Punjab

Ludhiana

CC/14/434

M/s Apan India Exports - Complainant(s)

Versus

M/s Mercedes Beng India Pvt Ltd - Opp.Party(s)

16 Sep 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 434 of 09.06.2014

Date of Decision            :   16.09.2015

 

M/s Apan India Export # 1398, Sector 40-B, Chandigarh through its Proprietor Sh.Pardeep Kumar Nanda. 

Local Address: B-7, J.K.Lane, Bhai Himmat Singh Nagar, Dugri, Ludhiana having works at Ludhiana.

….. Complainant

Versus

1.M/s Mercedes Benz India Pvt. Ltd. E-3, MIDC, Chakan, Phase-II, Chakan, Industrial Area, Kuruli & Nighoje Tal: Khed-Pune 410501.

2.M/s Joshi Autozone Pvt. Ltd. Authorized dealer of Mercedes Benz Passenger Vehicle Plot No.41, Industrial Area, Phase-II, Chandigarh.

3.M/s Joshi Autozone Pvt. Ltd., Authorized dealer of Mercedes Benz Passenger Vehicle, G.T.Road, Jugiana NH-1, Ludhiana, Punjab-141017.

4.M/s Michelin Tyres India Pvt Limited, Orchid Business Park, 3^rd Floor, Sector-48, Sohna Road, Gurgaon: 122002.

…Opposite parties

 

                   (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.SAT PAUL GARG, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :         Sh.Sarvjit Singh, Advocate.

For OP1                         :         Sh.M.S.Pandir, Advocate.

For OP2 & OP3             :         Sh.Rajesh Verma, Advocate.

For OP4                         :         Sh.Ritesh Mohindra, Advocate.

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant M/s Apan India Export filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter referred to as the ‘Act’) against the OPs, by alleging that it purchased car made No.1, Mercedes Benz Model E220 CDI Cuprite Brown bearing registration No.CH-01-AR-4100 from OP1 through OP2 on 8.2.2013. The tyres of the said car were manufactured by OP4. Car travelled 15500 Kms only on roadside. The frond tyre of the said car got busted during driving on highway on 28.3.2014, but a major accident was averted. Later on complainant observed that two rear tyres of the car also were swollen from outside and all these tyres were having manufacturing defect. Thereafter, complainant approached OP1 and even personally visited OP3, who is the authorized local service centre of OP1. Request was made to OP1 to check and remove the defects, but the matter was procrastinated. Defects in the tyres fall in the ambit of negligence and unfair trade practice under the Act. Direction sought to Ops to pay Rs.1,25,000/- as cost of five tyres, but Rs.6500/- as compensation on account of mental agony and harassment.

2.                          Op1 filed written reply by admitting that OP2 is the authorized dealer in Chandigarh with branch office at Ludhiana as OP3. OP4 alleged to be reputed tyre manufacturer/supplier. It is claimed that complaint is basically filed against manufacturer/supplier i.e. OP4 for seeking replacement/cost of five tyres, though only two tyres were affected by sidewall bulge due to external factors. OP4 examined the tyres and found vide report dated 4.6.2014 that there was no defect therein, but the sidewall bulge occurred due to very rough use of the car with low air pressure in tyres. That sidewall bulge occurred due to pinching of tyres on account of impact of potholes and severe contact with kerb stone. So damage to tyres occurred due to negligence of complainant himself. Suppression of material facts by complainant pleaded by claiming that OP1 has been unnecessarily dragged in litigation. Complainant is alleged to be a commercial organization involved in export business, due to which, the same is not a consumer as defined under Section 2(d) of the Act. So, complainant being firm or company engaged in big business not entitled to invoke the provisions of the Act. At instance of the complainant, OP4 inspected the tyres on 4.6.2014 and above referred report was received for finding that that there was no manufacturing defect in the tyres. So, replacement of the tyres can’t took place under warranty. The car was driven with low tyre pressure which resulted in pinching of tyre walls. Each and every car manufactured by OP1 undergoes stringent quality checks at every stage. OP1 has been exporting a substantial part of the cars manufactured in India for earning foreign exchange for the country. The reason for damage to the tyres of the car is outside the purview of warranty terms, but despite that as a goodwill gesture, OP1 vide email dated 17.6.2014, offered to bear 50% cost of two tyres each, but that goodwill gesture offer not accepted by the complainant. Complaint has been filed for getting speculative gain and as such prayer made for dismissal of same.

3.                In separate joint written statement filed by OP2 and OP3, it is pleaded interalia as if complaint is not maintainable being baseless, frivolous, vague and filed with ulterior motive; complaint does not fall within the definition of Consumer under the Act; complainant has no cause of action; complicated questions of law and fact are involved, due to which, voluminous evidence required and as such, this Forum has no jurisdiction. Besides this, it is claimed that speculative and vexatious claim has been put forth by the complainant. Damage to the tyres of the car occurred due to external impact on the side walls and same resulted in a localized area of damage to its main structure. Damage to the tyres occurred due to extraneous/external factors and same is not a manufacturing defect. Tyre bulge complaint was referred to OP4, who procured the inspection report, which rules out the possibility of manufacturing defect. That information was communicated to complainant vide email dated 6.6.2014. As per Owner’s Manual regarding the operation of the tyres and wheels, the wheels must not be driven over kerbs, speed humps etc. Even slow driving is advised on humps with warning that otherwise the side walls of the tyres could be damaged. Tyres are excluded under the warranty terms, but on account of goodwill gesture, 50% costs of two tyres was offered. Otherwise, averments of the written statement are almost of the same as those of written statement of OP1.

4.                OP4 also submitted written statement on the same lines as submitted by other Ops. It is claimed through this written statement that tyres manufactured by OP4 confirms to international standard because of adoption of stringent quality measures. Moreover, tyres manufactured by OP4 undergo stringent testing procedure before the same are made available for sale in the market. Tyres manufactured by OP4 comply with IS-15633:2005 specifications and they confirmed to be IS standards. OP4 has a policy for giving replacement of defective tyre on pro-rata basis. Manufacturing defects as per specified terms and conditions are the defects in design, workmanship or material used for manufacturing tyres. In case, tyres manufactured by OP4 get defective by way of mis-handling/misuse by the customer, then OP4 cannot be made liable. OP4 has appointed executive to deal with the complaints for their fast redressal. After receipt of complaint from customer, the same after registration got processed from trained executive through inspection. Inspection sheet is prepared immediately. After receipt of compliant from complainant, two tyres were got inspected from trained executive, who submitted report dated 4.6.2014 that damage to the tyres was due to pinch shock, which is caused due to pinching of the sidewall between the road and the rim due to hitting with a pothole, kerb or an external object. Damage to the tyres was purely an accidental damage and same is not covered under the warranty. There was no manufacturing defect in the tyres found during inspection. Claim of the complainant was rejected as per warranty policy of the OP4 company. Road hazard injury, incorrect mounting of the tyre, mechanical irregularity in the vehicle such as wheel misalignment resulting in uneven or rapid wear which is not covered by warranty clause. Improper maintenance or use of the vehicle, if caused damage to the tyres, the same is also not covered. All the disputes alleged to be subject to Arbitration.

5.                Complainant to prove its case tendered in evidence affidavit Ex.CA of Sh.Pradeep Kumar Nanda, the Proprietor, Ex.CB of Sh.Parminder Singh, Ex.CC of Sh.Sarvjit Singh, Advocate along with documents EX.C1, Ex.C2/A, Ex.C3/A and Ex.C4 to Ex.C9. Even affidavit Ex.CX of Sh.Sarvjit Singh, Advocate along with documents Ex.C1/A to Ex.C1/E were tendered in evidence and thereafter, counsel for complainant closed the evidence.

6.                Affidavit Ex.RA1 of Mr.Raghunandan Balkrishan Pendse, Head Legal Affairs & Company Secretary of OP1 tendered in evidence along with documents Ex.R1/1 and Ex.R1/2 by counsel for OP1 and thereafter, he closed the evidence.

7.                OP2 and OP3 through their counsel tendered affidavit Ex.R2/1 of Sh.Jagjit Singh, Assistant Sales Manager and then closed evidence after tendering in evidence documents Ex.R1 to Ex.R6.

8.                On the other hand, counsel for OP4 tendered in evidence affidavit Ex.RW4/1 of Mr.Gaurav Hans, Authorized Signatory of OP4 along with documents Ex.OP1 and Ex.OP2 and thereafter, closed the evidence.

9.                          Written arguments not submitted by any of the parties but oral arguments addressed and were heard. Records gone through minutely. 

10.              It is vehemently contended by Sh.Sarvjit Singh, Advocate representing the complainant that three tyres of the purchased Mercedes Benz car through invoice Ex.C5 were having manufacturing defect and as such prayer made for direction to Ops to reimburse the price of these tyres. These tyres directly manufactured by OP4. It is contended that one of the tyre stood burst and two others stood inflated/swollen from outside and that is why OP1 and OP2 offered 50% of the price of two tyres through email. However, it is contended by counsel for Ops that there was no manufacturing defect in the tyres. Rather after receipt of the complaint of complainant, OP4 got the tyres checked/tested from experts, who found the tyres free from manufacturing defect. Rather damage to the tyres was caused due to external impact/force and as such, it is contended that complainant has misconceived and concealed the true facts.

11.              The bone of contention still remains as to whether the complainant is consumer or not?

12.              Tax invoice Ex.C5 regarding purchase of car along with Star Ease Basic Service Package Agreement Ex.C6 and other documents of emails Ex.C7 and Estimate Summary Ex.C9 establishes that car in question was purchased in the name of Apan India Exports, B-7 JK Lane Bhai Himmat Singh Nagar, Dugri Ludhiana, Punjab. Entire correspondence through emails even was held with that name in the complaint also it is mentioned that this car was purchased in the name of M/s Apan India Exports. So, it is obvious that car in question was not purchased in individual name, but it was purchased in the name of M/s Apan India Export, a commercial concern. Ops through affidavit Ex.RA1 of Mr.Raghunandan Balkrishan Pendse claimed that car in question was owned by a commercial organization engaged in commercial activity. Contents of that affidavit are correct, particularly when heading of the complaint itself is to the effect that complainant is an export unit. A concern indulging in export activities certainly indulging in commercial activities. So, invoice and other material placed on record enough to establish that car in question was purchased by a commercial concern for commercial activities. There is no averment in the complaint or in the affidavit submitted on behalf of complainant that car in question was purchased for individual use or for the use of family members of Pardeep Kumar Nanda, the proprietor of M/s Apan India Export. So, material produced on record establishes that car was purchased not by individual consumer or for the benefit of family members for earning their livelihood, but for carrying on activities of a business concern. As per law laid down in case of Lords Wear Pvt. Ltd. vs. Rance Computer Pvt. Ltd.-I(2014)CPJ-332(N.C.), in case, a software is purchased by a private limited company, then the said company will not be a consumer within the meaning of section 2(d) of the Act, particularly when plea not raised that Managing Director running business for earning his livelihood. Same is the position in this case before us. There is no plea taken in the complaint and nor in the material produced on record to show that car was purchased by the proprietor for running business for earning livelihood. Rather, the car was purchased in the name of a commercial concern carrying export activities and as such, certainly the complainant is not a consumer. Even as per law laid down in case of M/s R.K.Handicraft and others vs. M/s Parmanand Ganda Singh & Company and others-II(2015)CPJ-13(N.C.), in case, the subject generator set was purchased for generate electricity to run a factory for manufacturing of handloom products, then the complainant will not be a consumer. The same is the position in this case before us and as such, the complainant is not a consumer, due to which, he is not entitled to avail benefit of provisions of the Act. Being so, this complaint at instance of present complainant is not maintainable.

13.              In the complaint, details of the manufacturing defects in the tyres not pointed out, but general allegations levelled that there was manufacturing defect in the tyres. However, in affidavit Ex.CA of Sh.Pardeep Kumar Nanda, it is mentioned that one tyre was burst from the side wall, but the side wall of two other tyres stood bulged. That bulged shown through photographs Ex.C2/A and Ex.C3/A. Bulging of the tyres shows through Ex.C1. It is claimed through this affidavit that bulging of the tyres took place through separation of the layers material-plies and rubbers. Further through affidavit Ex.CB, it is claimed that there were no cuts observed through inside and outside of tyres. So evidence beyond the pleadings in this respect has been adduced by the complainant. Even if this evidence taken into consideration, but the same do not point out the manufacturing defect in the tyres because it is not pointed out as to in what components of the tyres defect develop. The kind and quality of the rubber used in the tyre not specified in the evidence brought on record by the complainant. However, Ops have produced on record affidavit Ex.RW4/1 of Mr.Gaurav Hans, the authorized signatory of OP4 along with email correspondence addressed to complainant Ex.OP2 for establishing that tyres sent by the complainant were got inspected from Mr.Abhishek Arora (Technical Account Manager, Michelin Tyres) on 4.6.2014, who found damage on the tyres was not a result of design, workmanship or the sued materials. Rather, it was found that defect in the tyres was purely on account of an accidental damage. Description of that damage was pinch shock. That pinching took place because of contact of side wall to the tyres between road and rim. Pinch shock as per annexure of OP2 takes place due to hitting of the tyre with a pothole, kerb or an external object while in use. Bulge appeared on the tyre sidewall as a consequence of pinch shock in inflated condition. So, pointed out defects surfaced on account of rough use of the tyres on hazardous/pothole/studded road. As and when the defect emerges on account of use of tyre not as per specification, then certainly those are not the manufacturing defect. Complainant has not got produced on record the report of any expert or showing that manufacturing defect was there in the three tyres. On the other hand, OP4 got the tyres inspected from technical expert and as such, evidence of Ops believable that damage caused to the tyres due to pinch shock.

14.              As per law laid down in case of Suresh Chand Jain vs. Service Engineer and Sales Supervisor in Revision petition No.3845 of 2006 decided on 16.12.2010 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, onus to prove that there was a manufacturing defect in the tyres was on the petitioner and in case, he fails to discharge by leading cogent evidence, then complaint liable to be dismissed. Same is the position this case before us because here though, photographic evidence produced but no technical expert examined to prove the manufacturing defect in the tyres. Though Sh.Parminder Singh through affidavit Ex.CB claimed to be having experience of 30 years in Automobile, Spare Parts, Tyres & tubes and Rubber articles, but he has not specified the parts, in which, defect occurred. What were the cause of separation of layers of material-plies and rubbers, those have not been specified in affidavit Ex.CB. Even Ex.CB mention not made as to whether the pinch shock could have caused damage to the tyres in question or not. So, affidavit Ex.CB cannot be treated as cogent evidence and as such, in view of that the complainant has certainly failed to prove the manufacturing defect in the tyres. Being so on merit also, the complainant has failed to prove his case.

15.              Therefore, as a sequel of the above discussion, the present complaint merits dismissal and same is hereby dismissed with no order as to costs. Copies of order be supplied to the parties free of costs as per rules.

16.                        File be indexed and consigned to record room.

 

 

(Sat Paul Garg)                                                 (G.K.Dhir)

   Member                                                            President

Announced in Open Forum

Dated:16.09.2015

Gurpreet Sharma.