SRI G.APPALA NAIDU, MEMBER.
O R D E R
This complaint is filed U/s.12 of Consumer Protection Act, 1986 seeking reliefs to pass an award in favour of the complainant and against the O.Ps directing them jointly and severally to pay a sum of Rs.33,500/- being the cost of the new tyres with interest @ 24% p.a., from 1-8-2013 till the date of payment, to pay a sum of Rs.20,000/- per month for the months of May to July of 2013, to pay a sum of Rs.7,835/- p.m., for the said 3 months being the installment amounts payable to the financier, to pay Rs.50,000/- as compensation for the mental agony, tension and physical stress and strain suffered by the complainant and to grant such other relief or reliefs which the Hon’ble Forum deems fit in the interest of justice on the following averments:
The complainant submits that he purchased a Tractor bearing chassis No.REOSQ2653 and Engine No.REOSO2653 manufactured by O.P.1, through O.P.2 who is the authorized dealer of O.P.1, on 22-8-2012 and the Registration No. being AP 35 W 4360 and he also purchased a trailor for the said tractor and the Registration No. being AP 35 W 4361. It is further submitted that the aforesaid tractor and trailor were purchased for earning livelihood for himself and his family by plying the same for the purpose of transporting agricultural goods / products etc., of the farmers who are living in his vicinity, on a day to day hire basis, as he has no other source of income. It is further submitted that the complainant took finance facility from Primary Agricultural Co.operative Society, Porali Agraharam, Datti Rajeru Mandal, Vizianagaram District for which he has to repay Rs.23,500/- for every 3 months, which fact is also well within the knowledge of O.Ps No.1 and 2.
Further, the O.Ps.No.1 and 2 are in arrangement with O.P.3 and fixed the tyres manufactured by it to the above said tractor which was sold along with tyres as one unit and thus he purchased the same from O.P.2. The complainant started using the said tractor and trailer for the purpose stated supra and used to earn a net income of Rs.20,000/- p.m., besides meeting the necessary expenses for their maintenance and to repay the above stated installments periodically and while it is so, the tyres of two rear wheels of the tractor, which were manufactured by O.P.3 started damaging rapidly within no time and the said information was passed on to O.P.2 and as per his suggestion the tractor was taken to branch office of O.P.2 at Bobbilli. Even though the concerned staff took necessary photos for the said tyres and advised to run the tractor with the same tyres for 250 hours and promised to take action within one month. After the said 250 hours “tractor run” too, as the tyres further devastatingly damaged, again approached O.P.2, who suggested to go to their branch showroom at Parvathipuram where the staff of branch show room took photos and promised to take necessary action but advised to come after five hundred hours of “tractor run”. Though he followed the same suggestion and brought the tractor to O.P.2, where the staff of 3rd O.P inspected both the rear tyres of the tractor on 16-5-2013 and given copy of the inspection report to the complainant but he being innocent and rustic person do not know the English version or even reading and writing telugu and however the inspection staff of O.P.3 and staff of O.P.2 promised him that new tyres will be replaced within 10 days but in vain. The complainant submits that all the O.Ps have colluded together with an oblique intention to postpone the replacement of tyres till the warranty period closes and thereby to avoid replacement permanently.
Thus they are negligent in providing service to the complainant from the inception itself and though they promised to replace with new tyres, all of them failed to do so. Further he could not ply the tractor since May 2013 because of the damaged tyres resulting in loosing his bread and butter and also his family besides liabilities such as monthly installment amounts payable to the financer. It is also submitted that the O.P.1 did not take necessary care at the time of fixing of tyres to the said tractor and the O.P.3 supplied defective manufacturing tyres to O.P.1 which in turn fixed to the above tractor and the O.P.2 did not take any care in pursuance of the above problem of the complainant though there is manufacturing defect in the said tyres. Thus all the acts of the O.Ps comes under unfair trade practice besides negligence and deficiency of service under the provisions of Consumer Protection Act.
In view of all the above the complainant got issued registered lawyer’s notice dt.5-7-2013 to all the O.Ps informing the above facts and requesting them to replace with new tyres in addition to paying damages and other reliefs but having received the same the 3rd O.P totally kept quite whereas the 2nd O.P got issued a reply dt.25-7-2013 by disowning his liability and thrown blame on the other parties and the O.P.1 initially got sent belated reply dt.4-9-2013 in order to make necessary enquiry into the matter and sent final reply dt.11-11-2013 with false and untenable contentions. Hence this complaint.
Counters filed by the O.Ps.1 to 3 denying the allegations leveled by the complainant in the complaint except those which are specifically admitted therein and puts the complainant to strict proof of the same.
The 1st O.P in their counter submitted that for effective maintenance and better performance of the tractor every customer had to carryout the mandatory recommended services at specified intervals, but the complainant did not produce any records as per the service schedule of the facts of the tractor in question so as to show that the complainant had regularly serviced the tractor though he was supposed to report the tractor at the recommended intervals as mentioned in the operator’s service book for carrying out the mandatory free services. In this case there were also instances of maintenance faults and operational faults noticed by the O.Ps during free servicing as well as on paid services when the complainant was advised to adhere to the instructions given in the owner’s service book and manual for smooth and better performance of the tractor. It is also submitted that as per clause 1 of the warranty applicable for the subject tractor, the warranty shall be limited to 24 months or 2000 hours whichever is earlier from the date of sale and subject to fulfillment of other terms and conditions of the warranty.
In this case, the O.P relies on relevant Clause 6 of the terms and conditions of the warranty which states that manufacturer warranty does not include tyres, tubes, battery, self starter, dynamo, alternator, fuel injection, equipment and other proprietory items or goods manufactured by other manufacturers and supplied by the company. Proprietary items are covered by the warranty (if any) given by the respective manufacturers. It is further submitted that buyers of the tractor shall be entitled to all such rights against such parties under their warranties in respect of such parts and their decision would final on the proprietary items as regards the claims of the buyers.
It is also submitted that the complainant filed this false complaint alleging manufacturing defects / problems in the tyres of the tractor without having produced any expert evidence / documentary proof in the form of evidence from a notified laboratory as per the provisions of Section 13 (1) ( c ) of the Consumer Protection Act, 1986. Therefore, the allegations of the complainant in respect of defects in the tyres of the tractor (in the absence of the expert report) miserably fails. Accordingly, the complaint deserves to be dimissed. Further the O.P relies on the judgment of Hon’ble National Commission in the case of Dr.K.Kumar, Advisor (Engineering) Maruthi Udyog Limited Vs Dr.A.S.Narayana Rao and another (I (2010) CPJ 19 (NC)) for the necessity of expert evidence to prove the submissions of manufacturing defects in the vehicle. In the absence of the above, the allegations of the complainant cannot be established and the instant complaint ought to be dismissed with costs.
The O.P also submitted that the present complaint ought to keep in mind the well established principle laid down by the Hon’ble Supreme Court in the case of Bharti Knitting Company Vs DHL Worldwide Express Courier (1996) 4 SCC 704, Wherein it was held that when the complainant signs the contract documents, he is bound by its terms and conditions and the onus would be on him to prove the terms and circumstances, in which he has signed the contract. Hence, the complaint is liable to be dismissed with costs even from point of view of the said Apex Court, since the same would be evident from clause 6 of the terms and conditions of the warranty, which states that manufacturer warranty does not include tyres, tubes, battery, electrical and fuel injection equipments or other proprietary articles & Goods supplied by the company. Hence the complaint is derbarred from claiming any compensation or damages from this O.P. Since there is no manufacturing defects in the goods purchased by the complainant or submitted any proof in support of the contention made by him and also there is no deficiency in service on the part of this O.P the complaint against this O.P is liable to be dismissed with costs.
The 2nd O.P filed counter denying the allegations leveled by the complainant in the complaint except those which are specifically admitted therein them and puts the complainant to strict proof of the same.
It is submitted by the 2nd O.P that the vehicle will not be delivered to any customer without being satisfied that the customer is very much understood about the maintenance of the vehicle and the tyres. Before delivery of the said vehicle the 2nd O.P’s staff informed each and everything to the complainant for good maintenance of the vehicle including the tyres. It is also submitted that the complainant never purchased a trailor from 2nd O.P and he might have purchased the same from outside and got fixed the same to the tractor. Soon after the complainant reported about the conditions of the tyres, the 2nd O.P took the photographs of the tyres and sent them to the manufacturers of the tyres along with the complaint made by the complainant and in turn the Goodyear India Limited sent the spot inspection report with remarks of “checked the tyres do not suffer from manufacturing defects and hence not replaceable”. They have also observed that the photographs clearly evidencing that the tires were having alternative lug wear while in application and such damages are not covered under warranty.
It is further submitted by the 2nd O.P that the inspection of the tyres was done by qualified technicians in the presence of the complainant who did not oppose or object anything. If the complainant found any defect in the tyres or in the inspection of the tyres which was done by qualified technicians in the presence of the complainant, the duty of the complainant should be to keep the tyres in the same condition and make the complaint to the concerned about the conditions of the tyres and initiate proceedings. But in this case, the complainant used the tyres for almost about the guaranteed period and hence there does not arise any deficiency in the quality of the tyres. It is also submitted that the wear and tare of the tyres mainly depends upon the usage of the vehicle such as loading the trailor with heavy tonnage than prescribed, the locking between the tractor and the trailor, the road on which the vehicle is being used. It is also clearly mentioned in page No.55 of the operator’s manual that the alternative lug will be damaged due to not checking the air, using the vehicle with heavy load on gravel roads with two wheel trailor, not maintaining the joint in between the tractor and trailor and not maintaining the air in the tyres as per the load in the trailor. It is also observed that the damage of the tyre will be more when the bearings of the wheel are not maintained properly.
It is further submitted by 2nd O.P that it is pertinent to note that the tyres were already used for nearly 900 hours and still they are in running condition, which might have covered the remaining 100 hours, which is guaranteed as per the manual. The complainant got mentioned falsely in the complaint that the vehicle was stopped functioning from May, 2013 due to the damage of the tyres in order to gain wrongfully.
Further the 2nd O.P is a dealer and his role is only to sell the vehicles, which were supplied by the 1st O.P with the tyres already fitted to the vehicle by the 1st O.P and it is for the manufacturers either to rectify or to replace if there is manufacturing defect. It is also submitted that the complainant did not produce the said tyres before this Hon’ble Forum for inspection, verification and expert opinion whether the tyres fell short run than the guaranteed 1000 hours or they ran successfully for 1000 hours. Since there are no bonafides or merits in the complaint the 2nd O.P pleads that same may be dismissed against this O.P with costs.
The 3rd O.P filed counter denying the allegations leveled by the complainant in the complaint except those which are specifically admitted therein them and puts the complainant to strict proof of the same.
It is submitted that on receipt of the complaint and as the matter of good will, gesture and reputation which the O.P.3 enjoys globally, they deputed one of its engineers to inspect the tyres alleged to have become defective but on thorough and diligent inspection, the Engineer vide his spot inspection report dt.16.5.2013, had observed that the defect of alternate lug wear is not a manufacturing defect and may have occurred due to the following reasons (1) Over inflation (2) continuous use of 2-wheel trailor (3) Long term usage for Haulage (4) Over loading of trailor. It is further submitted that the said engineer rightly refused the claim of the complainant as the answering O.P is governed by its own warranty policy extended to its esteemed customers and adheres strictly to the same. Had the tyres been suffering from manufacturing defect, if any, the O.P.3 would have entertained the claim of the complainant and would have gladly replaced the defective tyres in terms of its warranty policy on pro-rata basis.
However, the complainant could not substantiate the allegations by any evidence to show that the tyres suffered from manufacturing defect and if it is really so they would not have lasted even for a few hours. Also the complainant had voluntarily and without any coercion signed the spot Inspection report dt.16.5.2013 and accordingly the complainant is now precluded from re-agitating on the said issue.
In view of all the above factors, the 3rd O.P prays the Hon’ble Forum to dismiss the complaint against him with exemplary costs, since there is no deficiency or unfair trade practice on their part. Therefore, all the three O.Ps have denied the allegations leveled by the complainant. Since there is no deficiency of service or unfair trade practice on their part, they prayed the Hon’ble Forum to dismiss the complaint against them with exemplary costs.
Ex.A.1 to A.10 are marked on behalf of the complainant and Ex.B.1 to Ex.B.5 are marked on behalf of the O.Ps. Heard arguments. Posted for orders. The orders are as follows:
The counsel for both the parties advanced their arguments vehemently by reiterating what they have stated in the complaint, counter, evidence affidavits and brief written arguments respectively.
On Perusal of the material placed on record and the arguments advanced before this Forum it is evident that the said allegations with regard to the tyres is denied by all the 3 O.Ps individually by stating that the said tyres were already used for 900 hours and still they were in running condition and the remaining 100 hours also will be covered without any problem which is guaranteed as per the manual. The 1st O.P pleaded that they supplied the tractor to the 2nd O.P who is the dealer and it is on principal to principal basis but the said dealer is not their agent and is only an authorized dealer. The said dealer sold the tractor to the complainant after the complainant had thoroughly checked the tractor, its components and also the alleged tyres and after his full satisfaction only he purchased the tractor from the 2nd O.P.
Now the point for consideration is whether the complainant is entitled for the reliefs prayed for in the complaint?
The complainant came with an allegation that the tyres suffered from manufacturing defect. The expert engineer deputed by 3rd O.P inspected on 16-5-2013 and gave a report after thorough check-up that the tyres do not suffer from manufacturing defect and hence not replaceable.
Respondent No.3 is the manufacturer of the tyres and is a seperate entity which is not connected or related to O.P.1 or O.P.2 in any manner whatsoever. Hence, it is strongly pleaded that O.P.1 is not responsible for the acts and ations of O.P.2 and 3. The O.P.2 has strongly contended that he is only authorized dealer but not an agent of O.P.1 or O.P.3 and hence he pleads that he is not connected with any of the allegations leveled by the complainant. O.P.3 contends that he did his job by deputing a specialized engineer from his side to inspect the tyres and report the manufacturing defect if any who reported that there is no manufacturing defect and hence the alleged tyres are not replaced. It was also evident that the said vehicle was operated for 900 hours till June, 2013. Hence, there is no question of the vehicle being idle. Further, the complainant could not produce the tyres for sending the same to an appropriate laboratory for inspection and report but simply alleging that the said tyres suffers from manufacturing defects even after putting the vehicle for operation for more than 900 hours as per the guarantee period / manual and if this is the case, adverse interference can be drawn that there is no manufacturing defect with the tyres used by the complainant as it is the simple allegation without any basis / supportive evidence or any other documentary proof of his alleged contention.
In view of all the above discussions, the contention of the complainant that the tyres supplied by the 3rd O.P and attached to the tractor by the 1st O.P and sold by the 2nd O.P cannot be accepted and is straight away rejected.
In light of all the foregoing discussions, citations submitted by the 1st O.P and mentioned supra and the observations made above, we are of the well considered view that the complaint is deserved to be dismissed, since not supported by any documentary evidence or other proof to the satisfaction of this Forum.
In the result the complaint is dismissed, but under the circumstances without costs.
Dictated to the Typist, transcribed by her, corrected by me and pronounced by us in the open Forum, this the 25th day of February, 2015.
MEMBER PRESIDENT
C.C.No.5/ 2014
APPENDIX OF EVIDENCE
WITNESSES EXAMINE
For complainant:- For opposite parties:-
PW 1 RW1
DOCUMENTS MARKED
For Compainant:-
Ex.A-1 Operator’s Manual of OPs.1 and 2
Ex.A-2 Registered letter with postal receipt dt.7-5-2013
Ex.A-3 Spot inspection report dt.16-5-2013
Ex.A-4 Photos along with compact disc dt.23-5-2013
Ex.A-5 copy of Lawyer notice dt.5-7-2013
Ex.A-6 photos along with compact disc dt.23-7-2013.
Ex.A.7 Reply notice of the 2nd O.P.
Ex.A.8 Receipt dt.1-8-2013
Ex.A.9 Reply letter of the 1st O.P. dt.4-9-2013
Ex.A.10 Another reply of the 1st O.P. dt.11.11.2013.
For OP:-
Ex.B-1 Copy of manufacturer’s warranty (Neat copy)
Ex.B.2 Xerox copy of Job Card dt.15-8-2012.
Ex.B.3 Xerox copy of Job Card dt.28-8-2012.
Ex.B.4 Xerox copy of Job Card dt.28-6-2013.
Ex.B.5 Xerox copy of Operator’s Manual Instructions for tyres.
President
