FA 731/2008 against CC 101/2006 on the file of the District Forum I, Hyderabad.

Mr. M. L. Agarwal, S/o Late Sri G. R. Agarwal,

Aged about 72 years, Business,

R/o 2-1-113, Tobacco Bazar

Secunderabad – 500 003 (A.P.)                 

And

1.         The Manager, MRF Limited

5-8-328/2, Chapel Road, P. O. Box No.200

Nampally, Hyderabad – 500 001(A.P.   Respondent/Opp. Party No.1

2. The Manager, M. G. Tyres

1, Alkarim Trade Centre,

Ranigunj, Secunderabad – 500 003 (AP  .. Respondent/OP. no.2

Counsel for the Appellant                          :           Mr. G. Venkata Swamy Goud

Counsel for the Respondent         :           M/s. J. Prabhakar

Coram           ;          

                              Sri R. Lakshminarasimha Rao…      Hon’ble Member

And

                                    Sri T. Ashok Kumar                ..         Hon’ble Member

Friday, the Tenth Day of February

Two Thousand Twelve

          Oral Order       :    per Sri T. Ashok Kumar , Hon’ble Member )

****

1.         This is an appeal preferred by the unsuccessful  against the orders dated 29.04.2008  in CC No. 101/2006 passed by the District Forum I, Hyderabad. For convenience sake, the parties as arrayed in the complaint are referred to here

2.         CC 101/2006  and C. C. No. 814/2006 were disposed of by District Forum I, Hyderabad vide common order dated 29.04.2008  and since in this Apeal we are concerned with only dismissal of CC 101/2006. Therefore  facts of the said complaint are described as under :

3.         The complainant purchased   MRE Tyres  were purchased from OP under cash Bill No. 82 dated 08.06.2004 for Rs.89,650/-.  The description of the  said tyres is as follows :1000 x 20 x 16 MRF Super-lug and Super Millar and No : (1) 5E 22-2294953  (2) 5E 210274953  (3) 30585234953  (4) 30865744953  (5) 30333484943  (6) 30865724953  (7) 3059229453  (8) 30040455054  (9) 30005125054   (10) 30065744953. All the ten  tyres were worn out and became flat and 1 tyre No. 30333484943 has bursted after running only  35,000 kms as against assurance and guarantee  of 80,000 kms and upto ¼ groove of the tyre/4 years from any manufacturing defects.  Therefore, the complainant made a complaint to OPs on 03.09.2004 which was   by OP No. 1 on 03.09.2004 vide letter no. MA/6400 to replace all ten defective tyres with real tyres of same size and company or pay the cost of (10)   tyres with interest at  24% PA but there was no response from OPs. Subsequently, also he addressed   letters but invain and that all the said lapses on the part of OP amount to deficiency in service and unfair trade practice and hence the complaint to direct OPs for such replacement of new tyres or pay Rs.80  at 24% PA towards  costs of the tyres and all other incidental charges and compensation.

4.         OP filed written version denying the allegations made in the complaint and disputing the claim.  The gist of the said version is that the complainant had fitted tyres and used them for commercial purpose and therefore he is not within the meaning of the Consumer Protection Act. The serial numbers of the tyrs bearing No.s 305855234953 and 305922945 were not manufactured by them. In response to their letters   (1) 30005125054 (2) 30585234953  (3) 30865724953   (4) 30865744953  (5) 30592294953 and that the same were inspected by Technical Service Engineer of OP and that after such an inspection it was found that five tyres were free from manufacturing defect and the remaining tyres were not produced for inspection and they  have been damaged due to uneven service center wear caused due to prolonged usage of the tyre in an over inflated condition and bad maintenance and there is no manufacturing defect at all in the said tyres one tyre bearing No. 30333484953 was replaced and that OP had sent a reply dt.17.3.2005 to the complainant requesting for inspection of the tyres but  he did not forward all the tyres.  It is further pleaded by OP that the life of the tyres depends on many factors such as terrain, driving habits, tyre inflation pressure, load, speed, operation and that whenever OP receives complaints about tyres the customer has to personally bring the tyres and hand over it who in turn will send the same to nearest office of the OP for inspection at its expenses and the defective tyres will be examined by Technical service personnel  to find out whether there is any manufacturing defect or not and that inspection report will be prepared and copies there of will be sent to the customer and that the complainant did not give any opportunity for such an inspection  in spite of the request and that unless remaining tyres are examined by technical service Engineer, the OP will not be in a position to ascertain the damages which are due to manufacturing defect and that tyres being rubber product it cannot be of fool proof impacts with external objects and that the complaint was filed to harass the OP and that there is no negligence or deficiency in service and thus prayed to dismiss the complaint.

5.         Having considered the evidence affidavits and documents filed in this case, the District Forum dismissed the complaint.

6.         Feeling aggrieved with the said finding, the unsuccessful complainant filed this appeal on several grounds and mainly contended that the lapses on the part of OP amounts to deficiency in service and that the District Forum did not appreciate the case of the complainant in a right manner and that District Forum failed to understand the scope of S.12 of C. P. Act and that the unilateral report of Technical Service Engineer of OP cannot be treated as genuine and that total tyres were given  and not 5 ( five) tyres as alleged and thus prayed to allow the appeal and set aside the impugned order.

7.         Inspite of several chances no arguments were advanced on both sides and therefore reserved the matter for orders on the available material.

8.         Now the point for consideration is, whether the order of the District Forum is

9.          cogent reasons the District Consumer Forum held that the complainant is a ‘ consumer’ within the meaning of the Act and there are no grounds to take a different view in the said context.

10Point :

There is no dispute between the parties to the proceedings about the complainant purchasing eight Tyres  described by him in the complaint vide Ex. A1 and Ex. A2 bills  from OP for consideration mentioned in the said documents.  According to the complainant, the said tyres were quite defective and that in spite of his demand they were not replaced or value there of not paid with interest  and that acts of OP amount to deficiency in service and unfair trade practice and therefore OP is liable to answer his claim made in the complaint and on the other hand the contention of OP is that  the complainant did not establish with believable evidence that there was manufacturing defect in the tyres and therefore he is not entitled for any reliefs as prayed for.  Burden is on the complainant to prove his case to get the reliefs claimed by him in his complaint. As rightly observed by the District Consumer Forum, in view of the provisions  of Sec. 13 (1)(c)  of the C. P. Act where the complainant alleges defects in the purchased goods  it cannot be determined without proper analysis  or test of the goods.  In such cases, the complainant shall make a request with District Forum for sending the alleged defective goods sample duly to the appropriate laboratory for analysis and report to know whether the goods in question suffered from any manufacturing defects calling for such a report within 45 days of the request of the reference ) and the required fee/charges have to be paid by him.  No such steps were taken by the complainant. The order under appeal discloses that both sides expressed that the Rubber Technology laboratory is located in Kerala State and that it consumes a lot of time for securing a report from the far end and thus both sides have  to suggest name of a local engineer who is having qualification and experience in such a field but failed to secure the reference of any expert and get the tyres tested by him.  It appears that they did not show any interest in the said aspect and thus requested the District Forum to decide the case on merits on the available evidence.  In such circumstances, the District Forum was constrained to consider the test report of the Technical expert of OP     (in B-  and therefore no fault can be found on the Forum in the said context.  Even after such a report, the complainant did not take steps to send the tyres to appropriate laboratory.  He should have retained the tyres with him and file an application before this Commission to refer the same to technical expert but did not do so.  According to OP, only five tyres were produced and that after required test it was opined that there was no manufacturing defect in the   and in such circumstances it has to be held that the tyres had no manufacturing defects.  Therefore, the comment on affidavit of Mr. Vijaya Pershad by the complainant could not be appreciated in his favour.  In all fairness, op also filed IA 359/2007 and IA 332/2007 in District Consumer Forum to direct the complainant to send the alleged tyres to the appropriate laboratory for report but the complainant did not do so. As rightly contended by the OP, the life of the tyres depends on many factors such as terrain, driving habits, tyre inflation – pressure, load speed operation etc and there is no evidence in the said context in favour of the complainant from the drivers etc. rebutting the said contention of the OP.  Possibility of wear and tear if any depending on the said factors cannot be ruled out.  The complainant failed to substantiate his case with dependable evidence and hence the appeal is devoid of merit and liable to be dismissed. The appeal in FA 730/2008 filed against the common orders in CC 814/2006 was dismissed vide orders dated 14.11.2011 on similar discussion and grounds by this Commission.

11        In the result, the appeal is dismissed and the order of the District Forum is confirmed. No costs.

                                                                                    MEMBER

                                                                                    MEMBER

                                                                                    DATED          10.02.2012