M/s Gupta Tyre Traders. V/S Om Parkash Gupta S/o Chet Ram Gupta - Consumer Court Case

Haryana

Karnal

21/2012

Om Parkash Gupta S/o Chet Ram Gupta - Complainant(s)

Versus

M/s Gupta Tyre Traders. - Opp.Party(s)

Vishal Goel

08 Mar 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

Complaint No.21 of 2012

Date of instt.: 6.01.2012

Date of decision: 9.3.2016

Om Parkash Gupta Advocate son of Sh.Chet Ram Gupta resident of Chaura Bazar, Karnal.

. ……..Complainant.

Vs.

1.M/s Gupta Tyre Traders, Railway Road, Karnal.

2.Michelin India Tyres Pv t.Ltd. Unit 401-404, 4^th Floor, Copia Corporate Suites, Jasola, District Centre, New Delhi.

……… Opposite Parties.

Complaint u/s 12 of the Consumer

Protection Act.

Before Sh.K.C.Sharma……….President.

Sh.Anil Sharma…….Member.

Present:- Sh.Vishal Goel Advocate for the complainant.

Sh.C.P.Dudeja Advocate for the Opposite Party no.1.

Sh.Rohit Gupta Advocate for the Opposite Party no.2.

ORDER:

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 ( hereinafter referred to as the Act) on the averments that he purchased four tyres from Opposite Party No.1 on 8.1.2012 for his vehicle bearing registration No. HR-45-3705 @ Rs.6125/- each, vide invoice No.24730.The said tyres were manufactured by Opposite Party No.2. Warranty for replacement of the tyres was given for manufacturing defect. However, one tyre bulged/Galway due to manufacturing defect. A complaint was made to the Opposite Party no.1 to replace the tyre, but the Opposite Party replaced the same after charging Rs.3150/-, vide cash memo no.25034 dated 25.8.2011. The Opposite Parties were required to replace the tyre free of costs. As he was in dire need for his personal vehicle, he made payment to Opposite Party no.1. Thereafter, he sent complaint to Opposite Party no.2 on 25.8.20121. The Opposite Party no.2 responded that damage in the tyre was purely accidental and same was not covered under the warranty. Discount of 50% of the price of the tyre was given to him being esteemed customer. Then, he made complaint to Opposite Party no.1 on 13.10.2011, but the Opposite Party no.1 did not respond. The complaint was also sent to Mr.Gaurah Hans who sent reply through E-mail on 29.10.2011 alongwith the pictures of the tyre and the cause of damage to the tyre due to accident, though the Opposite Party no.2 admitted that the impact was not so severe as a result of which there was no thorough cut and side wall bulge occurred on the weak spot due to the pinch shock. The said reply proves that there was manufacturing defect in the tyre as there were some weak spots in the tyre. In this way, the Opposite Parties caused mental agony to him apart from financial loss.

2. Notice of the complaint was given to the Opposite Parties. The Opposite Party no.1 put into appearance and filed written statement disputing the claim of the complainant. Objections have been raised that the Opposite Party No.1 is only a dealer of Opposite Party no.2, therefore, the complaint is bad for joining it as party.

On merits, it has not been disputed that the complainant had purchased four tyres from Opposite Party no.1, which were manufactured by the Opposite Party no.2 and warranty was given for replacement of the tyres due to manufacturing defect. It has been submitted that the complainant approached the Opposite Party no.1 with the request for replacement of one tyre which according to the complainant bulged due to manufacturing defect. The Opposite Party no.1 approached the Opposite Party no.2 who sent Mr.Gaurav its representative/trained engineer for inspection of the above said tyre. Mr.Gaurav opined that defect in the said tyre was not due to manufacturing, but due to mishandling of the same by the complainant. However, keeping in view the reputation of the Opposite Party no.1 and the company as well as status of the complainant, the said tyre was replaced after receiving Rs.3150/- i.e. 50% of the cost of the tyre, though the complainant was not legally entitled to receive even 50% cost. The other allegations made in the complaint have been denied.

3. The Opposite Party no.2 filed separate written statement controverting the claim of the complainant. Objections have been raised that the complaint is gross abuse of the process of law and has been filed by the complainant with ulterior move to harass the Opposite Parties; that the complainant has not approached this Forum with clean hands; that allegations in the complaint are such that detailed examination and cross examination would be required, therefore, the complaint is not maintainable before this Forum and that the complainant has no cause of action to file the present complaint.

On merits, it has been averred that in August,the 2011 Opposite Party no.1 contacted Mr.Gaurav Singhal, technical Account Manager of Opposite Party no.2 for looking into grievance raised by the complainant. On 23.8.2011, the said Executive conducted the examination of the tyre and working condition under which the same was used. Upon investigation, it was found that tyre got damaged due to side wall cut which was in the category of accidental damaged caused by road hazard. After the said inspection, the claim of the complainant was rejected by the Opposite Party no.2 and he was duly informed that tyre got damaged due to pinching on the side wall between rim and road surface, which was purely an accidental damage and there was no manufacturing defect.

4. In evidence of the complainant, his affidavit Ex.C1 and documents Ex.C2 to Ex.C16 have been tendered.

5. On the other hand, in evidence of the Opposite Parties, affidavit of Sh.Narender Gupta proprietor of Opposite Party no.1 Ex.OP1/1, affidavit of Balaji R. Ex.OP2/A and documents Ex.OP2/B to Ex.OP2/D have been tendered.

5. We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned Counsel for the parties.

6. From the pleadings and evidence of the parties, it is established that the complainant had purchased four tyres from Opposite Party no.1 on 1.8.2011 and the said tyres were manufactured by Opposite Party no.2. One tyre bulged/Galway regarding which complaint was made to Opposite Party no.1, who discussed the matter with the Opposite Party no.2.The Opposite Party No.1 replaced the tyre, but charged the amount of Rs.3125/- from the complainant. The complainant alleged that there was manufacturing defect in the tyre, therefore, the same was to be replaced free of cost. On the other hand, the Opposite Parties have submitted that complaint of the complainant was got investigated and the technical engineer of the Opposite Party no.2 after inspection submitted report that there was no manufacturing defect in the tyre, rather the same was on account of mishandling by the complainant.

7. The learned counsel for the complainant laid stress on the contention that as per report of the technical engineer of Opposite Party nbo.2, the copy of which is Ex.C15, there was side wall cut in the tyre, which was in the category of accidental damage because of road hazard and there was no manufacturing defect, but at page no.4 of the report, it was clarified that impact was not so severe as a result of there was no thorough cut and the side wall bulge occurred on the weak spot due to pinching shock. Thus, it is clear from the report that there was weak spot in the tyre, which amounted to manufacturing defect.

8. To wriggle out of the aforesaid contention, the learned counsel for the Opposite Parties contended that it is clear from the report of technical engineer that in the tyre there was pinching, a symptom side wall cut, which was in the category of accidental damage caused by road hazard and there was no symptom of any manufacturing defect. The photographs of the tyre were also attached with the report indicating the damage to the rim caused due to pinching of the side wall of the tyre between rim and road surface. However, as a goodwill gesture the complainant was given discount of 50%of the cost and his tyre was replaced. It has further been argued that the complainant has not produced any evidence to prove that there was manufacturing defect in the tyre, therefore, his claim was rightly rejected by the Opposite Party no.2.

9. Thus the main question which falls for consideration in the present case is only as to whether there was manufacturing defect in the tyre. The tyre was inspected by the technical engineer of Opposite Party no.1 and he submitted his report. Therefore, there was no need for getting examined the tyre from some another expert. The report of technical engineer is the most material document and both the parties have relied upon the same. The photographs attached with the report show that there was damage to the rim caused due to pinching of the side wall of the tyre between rim and road surface and damage to the tyre was due to side wall “pinch shock”. In the report pinch shock has been described and causes of pinch shock have also been given as under:

What is Pinch Shock?

When your vehicle accidentally runs over a pot hole or a kerb, the tyre takes a severe shock to the tread area (area which is in contact with the road) resulting in the sidewall of the tyre to over flex beyond its limit. This over flexing of the tyre makes the side wall get pinched between the rim and the road surface.

This pinching of tyre sidewall breaks the casing plies inside the tyres. The casing plies are a series of radically laid textile cords which makes the skeletal structure of the tyre supporting the load on the tyre and encapsulating the pressurized air inside the tyre. This specific spot of the tyre with the internal injury which is only supported by the rubber construction becomes the weakest spot in the tyre. Therefore, the pressurized air inside the tyre pushes the damaged area from the surface level of the sidewall, thus resulting a bulge.

Depending upon the severity of the shock occurred by pinch, the damage in the inner lining can be observed. If the impact is very severe it might result in a through cut horizontally behind the perimeter of the rim. But in your case the impact was not so severe as a result there was no through cut and the sidewall bulge occurred on the weak spot due to the pinch shock.

10, No doubt in the report it has been mentioned that in case of the complainant, the impact was not so severe as a result of which there was no thorough cut and side wall bluge occurred on the weak spot due to punch shock, but the report read as a whole does not establish in any manner that there was already weak spot in the tyre due to some manufacturing defect. The weak spot could appear in the tyre with the internal injury as pinching of tyre side wall breaks the casing plies inside the tyre. The specific spot of the tyre in internal injury which is only supported by rubber construction becomes the weakest spot in the tyre. Therefore, pressurized air inside the tyre pushes the damaged area from surface level of the side wall resulting in a bulging. In the report it is not mentioned that weak spot already existed in the tyre and the same did not take place due to damage of the rim shock on account of pinching of the side wall of the tyre between rim and the road surface. Under such circumstances, we have no hesitation in concluding that report of technical engineer of Opposite Party no.2 relied upon by both the parties does not prove in any manner that there was manufacturing defect in the tyre and side wall bulge of the tyre was on account of such manufacturing defect.

12. As a sequel to the aforesaid discussion we do not find any merit in the present complaint. Consequently, the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced
dated:9.03.2016.

(K.C.Sharma)

President,

District Consumer Disputes

Redressal Forum, Karnal.

(Anil Sharma )

Member.