BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 31/07/2010

Date of Order : 31/08/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 426/2010

Between

 

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :

The complainant purchased an Apollo tyre for his Mini Tipper Lorry bearing Reg. No. KL-31 80 from the 2^nd opposite party on 23-04-2008 for Rs. 10,200/-. During a trip, the said tyre fixed in the rear side was damaged. The damage was the side wall cut. At the relevant time of incident, it was plied through a smooth road and hence there was no chance for piercing of any sharp object to cause the damage. The damage was caused before covering 1000 kms. from the date of purchase of it. Since the damage was not caused due to any impact of any sharp object, the defect was due to its manufacturing defect. Though a claim was raised on 16-10-2008, the 1^st opposite party rejected the claim by their letter dated 17-10-2008 stating that the failure was not due to any manufacturing defect. The reason given for rejection is not correct, because the tyre had not hit on any sharp object. The complainant is entitled to get refund of the price of the tyre ie. Rs. 10,200/- along with interest at the rate of 12% p.a. from the date of purchase together with cost of the proceedings. This complaint hence.

2. Version of the 1^st opposite party :

The vehicle of the complainant is being run for commercial purpose, with the help of a paid driver, so the complainant is not a consumer as defined in the Consumer Protection Act. There is no expert evidence to prove that the tyre in question was suffering from any manufacturing defect. The tyre was examined by technical service engineer of the opposite party and he did not find any manufacturing defect in the tyre. The 1^st opposite party is neither liable to replace the tyre nor to pay compensation and costs of the proceedings.

3. In spite of service of notice from this Forum, the 2^nd opposite party did not appear for their own reasons. No oral evidence was adduced by the complainant. Exts. A1 to A3 were marked on his side. The witness for the 1^st opposite party was examined as DW1. Heard the counsel for the contesting parties.

4. The points that arose for consideration are :-

1. Whether the complainant is a consumer?

2. Whether the complainant s entitled to get refund of the price of the disputed tyres?

3. Costs of the proceedings?

5. Point No. i. :- Apart from the averments in the version, nothing is on record to prove that the complainant is plying the vehicle for commercial purpose. So, we have no hesitation to hold that the complainant is a consumer and this complaint is maintainable in this Forum.

6. Point No. ii. :- It is not in dispute that the complainant had purchased 2 tyres from the 2^nd opposite party on 23-04-2008, which was manufactured by the 1^st opposite party at a price of Rs. 10,200/- evident from Ext. A1 cash bill. One of the tyres got damaged and the 1^st opposite party's service engineer examined the tyre on 17-10-2008 and stated that the cause of failure as “penetration of sharp object at side wall” evidenced by Ext. A3. DW1 the Associate Manager – Technical Service of the 1^st opposite party deposed that Ext. A3 had been prepared by one Shibu S. Rajan. The said Shibu who is said to have prepared Ext. A3 had not been examined as a witness. The counsel for the 1^st opposite party contended that there is no evidence to prove that the disputed tyre suffers from manufacturing defect. He relied on the decision rendered by the Hon'ble National Commission in N. Shivakesavulu Naidu Vs. Eicher Tractors Ltd. & Ors. (III (2008) CPJ 203 (NC). However, the Hon'ble National Commission in MRF Ltd. Vs. Sandipan Kishan Rao Deshmukh & Anr. (1 (2008) CPJ 165 (NC) (cited by the complainant) held in para 3 as follows :

“Submission advanced by Ms. Surekha Raman for the petitioner is that the tyre in question did not have manufacturing defect nor was that proved by respondent No. 1. Respondent No. 1 also did not produce the tyre before the District Forum. In support of further submission that damage to the tyre was due to concussion she has invited our attention to the report of Amar Dev Banerjee at page 28. In our view, non-production of tyre before the District Forum by respondent No.1 was not fatal as the report at page 28 was given by Mr. Banerjee on inspection thereof. Tyre in question was within warranty period at the time the damage was caused. We are of the opinion that having raised the plea in written version that damage to the tyre was due to concussion it was for the petitioner to have proved this plea. It is not in dispute that affidavit of Amar Dev Banerjee, Sales Executive of the petitioner company who examined the tyre was not filed by way of evidence to prove the report at page 28. In this backdrop, we do not find any illegality or jurisdictional error in the orders passed by Fora below calling for interference in revisional jurisdiction under Section 21 (b) of the Consumer Protection Act, 1986. Revision is, therefore, dismissed.”

7. In the instant case, admittedly the defect has been caused only when the vehicle ran below 1000 Kms. Moreover, the 1^st opposite party did not examine the person who actually examined the tyre in question and prepared Ext. A3 report. So, we have no hesitation to hold that the 1^st opposite party is liable to replace the disputed tyre with a new one of the same type.

8. Since, the primary grievance of the complainant has been met squarely the rule of law as such stands unchallenged which cannot be made a tool to unnecessary litigation costs of litigation are claimed more of as a challenge than a right usually which amounts to disrespect of law which cannot be sustained by any stretch of imagination even by any ark of law.

9. In the result, we allow the complaint in part and direct that the 1^st opposite party shall either replace the disputed tyre with a new one of the same price or refund its price according to the choice of the opposite party. In either of the event, the complainant shall return the tyre under dispute to the 1^st opposite party simultaneously.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 31^st day of August 2011.