BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 16/11/2010

Date of Order : 31/07/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 605/2010

Between

And

O R D E R

A. Rajesh, President.

1. Shortly stated, the case of the complainant is as follows :-

The complainant is an advocate, he purchased a Toyota Innova car from the 2^nd opposite party on 05-01-2007. The five tyres were manufactured by the 1^st opposite party. The vehicle has been regularly serviced with the 2^nd opposite party. When the car covered near to 10000 Kms. in August 2008, the complainant found a bulging on the side wall of one of the tyres and on enquiry the 2^nd opposite party advised the complainant to approach the 1^st opposite party, since it is a manufacturing defect. Accordingly, the complainant approached the 1^st opposite party and entrusted the tyre with them on 20-08-2008 to get the tyre replaced. But the 1^st opposite party neither replaced the tyre nor returned the same. On 15-09-2010, the complainant caused to issue a lawyer notice to the opposite parties demanding replacement of the tyre. The opposite parties replied stating untenable contentions. Thus, the complainant preferred this complaint seeking direction against the 1^st opposite party to refund Rs. 6,000/-, the price of the tyre with compensation of Rs. 10,000/- and costs of Rs. 5,000/-.

2. The version of the 1^st opposite party is as follows :-

The complaint is barred by limitation. The complainant or the 2^nd opposite party has not brought the allegedly damaged tyre for examination by the 1^st opposite party on 20-08-2008 or on any other date. As per the procedure, the 1^st opposite party, if any tyre is received either for inspection or for replacement valid receipt will be given to the customer. The complainant has not produced any evidence to prove the same. The complainant has no cause of action against the 2^nd opposite party.

3. The 2^nd opposite party field their version, however, they were deleted from the party array as per the order dated 28-04-2012 at the instance of the complainant. The complainant was examined as PW1 and Exts. A1 to A5 were marked on his side. The witness for the 1^st opposite party was examined as DW1 and Exts. B1 to B8 were marked on their side. Heard the complainant who appeared in person and the counsel for the 1^st opposite party.

4. The points that arose for consideration are as follows :-

1. Whether the complaint is barred by limitation?

2. Whether the complainant is entitled to get refund of the price of the tyre?

3. Whether the 1^st opposite party is liable to pay compensation and costs of the proceedings to the complainant?

5. Point No. i. :- According to the complainant, he entrusted one of the tyres of his car with the 1^st opposite party on 20-08-2008. It is stated that the 1^st opposite party assured replacement of the tyre within 3 months, even after the expiry of 3 months they did not do so. So, the cause of action for the complaint started to run from the expiry of 3 months that is on 20-11-2008. In that view of the matter, the complainant has preferred this complaint within 2 years from the date of cause of action provided under Section 24 A of the Consumer Protection Act, which falls within the limitation period.

6. Point No. ii. :- The complainant contended that as per the direction of the 2^nd opposite party, he approached the 1^st opposite party with the damaged tyre on 20-08-2008. According to the complainant, the 1^st opposite party received the same agreeing to replace the same within 3 months and even after the expiry of 3 months they backtracked from their promise. The 1^st opposite party vehemently contended that neither they received the tyre on 20-08-2008 nor they agreed to replace the same.

7. Ext. A2 is the lawyer notice dated 15-09-2010 issued by the complainant to the opposite parties in which he categorically stated his grievances and demanded to replace the tyre in dispute with a new one. The opposite parties duly sent Exts. A3 and A4 notices in reply. The 1^st opposite party issued Ext. A3 reply on 29-09-2010, in which they have not disputed the receipt of the tyre from the complainant instead they demanded a copy of the inspection report of the technical engineer. Seemingly, the reply of the 1^st opposite party amounts to clear admittance of receipt of the tyre from the complainant, especially so only thence can a report of their engineer be called for. So, the contention of the 1^st opposite party that they have not received the tyre from the complainant speaks against them ipso facto. Therefore, the complainant is entitled to get a brand new tyre instead of the defective one.

7. Point No. iii. :- Since, the primary grievance of the complainant having been met squarely and adequately compensation and costs of the proceedings are not called for.

8. In the result, we partly allow the complaint and direct that, the 1^st opposite party shall replace the disputed tyre with a new one to the satisfaction of the complainant.

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 July 20 12

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

=========