KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

           VAZHUTHACAUDTHIRUVANANTHAPURAM

                                                  APPEAL NO.631/05

                               JUDGMENT DATED 16.7.2010

PRESENT

SRI.M.V.VISWANATHAN                        --  JUDICIAL MEMBER

SRI.M.K.ABDULLA SONA                             --  MEMBER

M/s.Impex Elias

A Partnership firm having its office

At 12/800. Manthara Road,                             --  APPELLANT

Cochin-682 002 reptd. by ots

Power of Attorney holder

Smt.Veroni.X.

    (By Adv.P.A.Ahamed & Ors.)

                    Vs.

M/s. New Bharat Tyres,

Kacheripadi, Ernakulam, Cochin-681 018,

Reptd. by its Managing Director

Mr.Mohan.                                                  --  RESPONDENT                        

  By Adv.Bechu Kurian  Thomas & Ors.)          

                                        JUDGMENT

SRI.M.K.ABDULLA SONA,MEMBER

          This appeal prefers from the order passed by  CDRF, Ernakulam in OP.No.273/04 dated 17^th June 2005.  This case related with a purchase of a Car Ultima XR tyres for Rs.10,400/-.  The complainant is the purchaser of the above said  tyres and opposite party is the dealer of the above mentioned tyres.  The appellants are the complainant who prefers this order from the dismissal of the complaint by the Forum below.   According to the complainant, the tyres and tools were fitted to the vehicle that there was a sound humming    while the vehicle was in motion.   The opposite party said that the above sound will stop after the vehicle runs above 500 kms.  The technicians of Honda City confirmed that the tyres were not fit  for the said car.  The same opinion was given bythe representatives of JK tyres.  The complainant therefore purchased 4 other tyres and tubes from another party.  While this petition to give a direction to the opposite party to take back the tyres and tools and refund Rs.7,200/- with interest at the rate of 18% and costs. 

          2. The opposite party entered appearance and filed a version contending as follows:  The complaint is not maintainable, the purchase of the tyres and tubes were for commercial purpose and that the complainant is not a consumer under the Consumer Protection Act.  Ultima XR tyres were sold on the specific demand made by the complainant.  The opposite party had not mislead the complainant.  The opposite party sold the tyres demanded by the complainant and so they cannot allege any deficiency in service.

          3. On the complaint the complainant was examined as PW1 and PW2 is the Assistant Area Manager of JK Tyres also examined the as PW2.  For the opposite parties DW1 was examined.  Ext.A1 to A8 were marked.  For the complainant Ext.B1 was marked for the opposite parties.  The Forum below concerned only one point.  Whether this complaint is maintainable under the provisions of the   Consumer Protection Act, and the Forum below taken a view that the tyres were purchased by the complainant for commercial purposes.  The complainant is not a consumer within the   meaning of the Consumer Protection Act and dismissed the complaint.  This appeal prefers from the above impugned order passed by the Forum below.

          4. On this day both appellant and respondent were represented for their learned counsels.  The counsel for the respondent argued of the appeal memorandum that the alleged tyres were purchased by the complainant after satisfied that this tyres are suitable for the passenger that it was purchased by the driver.  He was having the technical knowledge that this tyre is suitable for the Honda car.  But the counsel for the appellant vehemently argued that this tyre was manufactured for the purpose of sports car, not for ordinary car.  It was supplied by the opposite parties intentionally this is a deficiency in service and they are liable to pay the compensation after taken by the tyres.  He also mentioned that the complainant purchased other 4 tyres.  But this Commission is seeing that the order passed by the Forum below is only on the basis that this complaint is not coming under the purview of the Consumer Protection Act.  There is no expert was examined either by the complainant or by the opposite parties to give an opinion that this tyres are causing humming sound and not suitable for the ordinary cars and the Forum below did not discussed such any piece of evidence.  But the Forum below dismissed the complaint on the basis of the non-production of the expert panel and experts report by the complainant.  But this order is not accordance with the provisions of law and evidence.  It is not legally sustainable.  The complainant is an exporting company.  But the tyres were purchased by them not for resale or exchange with some other tyres or for any other trading or for business.  The complainant who purchased this tyres only for the use of thereon car.  Suppose the complainant is a firm who sent some documents by a courier but the document or packet was lost due to the negligence of the courier service for a company.  He can approach the consumer   or commission for the deficiency in service and unfair trade practice etc.   No doubt that he is a consumer.   So, this order passed by the Forum below is not legally sustainable.

5.  This Commission seeing that it is a fit case to set aside the order of the Forum below and sent back the case to the Forum below  for the fresh disposal  according to the provisions of the  Consumer Protection Act.  The Forum below forgot that the Consumer Act is a socially benefited legislation.

          In the result, the appeal is allowed and remitted back this case to the Forum below for the fresh disposal as early as possible after given amble opportunities to the complainant and the opposite parties to adduce their evidence.  Both parties are directed to suffer their respective costs.  The points of the appeal answered accordingly.

 M.K.ABDULLA SONA --  MEMBER

 M.V.VISWANATHAN --  JUDICIAL MEMBER

s/L