Complainant/s:              Srikanth, S/o Lakshman Angadi,

                                        Age: 38 Years, Occ; Agriculture, R/o

                                        Balaji Nagar, papanashi Tanda, Taluk and 

                                                District: Gadag.

                                                (Rep. by Sri.B.V. Neerloti, Advocate)   

V/s

JUDGEMENT

JUDGEMENT DELIVERED BY SRI. RAJU N. METRI, MEMBER

The complainant has filed the complaint u/Sec.35 of the C.P.Act, 2019 for compensation of Rs.1,20,000/- with interest @ 18% p.a, Rs.50,000/- towards mental agony and cost.

The brief facts of the complaint are as under:

         2.  The Complainant has purchased Tipper vehicle bearing Registration No.KA-26 B-2365 for a sum of Rs.30,50,800/- in the month of December-2020 from OP No.1.  OP No.2 supplied six tyres to OP No.1.   OP No.1 assured that, they purchased good quality tyres from OP No.2/CEAT Limited and durability of the said tyres will be about 35000 KM to 37000 KM.  After purchase within three months, when the vehicle ran for about 13000 KM, all the tyres were damaged.  When complainant brought the same to the notice of OP No.1 in turn informed to OP No.2, after examination, OP No.2 issued an endorsement on 16.03.2021 stating that, there is no manufacturing defect in the tyres and informed that, tyres may be collected from OP No.1 within twenty one days.  It is the case of the complainant that, OPs supplied low quality tyres and there is a manufacturing defect, as well as deficiency in service.  Complainant got issued legal notice through Advocate on 05.04.2021 for replacement of new tyres or to pay the value of tyres but, they did not heed to the request and kept mum.  Hence, filed this complaint.

          3.       In pursuance of service of notice, OP No.1 appeared through counsel and filed written version with document.  OP No.2 submitted written version through post.

          The brief facts of the written version filed by OP No.1 are as under:

          OP No.1 denied the various allegations in the complaint and contended that, there is no deficiency in service on their part.  The complainant is a big businessman owning Benz Tipper and there is no consumer dispute existing in the complaint against OP No.1.  This OP is not a necessary party at all as going by warranty terms and conditions, the answering OP No.1 is not a necessary party.  All proprietary items manufactured by different manufactures and if any defect arose for that, those are independently liable.  On the request of the complainant, immediately asked him to bring the alleged defective tyres.  On bringing them and on inspection it was found that, the tyres have suffered neglected tread cuts, spotty wear etc.  The OP No.1 has discharged its obligation and has helped the complainant to have his grievance if any, redressed by sending information, the alleged defective tyres to the OP No.2.  The complainant has deliberately suppressed the true facts.  OP No.1 has issued operators manual mentioned at clause(1) General in terms of warranty column at clause(6) that, ‘ proprietary parts not manufactured by DICV but supplied by other manufactures such as tyres, tubes etc., shall be governed by the terms and conditions of warranty offered by the respective manufacturers.  In case of manufacturing defects, the answer of OP No.1 cannot be made liable to claim based on alleged manufacturing defects.  Hence, prays to for dismiss the complaint.

          The brief facts of the written version filed by OP No.2 are as under:

          OP No.2 denied the allegations and contended that, there is no manufacturing defect in the tyres.  This OP is not liable to pay the claim, as there is no privity of contract between this OP and the customers of the Dealer/Original equipment manufacturers.  Items under complaint are examined by the technical personnel.  This OP states that, they have received six tyres of size 11.00-20 MUILE XL TT 18PR bearing Sl.Nos. B296004020, B328524020, B283724020, B296054020, B364953920 and B273874020 from Hattimattur Sales Corporation, West Bengal, Plaza – 1 and claim receipt Nos.HUBC2835C, HUBC2836C, HUBC2837C, HUBC2838C, HUBC2839C and HUBC2840C all dated 16.03.2021 were issued.  Thereafter, the Technical Service Personnel of this OP on 16.03.2021 inspected the said tyres, when it was found that there was no manufacturing defect in the said tyres.  The tyre bearing Sl.No.B296004020 failed due to “Heel and Toe Wear (Lug Tyres)’, tyre bearing Sl.No.B283724020 failed due to “Spotty Wear” and tyres bearing Sl.No.B328524020, B296054020, B364953920 and B273874020 failed due to “Neglected Tread Cut”.  This failure is on account of careless use of the tyres by the complainant and/or his agent and not on account of or a result of a manufacturing defect and not covered under our warranty policy.  This OP submits that there are several factors, which eventually influence the performance of a tyre viz.(i) mechanical condition and/or irregularities of the vehicle; (ii) proper maintenance of the tyres; (iii) road conditions; (iv) driving habits; (v) speed; (vi) nature of the terrain i.e., level ground, hilly and/or winding roads; (vii) the season of the year when the tyre was used; (viii) position of the tyre on the vehicle; and (ix) inflation/pressure and the external object with which the tyre may come in contact while in motion.     Hence, prays for dismiss the complaint.

          4.       To prove the case, complainant filed affidavit evidence and examined as PW-1 and got marked the documents as Ex.C-1 to Ex.C-8.  OPs have not chosen to file affidavit evidence and no documents have been got marked.

          5.       Heard the counsel for complainant.  No arguments advanced by OPs.

          6.       The points for consideration to us are as under:

i)        Whether the complainant proves that, there is a manufacturing defect in six tyres and also deficiency in service?

ii)       Whether the complaint is entitled for the relief, from whom?

iii)      What order?

          7.       Our findings on the above points are as under:   

                   Point No.1: Partly in Affirmative

                   Point No.2: Partly in Affirmative

                   Point No.3: As per final order.

          REASONS

          8.       Point No.1:- The learned counsel for the complainant Sri.B.V. Neerloti argued that, as per affidavit of PW-1 and documents Ex.C-1 to C-8, complainant has proved the manufacturing defects in the tyres and deficiency in service by the OPs. 

          9.       On careful perusal of material placed before us, PW-1 has filed affidavit in-lieu of his chief examination and reiterated the contents of the complaint.  OPs have not chosen to cross-examine the PW-1 or filed their affidavit to rebut the case of the complainant.  So, oral and documentary evidence of the complainant is remained unchallenged and there are no reasons to disbelieve his case.

          10.     At the very outset, undisputed facts are that, PW-1 purchased the Tipper vehicle bearing Registration No.KA-26 B-2365 from OP No.1 for a sum of Rs.30,50,800/-.  Tyres and tubes were supplied by OP No.2 to the OP No.1, further six tyres inspected by the Technical Personnel of OP No.2.  Attested copy of the RC, quotation issued by OP No.1 Bharat Benz, sanction letter issued by Canara Bank in favour of complainant, permit issued by RTO.  After inspection by Technical Personnel of the OP No.2, claim has been rejected stating that, there is no manufacturing defects and it is a negligent driving and use by the complainant.  Ex.C-1 claim rejection reveals that, product has failed due to Heel and Toe Wear (Lug Tyres).  The failure is not due to any manufacturing defect of the product and not covered under their warranty policy.  Ex.C-2 and 4 to 6 reveal that, product has failed due to neglected tread cut and failure is not due to any manufacturing defect of the product.  Ex.C-3 reveals that, the product has failed due to Spotty Wear.  For the above, it is crystal clear that, all six tyres have been damaged during warranty period.  OP No.2 is not disputing the damage caused.  The main contention of OP No.2 is that, as per opinion of Technical Personnel, there is no defect found in the product and not covered under their warranty policy.  Whether said defect is due to manufacturing defect or negligent use and rough handling by the complainant is to be looked into. 

          11.     PW-1 has stated that, at the time of purchase, OP No.1 assured that, the period of tyres have been given minimum utilization is 35000 KMs to 37000 KMs but, within three months and running of tipper about 1300 KMs, tyres have been damaged.  Vehicle was purchased in the month of December-2020, complainant brought to the notice of OPs orally and finally issued legal notice on 05.04.2021 stating that, here is a defects in the tyres.  Except written version filed by the OPs, they have not chosen to prove their defense by filing affidavits or produced any documents.  So, the contention taken by the OP No.2 that, there is no manufacturing defect in the tyres and it is a negligent use and rough handling by complainant cannot be accepted. It is a settled law that, mere filing of written version and denying the case of the complainant, blaming the complainant regarding use and occupation of the vehicle cannot be accepted without adducing oral and documentary evidence.  Therefore, the contention raised in written version cannot be believed. 

          12.     Complainant produced copy of the bill issued by National Tyres, Gadag dated 11.03.2021 reveals that, complainant purchased six tyres and tubes.  PW-1 has stated that, immediately after handing over the tyres for inspection to the OPs and claim was rejected by the OP No.2, he has purchased new tyres and tubes.  Of course, OP No.2 in written version contended that, after inspection and rejecting the claim they have returned the six tyres to OP No.1 and informed the complainant to take back the same.  OP No.2 has not produced any scrap of paper to show that, they have returned the six tyres to complainant.  So, there is no reason to disbelieve the evidence of complainant that, after rejection of claim, all tyres have not been returned to the complainant and he purchased new tyres and tubes.

          13.     For the above, it could be gathered that, there is a manufacturing defect in all tyres and also there is a deficiency in service of OPs.  In Para-15 of the written version, OP No.1 stated that, as per operators manual of the vehicle mentioned at clause(1) General in terms of warranty column at clause(6) that, ‘ proprietary parts not manufactured by DICV but supplied by other manufactures such as tyres, tubes etc., shall be governed by the terms and conditions of warranty offered by the respective manufacturers and not by DICV.  Copy of the said general terms of warranty is produced along with written version filed by OP No.1.  On perusal of said terms of warranty, all the above mentioned parts like tyres, tubes needs to be referred to the respective manufacturers through the authorized Bharat Benz Service Centers.  So, OP No.2 is responsible and liable to pay the compensation.  Immediately after the complaint brought to the notice of OP No.1, who in turn brought to the notice of OP No.2.  So, OP No.1 has discharged his duty without delay.  So, OP No.1 is not liable to pay the compensation. 

          As per the judgment passed in FA No.469/2008 on the file of State Consumer Disputes Redressal Commission, Mumbai in Bandewar Tractors, M.I.D.C Vs. Baburao Shahurao Kharate on November-2013 wherein it is held that:

                                                                                “ “ Thus within a period of six months it was noticed that the said tractor was defective as patches were found from inside of the said tractor.  Opponent has also not disputed this fact of patches to the tyre.  The contention of opponent that as per report of tyre company there were only patches and there was not manufacturing defect in the tyre, cannot be accepted.  In fact for a new tyre it was not expected to have such patches from inside and hence it is obvious that said tyre was defective.  It is also not acceptable that the CEAT tyre Co. is responsible for the said defect, as contended by the appellant.  In fact the tractor along with tyre was purchased by complainant from opponent.  Therefore, it is the opponent who is responsible for defect in any part of the tractor. 

As per the ratio given in the case of M/s Shukla Automobiles Vs. Sudhi Sambhaji Maske & others pertaining of revision petition No.586/08 by the Hon’ble Nationa Commission which is relied on by the District Consumer Forum, it is the opponent from whom the tractor is purchased by the complainant is responsible and liable for any defects in the said tractor during the warranty period ”.

          The facts and circumstances of the case and the ratio of the decision is aptly applicable to the case on hand.  Even present OP No.2 CEAT Limited is also a party in the above decision.

          14.     The OP No.2 is the manufacturing and marketing of tyres, tubes and flops (products) to the manufacturers on a principle to principle basis and the said tyres were found defect in warranty period and it is deficiency of service on the part of the OP No.2.  Hence, OP No.2 is liable to pay the price amount of all six tyres with compensation towards mental agony and cost.  Therefore, OP No.2 is liable to pay the compensation towards, mental agony and cost.  For the above, we answer point No.1 is partly in affirmative.       

          15.     Point No.2:- So far as the loss caused to the complainant is concerned, he has approximately claimed Rs.1,20,000/- in his complaint.  The receipt issued by National Tyres, Gadag dated 11.03.2021 reveals that, for four tyres, the cost is Rs.95,000/-, for two tyres Rs.46,000/-, for six tubes Rs.9,000/- and another six tubes Rs.3,000/- in all Rs.1,53,000/- has been paid by the complainant.   However, in complaint there is no recital regarding tubes, only alleging defects of six tyres and the claim is Rs.1,20,000/-.  Of course, alternatively complainant seeking prayer for replacement of tyres, but already complainant purchased new tyres and already about more than two years has been lapsed from the date of purchase.  So, it is proper to award compensation of Rs.1,20,000/- towards manufacturing defects and deficiency of service.

          16.     Because the claim was rejected by OP No.2, complainant has suffered mental agony and also he immediately invested money for purchasing of new tyres.  Hence, complainant is entitled for a sum of Rs.20,000/- towards mental agony due to manufacturing defects and deficiency of service and also cost of this complaint of Rs.5,000/-.  For the above, we answer point No.2 is partly in affirmative.       

          17.     Point No.3:- In the result, we pass the following: 

           //O R D E R//

              The complaint filed by the complainant u/Sec.35 of the Consumer Protection Act, 2019 is allowed in part against OP No.2. 

              Complainant is entitled for a sum of Rs.1,20,000/- towards price of six tyres, Rs.20,000/- towards mental agony and Rs.5,000/- towards cost of the complaint, in all a sum of Rs.1,45,000/- from OP No.2.

              Further OP No.2 is directed to pay interest @ 10% p.a on Rs.1,20,000/- from the date of complaint till realization.

               Complaint filed against OP No.1 is dismissed.

              Office is directed to send the copies of this order to the parties free of cost.

           (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us in the Open Court on this 13^th day of April-2022)

,            

(Shri Raju N. Metri)      (Shri. D.Y. Basapur)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER

-: ANNEXURE :-

EVIDENCE ON BEHALF OF COMPLAINANT/S:

PW-1: Sri. Srikanth Lakshman Angadi.

DOCUMENTS ON BEHALF OF COMPLAINANT/S

Ex.C-1 to 6: Rejection of Claims

Ex.C-7: Postal acknowledgement  

Ex.C-8: Legal Notice

EVIDENCE ON BEHALF OF OPs:

                 -N I L –

DOCUMENTS ON BEHALF OF OPs:

                 -N I L –

(Shri Raju N. Metri)    (Shri. D.Y. Basapur)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER