O R D E R
SRI.D. KRISHNAPPA, PRESIDENT:
The brief facts of the complaint filed by the complainant against the Ops are, that he is the owner of a lorry was using it for transporting sand and selling it in the open market. On 19/05/2009, he purchased two tyres from Op No.2 who is the dealer of Op No.1 for Rs.24,200/-. That he fixed those tyres to his lorry. On 20/05/2009, the lorry was filled up with sand within the permitted level and was coming from Hassan towards Bangalore. One of the purchased tyres got burst even though lorry was being driven with moderate speed. As the result, the lorry was stopped immediately and he found that due to air problem in the tyre it got burst. Then he got that tyre removed and was given to second Op on 23/05/2009 to got it inspected who admitted that burst was due to air problem which was a manufacturing defect. Then his claim for replacement of tyre was not accepted on the basis of the alleged inspection report of Op No.1 dated 27/05/2009 and stated that due to manufacturing defect one of the tyre purchased by him was burst and because of that he suffered loss of Rs.5,000/- per day as lorry was kept idle and therefore for 15 days time he suffered loss of Rs.1,37,100/- and worked out total damages suffered as Rs.1,42,000/- and prayed for that relief.
2. Op No.1 has appeared through his advocate and filed version. Op No.2 is set ex-parte. Op No.1 in the version denying his knowledge about ownership of the lorry, bursting of the tyre and stated that burst had taken place due to air problem in that tyre etc., is false and have denying that the tyre had run only 250 kms from the date of fixing, denied that the tyre had any manufacturing defect. That tyre was subjected to test by technical service personnel of their concern who has opined that tyre had suffered concussion/impact caused due to sudden impact on the tyre which has come in contact with hard stationary object while the vehicle was in motion. Therefore, denying any manufacturing defect and deficiency in their service questioning the correctness of the amount claimed in this complaint has prayed for dismissal of the complaint.
3. In the course of enquiry into the complaint, the complainant and one Shankar Narayan on behalf of Op No.1 have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant along with the complaint has produced tax invoice, claiming forwarding docket, a letter addressed by Op No.1, inspection report of the Op and copy of legal notice with reply sent by first Op. Op has produced a copy of the inspection report. In the course of enquiry into this complaint, the first Op got the Rubber Research Institute of India appointed as an expert for inspection of the burst tyre to know whether the burst tyre had manufacturing defect. The expert has submitted his report. The complainant has filed objection to the expert report. Counsel for the complainant has filed written arguments. We have heard the counsel for the first Op and perused the records.
4. On the above contentions, following points for determination arise.
- Whether the complainant proves that one of the tyres purchased by him from Op No.2 which was manufactured by Op No.1 had burst because of manufacturing defect.
- To what relief the complainant is entitled to?
5. Our findings are as under:
Point No.1 : In the negative
Point No.2 : See the final order
REASONS:
6. Answer on point No.1: As we find no dispute between the parties regarding purchase of tyre, its value and its burst, we shall have to find out whether that tyre had burst because of manufacturing defect or for some other reason.
7. The allegations of the complainant that tyre had burst because of manufacturing defect and that Op No.2 had also told him about the same is vehemently denied by the first Op by disputing that contention of the complainant, got an expert appointed for examining that burst tyre. The Hon’ble State Commission as per its order dated 22/07/2010 in Revision Petition No.16/10 had appointed Department of Training and Technical Consultancy Rubber Board, Ministry of Commerce, Kottayam, Kerala as expert for examining the burst tyre and to offer their opinion. Accordingly, the issue was referred to that expert by also sending that tyre for examination who have submitted report to this forum on 10/10/2010. The complainant filed objection to the expert report contending that examination of the tyre has not been done by the expert in accordance with the memo of instruction filed by him and further contended that Hon’ble State Commission had appointed Department of Training and Technical Consultancy Rubber Board, Ministry of Commerce, Kottayam, Kerala where examination of the tyre has been done by the Rubber Research of India and therefore contended that the expert appointed by the Hon’ble State Commission has not examined the tyre and submitted the report and that report is liable to be rejected. As evident from the warrant issued by this forum to the expert, it was addressed to Department of Training and Technical Consultancy Rubber Board, Ministry of Commerce, Kottaym. The said expert on receipt of the warrant after examining the tyre in question has submitted report on 10/10/2010 as already stated above. In this letter head, we see the name as the Rubber Research Institute of India, Rubber Board, Ministry of Commerce and Industry, Govt. of India. Therefore, it cannot be said that the expert who has examined the tyre and submitted the report is not the expert appointed by the Hon’ble State Commission but by a different organization. The Department of Technical Consultancy is not a different entity and it is the part of Rubber Board as given by the expert in his letter. Therefore, the report submitted by the Deputy Director of the Rubber Board cannot be held as in competent and by a different authority. The complainant has not disputed the competency of the Rubber Board to examine the tyre and to offer their opinion. The complainant has also not challenged the method adopted by the expert in examining the tyre. Therefore, we find no merits in the objection filed by the complainant to the report of the expert.
8. The complainant except alleging that the tyre has manufacturing defect has not placed any material or expert evidence from his side to prove that the tyre had manufacturing defect. Even after the receipt of the report of the expert the complainant disputing it has not opted to get tyre examined elsewhere. Therefore, the report of the expert under these circumstances cannot be rejected. The learned counsel appearing for the complainant though argued that report of the expert cannot be relied upon, but the complainant if he had really aggrieved by the report could have applied to this forum to summon the expert to subject him to cross examine but has not chosen to do so. The Op has also produced inspection report of the technical men of Op No.1 who examined the tyre to know the cause for burst. That report and the report of the expert appointed by the Hon’ble State Commission go in conformity with each other with regard to the cause of burst. The expert of the Rubber Board, Govt. of India after examining the defect he noticed in the tyre has opined as under:
“This appears to be an impact failure also referred as concussion. There is a possibility that when over inflated tyres of vehicles running at high speed suddenly hit a hard object due to the combined effect of speed and load of vehicle there can be a crack. This crack can lead to bursting of that portion which can have a cross shape. As this chance cannot be ruled out during the running of a tyre, it cannot be concluded that the failure is due to manufacturing defect”.
9. This opinion proves that the tyre did not have any manufacturing defect and it had burst because of possibility of suddenly hitting hard object due to combined effect of speed and load of vehicle there can be a crack and that crack can lead to bursting of the portion which can have a crossed crack. As against this, opinion reached by the expert and proof placed by the Op, the complainant has not been able to prove that the tyre he had purchased from Op N.2 is manufacturing defect. Thus, there is no truth in the allegation of the complainant and hold that the complaint is liable to be dismissed. Learned counsel appearing for the complainant has relied upon two decisions reported in AIR 1999 Alahabad Page 133 and I (2002) CPJ page 79 (NC) which have no bearing on the facts of the case. Hence, we at the cost of repetition, hold that the complainant has failed to prove the allegation and we therefore, answer point No.1 in the negative and pass the following order.
O R D E R
Complaint is dismissed. Parties to bear their own cost.
Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 13th December 2010.
MEMBER MEMBER PRESIDENT
