THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.

C.C. 139/2011

Dated this the 23^rd   day of July 2016

                     (Smt. Rose Jose, B.Sc, LLB.                                :  President)

                     Smt.Beena Joseph, M.A                                      : Member

                     Sri. Joseph Mathew, MA, LLB                           : Member

ORDER

Present: Beena Joseph, Member:

          This petition was filed on 01.04.2011. Alleging  that the tyres which bought from the opposite party were defective and demanding for replacement or cost of the tyre.

            The case of the complainant is that he had purchased two Good Year Tyres from the second opposite party on 13.12.2010 for Rs.13,014.45 for his Mercidez Benz Car. The above tyre was manufactured by 1^st opposite party.  The complainant here in, used the tyre for 1 1/2 months and it was noticed by him that tyres are bulged due to manufacturing defect.  Complainant preferred complaint and entrusted the tyre to the 2^nd opposite party, which kept there for the inspection of authorities from the 1^st opposite party.  The tyres were checked by 1^st opposite prty’s company Engineer on 02.02.2011 and he reported that the damages are due to side wall impact bruise and not because of manufacturing defect. The tyres are broken and bulged inside   and no damage seen outside.  The car was handled by the petitioner  himself with care and caution  and there is no chance for causing damage on his part.  Complainant contacted the 1^st OP to replace the tyre but there was no proper response on their side.  Hence the above complaint is filed to replace the tyre or return the value of the tyre with cost. 

             Notice were issued to both parties both of them appeared.

            OP1& OP2 filed separate version raising similar contentions.  Hence there is no need of separately narrating the version of opposite parties.  Their main contentions are the petition is not maintainable because no such tyre was purchased in the name of complainant and the same was not fitted to the Mercidez Benz.  The purchase of tyres were admitted by the both parties but they dispute the alleged manufacturing defect of the tyre.  Both of them states that the tyres has got damages due to side wall impact which must have occurred during the travel and there is no defect in tyres.  The alleged defect have occurred only due to the external object impact on the side walls of the tyres, the tyres were properly checked and examined by the Company representative and explain the reasons to the complainant  as well.  It was quite possible the tyres might have fallen into huge potholes or ditches at very high speed and must have been hit by an external object on the tyres.  So that the complainant is not entitled to get any relief.  There was no attempt on the  part of the complainant to prove the manufacturing defect of the tyre.  There is no cause of action to file the above petition.

Points to be considered.

1) Whether there is any consumer relationship exist between the parties?

2) Is there any deficiency of service or illegal trade practice adopted by OP?

3) If yes what are the reliefs.

            In this matter PW1&PW2 examined on the side of complainant. And Ext.A1 to A7 marked.  OP2 filed chief affidavit and examined as RW1. Ext.B1 marked.

Point No.1: The opposite party mainly contented that the petition is not maintainable as there is no consumer relationship existing between the parties.  On the very same time opposite party admitting sale of two tyres as per Ext.A1 to  vehicle No.MH 12EQ 310 Mercidez Benz.  The  contentions adopted by the opposite parties are contradicting to the documents issued by them.  Opposite party have no dispute with respect to Ext.A1.  More over they admit that complaint was checked and examined by companies engineer.  In this context it can be safely conclude that petitioner is a consumer of opposite parties and there exists consumer relationship between the parties.  Hence the above petition is maintainable before this Forum.

Point No.2:- Complainant has produced Ext.A1 to A7 documents to prove their case.  Ext. A1 is the bill of tyre purchased on 13.12.2010. Ext.A2 is the spot inspection report of OP1.  Ext.A3 is the letter issued by the petitioner to the 1^st OP Company.  Ext.A4 is the reply issued by OP1.  Ext.A5 is the letter issued to the OP2 by the complainant demanding the return of tyres dated on 18.06.2011.  Ext.A6 is the registered reply letter issued by the OP2.  Ext.A7 is the notice issued by the complainant Ext.B1 is the copy of delivery book page number 219.

            The Ext.A2  report shows that, the petitioners complaint was examined by the OP1’s Engineer and he rejected the claim stating that there was no manufacturing defect to the tyres.  And it can not be adjustable under the warranty clause.  Side wall impact bruise break observed on tyres.  The Ext.A2 shows that the reported defect of the tyre is tyre bulge.  Admittedly the Engineer stated that tyres were defective.  Now the only point remains whether it is due to the manufacturing defect or not.  The OP1’s Engineer itself states that there was sidewall impact bruise break observed on tyres.  The stand took by the opposite parties that this defect was caused  due to fall on huge potholes or ditches  at a very high speed and must have been hit by an external object on the tyres.  On examination of the tyre by the expert as per Ext.A2 he did not noticed any such external defect on the tyres, if there was a hit on the tyres by any external object, there would have been sufficient mark on the tyres.  No such mark were noticed by the OP’s expert in order to reject the claim.  Hence the defense can be considered as only a after thought.  It is came out in evidence that the tyres became complaint within  a short span of 45 days of purchase.  Usually the life expecting of the tyre is  20,000 to 30,000 kilometers.  The  kilometer covered by the vehicle was not recorded by the expert on Ext.A2. There was no report regarding the edge of the tyres.  Admittedly the damages were occurred inner side wall of the tyre, these aspects were not disputed by any of the parties. 

            More over the main thing in this matter  to be noted is two tyres simultaneously became defective and the defect is one and the same.  In this situation falling on the tyres in potholes and causing same defects to both tyres were quite impossible.  Usually no damage will be cause to a new tyre within 45 days of purchase without any manufacturing defect.

            In this matter complainant filed petition to produce tyres which entrusted with second opposite party before the Forum, wherein OP2 contended that the tyres were taken back by complainant’s driver as on 28.02.2011.  In order to  prove the same OP2 has produced Ext.B1 copy of the delivery book page No. 219.  where in it was shown that complainant had entrusted two tyres with OP2 as on 24.01.2011.  The above complaint was registered as complaint number 2401110031.  But on the same Ext.B1 shows that there was another complaint having same number dated 11.03.2011.  This creates doubts about the documents produced by OP2.  Hence the Ext.B1 can not be relied as a genuine document.  Moreover the 1^st date in Ext.B1 is 24.01.2011.  The second complaint registered on 13.01.2011 which itself cast doubt about the document.  So it can be held that the Ext.B1 is a fabricated one.  We have no other option to accept the B1 document.

            On the basis of the discussions made above it can be safely conclude that the above tyres were having manufacturing defect which ought to have been replaced  or refunded by the opposite parties.  In the  result the above petition  is allowed.

            Therefore we direct the OP1 & OP2 to pay Rs.13,014/- (Rupees Thirteen thousand and fourteen only) as the cost of the tyre and to pay Rs.2500/-(Rupees two thousand five hundred only) as cost of the proceedings.  The opposite parties are jointly and severally liable to pay the amount.  Comply the order with within 30 days from the date of receiving the copy of the order.

Dated this the  23^rd day of July 2016.

Date of filing: 01.04.2011.

SD/-MEMBER                                       SD/- PRESIDENT                    SD/- MEMBER

APPENDIX

Documents exhibited for the complainant:

A1. The bill of tyre purchased on 13.12.2010.

A2. Spot inspection report of opposite party No.1

A3. Letter issued by the petitioner to the 1^st opposite party’s Company

A4. Reply letter issued by 1^st opposite party

A5. letter issued by the complainant  to the second opposite party  dtd.18.06.2011.

A6. Registered reply letter issued by the second opposite party

A7. Notice issued by the complainant .

Documents exhibited for the opposite party:

B1. Copy of delivery book page No.219.

Witness examined for the complainant

PW1.P.K.Kammedkutty (Complainant)

PW2. Ali, Alvi Ali, Pathnapuram, Mukkath house, Keezhuparamb.PO

Witness examined for the opposite party:

RW1.. Kuriakkose( Managing Partner of Mukkom Tyres)

                                                                                                                                          Sd/-President

//True copy//

(Forwarded/By Order)

SENIOR SUPERINTENDENT