BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

                                                                   Complaint No.404 of 2019

                                                                   Date of Inst. 10.09.2019

                                                                   Date of Decision: 26.11.2021

Prem Kumar Son of Sh. Des Raj, resident of Village Dhuyqur, Tehsil Nakodar, Distt. Jalandhar.

..........Complainant

Versus

M/s Chawla Tyres, Shop No.16 & 17, Shastri Market, Jalandhar.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:         Dr. Harveen Bhardwaj             (President)

 Smt. Jyotsna                           (Member)                                

Present:        Sh. Abdul Rasheed, Adv. Counsel for the Complainant.                             Mrs. Neeraj, Adv. Counsel for the OP.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein alleged that he is the owner of bus and on 27.06.2019, he visited to OP shop i.e. M/s Chawla Tyres for the purchase of tyres of his bus and he purchased two new tyres, vide tax invoice No.T/19-20/962, discretion of goods 75016 Tyres LCV BRL FR TTF on 27.06.2019 for a sum of Rs.14,300/- in cash. At the time of purchasing the said tyres, the OP gave the assurance to the complainant that the quality of the tyre is good and no default would arise in future, if any default occurred within one year as a guarantee/warrantee, OP shall be liable for return and replace the tyres, but the complainant, after one week from the date of purchase the said tyres, felt some fault in the tyres and complainant came to the shop of OP and told about the default and asked to replace the tyres under guarantee, after that the OP on 07.07.2019 took the tyre in his possession but till today no tyre was returned by way of replacing to the complainant. The complainant has been going to the shop of OP from time to time, but the OP totally failed to admit the genuine request of the complainant and refused and lingers on the matter on one pretext or the other. The act and conduct of the OP created mental/physical as well as financial harassment and as such, the present complaint filed with the prayer that the complaint of the complainant may be accepted and OP be directed to pay a compensation of Rs.1,00,000/- on account of harassment for the loss of business and further OP be directed to pay litigation expenses.

2.                Notice of the complaint was given to the OP, who filed written reply, whereby contested the complaint by taking preliminary objections that the       the present complaint is not maintainable under the provision of Consumer Protection Act, as such, the same is liable to be dismissed. That no cause of action has arisen to the complainant to file the present complaint against the answering OP. Even otherwise, the complainant has got no locus-standi to file the present complaint against the answering OP. It is further averred that Sh. Harjinder Singh has purchased the said tyres from the answering OP and not the complainant/Prem Kumar, as such, the said Prem Kumar is not competent to file the present complaint qua the tyres in question. That the present complaint is bad for non-joinder of necessary party. The manufacturer company of the tyre has not been impleaded as party to the present complaint. It is further averred that the complainant has not come to the Court with clean hands. The true facts of the case are that in the present complaint it is simple and crystal clear that manufacturer is wholly and solely responsible for their product. The answering OP is only selling the company product with original bill as issued to the customer. The answering OP had discharged his liability and responsibilities by sending the said tyres to the company’s office at their own charges for their decision, which is final for customer complaint and in the present case Birla Company is admitting that the tyres are original and are not in their warranty policy as no defect found in their claim rejection letter of both the tyres, tubes, flaps. It is further averred that the customer has used the tyres by overinflating tyres and using carelessly without alignment. It is further averred that the answering OP has been just harassed by the complainant without any cause on the part of the OP. The OP also reserves his right to file a case of harassment against the complainant. On merits, it is admitted that the OP is running the shop in the name and style of M/s Chawla Tyres and it is also admitted that the complainant purchased two tyres from the OP, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder not filed by the complainant.

4.                In order to prove their respective versions, both the parties produced on the file their respective documents.

5.                We have heard the learned counsel for the respective parties and also gone through the case file as well as written arguments submitted by counsel for the complainant very minutely.

6.                The complainant has filed the present complaint on the ground he purchased two new bus tyres as per the invoice Ex.C-1 for a sum of Rs.14,300/- and there was a one year guarantee/warranty for the above said tyres. It has been alleged that after one week of the purchase of the tyres, the complainant felt some fault and asked the OPs to replace the tyres as the same falls within the period of guarantee/warranty. The OPs took tyres in their possession, but till date the tyres has not been replaced nor returned. It has been alleged by the complainant that Prem Kumar and Harjinder Singh are the two brothers and this fact has been admitted by the OPs also that Harjinder Singh purchased tyres from the OPs. The OPs have also admitted that the tyres are still in their possession and manufacturing company has not returned the same till today.          

7.                The contention of the OP is that the complaint is not maintainable as Prem Kumar never purchased any tyre from the OPs. They have also relied upon the claim rejection advice Ex.OP-1 to Ex.OP-6 and submitted that there is no manufacturing defect in the tyres rather the same have fault due to over filling of air in the tyres. The OPs have also requested to dismiss the complaint on the ground of non-joinder of necessary parties and Prem Kumar being not consumer.

8.                Perusal of Ex.C-1 shows that two tyres were sold by M/s Chawla Tyres on 27.06.2019 and in Ex.C-1, no name of any purchaser has been mentioned. The complainant himself has admitted in his written submissions that the OP has admitted that Harjinder Singh has purchased the tyres from the OPs. Perusal of the written reply also show that it has specifically been mentioned by the OP that Harjinder Singh has purchased the tyres from the OPs and not the complainant Prem Kumar. This fact has been admitted by the complainant himself that the tyres were purchased by Harjinder Singh. Merely mentioning that Harjinder Singh and Prem Kumar are brothers does not make Prem Kumar a consumer. No document has been filed by the complainant to show that both Harjinder Singh and Prem Kumar are running any partnership firm or are connected with each other in the usage of the tyres. Even the documents Ex.OP-1 to Ex.OP-6 also shows that the name of the customer has been mentioned as Harjinder Singh on all the Claim Rejection Advices and in the above Advices the name of Prem Kumar has no where been mentioned. Thus, Prem Kumar is not the consumer.

9.                The contention of the OP that the complaint is bad for non-joinder of necessary parties is concerned. It is not disputed that the tyres were purchased from M/s Chawla Tyres, Jalandhar as has been admitted by the complainant also. The complainant in his written submissions in Para No.3 (d) submitted that due to the act of OP and manufacturing company, the complainant has suffered mental, physical as well as financial harassment. He has further submitted that the complainant has also suffered loss of his work by way of act of the OP and manufacturing company who is not returning the tyres to the complainant and not issued any notice regarding no default found in the tyres to the complainant. He has further prayed that the complaint of the complainant is legally maintainable against the OP and manufacturing company and he is liable to claim compensation from the OP and manufacturing company, but perusal of the complaint shows that the complainant has not made the manufacturing company as a party. Even the Claim Rejection Advices Ex.OP-1 to Ex.OP-6 show that the name of the agent of Birla Tyres, purchased by the complainant has been mentioned but the complainant has not made the manufacturing company as a party when he himself admitted that both Chawla Tyres and the manufacturing company are liable for the claim and the tyres are still in possession of the manufacturing company. Manufacturing Company has not been given any opportunity of being heard and in this way, the complaint is bad for non-joinder of necessary parties.

10.              Even on merits, the advices Ex.OP-1 to Ex.OP-6 show that the consumer/customer Harjinder Singh has been informed about the claim rejection advices of the complainant on the ground that there is no manufacturing defect in the tyres. Perusal of Ex.C-1 also shows that there is a hand written note on it that there is five years technical fault guaranty on the product, but no technical fault was found as per documents relied upon by the OP.

11.              In the light of above detailed discussion, we find that the complaint is bad for non-joinder of necessary parties and is not maintainable, the complainant being not consumer. We also find that there is no unfair trade practice or deficiency in service on the part of the OP. Thus, the complaint of the complainant is without merits and accordingly, the same is dismissed with no order of cost. However, since the tyres are still in possession of the manufacturing company, Harjinder Singh is the purchaser and consumer, so he can avail the remedy available to him to get his tyres back and for other reliefs. This complaint could not be decided within stipulated time frame due to rush of work.

12.              Copies of the order be sent to the parties, as permissible, under the rules. File be indexed and consigned to the record room after due compliance.                                                                                                       

Dated                             Jyotsna                         Dr. Harveen Bhardwaj     

26.11.2021                    Member                       President