Haryana

Karnal

533/2011

Ranbir Singh S/o Tara Chand - Complainant(s)

Versus

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

Sh. N.K. Zak

24 Jan 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                                 Complaint No.533 of 2011

                                                               Date of instt. 29.08.2011

                                                               Date of decision: 24.01.2017

 

Ranbir Singh son of Shri Tara Chand, resident of village Begampur, Tehsil Gharaunda, District Karnal.

                                                                                       ………….Complainant.       

                                                         Versus

 

1. N. Gupta Tyre Traders, Meerut Road, Karnal, through its prop./ partner.

2. Apollo Tyres, through its Regional Manager, Sector-32, Panipat, District Panipat.

                                         

                                                                                 ………..Opposite Parties.

 

                   Complaint u/s 12 of the Consumer Protection Act.          

 

Before                   Sh.K.C.Sharma……. President.

                   Sh. Anil Sharma……….Member.

                  

 

 Present       Shri N.K.Zak Advocate for complainant.

                   Opposite party no.1 exparte.

                   Shri Vineet Rathore Advocate for opposite party no.2.

 

ORDER:                    

 

                        This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986, on the averments that he had purchased four tyres of Apollo Make from opposite party no.1, vide bill no.17279 dated 24.11.2010, for Rs.38400/-, out of which one tyre was having manufacturing defect, due to which one side of the tyre came out the space when the same was used in he month of December, 2010. He approached opposite party no.1 and complained about the defect. The opposite party no.1 accepted that there was manufacturing defect and the tyre would be got replaced from opposite party no.2 within a short period. Therefore, the tyre was kept by opposite party no.1 for the purpose of replacement and the same is still lying with opposite party no.1, who has neither got replaced the same nor returned to him despite number of visits. He also approached opposite party no.2 for replacement of the defective tyre, but the opposite party no.2 also did not redress his grievance. Such act of the opposite parties amounted to deficiency in service, which caused him mental pain, agony and harassment apart from financial loss.

2.                Notice of the complaint was given to opposite parties. None put into appearance on behalf of opposite party no.1 despite service. Therefore, exparte proceedings were initiated against it, vide order dated 6.7.2015.

3.                Opposite party no.2 put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that the complaint is not maintainable against the opposite party no.2; that the complaint is premature; that the complainant has no locus standi and cause of action to file the complaint; that the complicated questions of law and facts are involved, which cannot be decided by this forum in summary manner; that this forum has no jurisdiction to entertain and decide the complaint and that the complaint has been filed with ulterior motive to extract undue benefit from the opposite party.

                   On merits, it has been submitted that opposite party no.1 is not the authorized dealer of opposite party no.2. The opposite party no.2 never supplied any tyre to opposite party no.1, therefore, opposite party no.2 has no knowledge regarding purchase of alleged tyres by the complainant from opposite party no.1. Furthermore, the alleged defective tyre was never produced before the opposite party no.2 for inspection of the same for technical expert of the company. Therefore, the complaint is premature. Even, the complainant never approached opposite party no.2, as alleged. The opposite party no.2 has no knowledge about any communication/transaction held between the complainant and opposite party no.1. The other allegations made in the complaint have also been denied.

3.                In evidence of the complainant, his affidavit Ex.C1 and copy of cash memo/bill Ex.C2 have been tendered.

4.                On the other hand, in evidence of the opposite parties, affidavit of  Deepak Rawat Ex.OP2/A  has only 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.                As per the case of the complainant he had purchased four tyres of Apollo make from opposite party no.1 on 24.11.2010 and out of the said tyres one tyre was defective. He approached opposite party no.1, who assured that the tyre would be got replaced from opposite party no.2 and for that purpose the tyre was kept by opposite party no.1, but thereafter neither the tyre was got replaced nor returned to him.

7.                The copy of cash memo/bill Ex.C2 shows that the complainant had purchased four tyres tubes of Apollo make from opposite party no.1 for Rs.38,400/-, vide bill dated 24.11.2010. In order to substantiate his allegations the complainant has filed his affidavit Ex.C1, according to which one tyre was defective and the same was given by him to opposite party no.1 for replacement, but neither the tyre was got replaced nor returned to him. His affidavit has gone completely unrebutted and unchallenged, therefore, there is no reason to disbelieve the same. The opposite party no.1 instead of contesting the claim of the complainant opted to be proceeded against exparte. Thus, it stands established that one of the tyres purchased by the complainant was defective and the same was given to opposite party no.1 and is still in its possession.

8.                Opposite party no.2 is the manufacturer of the tyres purchased by the complainant from opposite party no.1. Even if, the plea of the opposite party no.2 is accepted that opposite party no.1 was not its dealer, then also it would remain liable for replacement of the defective tyre. However, there is no evidence on record worth the name from which even an inference may be drawn that opposite party no.1 had sent the said tyre to opposite party no.2 for inspection and if found defective, for replacement or the complainant ever approached opposite party no.2 for replacement of the defective tyre. The opposite party no.2 had no knowledge regarding sale of the defective tyre to complainant by opposite party no.1. Consequently, the complainant had no cause of action against opposite party no.2, therefore, his complaint against opposite party no.2 is not maintainable.

9.                In view of the aforediscussed facts and circumstances, we arrive at the conclusion that the complainant had purchased four tyres from opposite party no.1 out of which one tyre was defective and the same was given by him to opposite party no.1 for replacement, who had not taken any step for replacement of the same and the tyre is still lying with it. Therefore, the opposite party no.1 cannot escape from its liability and it is liable to replace the defective tyre sold to complainant or refund the value thereof to the complainant.

10.              As a sequel to the foregoing reasons, we accept the present complaint and direct the opposite party no.1 to replace the defective tyre with new one of the same value. We further direct the opposite parties no.1 to  pay Rs.5500/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the date of receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 24.01.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member