            (cont....4)

-  4  -

    So point numbers 1 to 3 are decided in favour of the complainant.  Relying the decision of Delhi State Consumer Disputes Redressal Commission, in volume 4, 2004 CPJ. In  the decision, the DSCDRC held that development of cracks in the tyre within a period of 2 months demonstrate that the tyre in question has inherent manufacturing defect.

    Therefore the peculiar circumstance of the case, we feel that the opposite parties should  replace the alleged tyre  to a new one or refund the price of the alleged tyre as per the bill issued by the 1st opposite party.

    Hence the petition allowed.  The opposite parties are directed to replace the alleged tyre to a new one or refund the price of the alleged tyre as per Ext.P1.  The opposite parties are also directed to pay Rs.2000/-  as compensation and Rs.1000/- as cost of this petition to the complainant within 30 days of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.

            Pronounced in the Open Forum on this the  29th day of January, 2015
                                        Sd/-
                              SRI. S. GOPAKUMAR (PRESIDENT)
                                        Sd/-
                             SMT. LIZAMMA ABRAHAM. K. (MEMBER)
                                        Sd/-
                                        SRI. BENNY. K. (MEMBER)

APPENDIX
Depositions :
On the side of the Complainant :
PW1               -    Kuriakose T. J.
On the side of the Opposite Party :
Nil.
Exhibits :
On the side of the Complainant :
Ext.P1            -   Copy of the retail invoice.
MO.1             -    Disputed tyre.
On the side of the Opposite Party :
Nil.  
                                       Forwarded by Order,

                                       SENIOR SUPERINTENDENT