Punjab

Faridkot

CC/14/82

Rajinder singh - Complainant(s)

Versus

M/s New H.S. Tyres - Opp.Party(s)

Ashu Mittal

22 Jan 2015

ORDER

      DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

Complaint No. :        82

Date of Institution :  24.06.2014

Date of Decision :    22.01.2015

 

Rajinder Singh aged 31 years s/o Chinder  Singh r/o Prem Nagar, Kotkapura, Tehsil Kotkapura, District Faridkot.                                                                                                              

   .....Complainant

Versus

1. M/s New H S Tyres, Tinkoni, Bathinda Road, Kotkapura, Tehsil Kotkapura, District Faridkot through its Proprietor.
2. J P Tyres  & Company, Alankit Assignment Ltd No. 2E/21, Alankit House, Jhandewalan Extension, New Delhi-110055.

                                      ....Opposite Parties(Ops)

 

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:           Sh. Ashwani Kumar Mehta, President,

Smt Parampal Kaur, Member,

Sh P Singla, Member.

Present:        Sh Ashu Mittal,  Ld Counsel for complainant,

 Sh S K Ghand, Ld Counsel for OP-1,

 Sh R S  Kakkar, Ld Counsel for OP-2.

 

(A K Mehta, President)

                                             Complainant Rajinder Singh has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against M/s New H S Tyres etc/ Ops for selling tyres of poor quality and for not issuing bill by OP-1 and for seeking directions to Ops to pay Rs 20,000/- as compensation on account of financial loss, mental agony and harassment etc and pay the cost of litigation.

2                                          Briefly stated, the case of the complainant is that complainant owns a tractor bearing Registration No. PB 29C 5792, which he uses for his livelihood; that in the month of October 2013, complainant approached OP-1, who deals in tyres for the purpose of replacing rear tyres of tractor and OP-1 showed two new tyres of OP-2 and assured complainant that these tyres are of good quality and also gave guarantee for five years against any defect and on the assurance of OP-1, complainant purchased two tyres size 12.4-28, Model No. 010852-1413, SK 4753, SK 454, N111-T and tyre no. DMD672-4, DMD673-3, NB-13 for Rs 26,500/- on cash payment, but OP-1 did not issue any bill or receipt for purchase of said tyres even on demand of complainant and put off the complainant and complainant went away as he had faith in OP-1; that after about three months of purchase, the said tyres became defective and torn off; that complainant approached OP-1 to get replaced the tyres and also demanded bill for the tyres, but OP did not pay any attention to the requests of complainant and declined to replace the tyres and also did not issue bill despite many requests and thereafter, complainant complained to higher authorities but to no effect and due to defect in tyres, complainant and his family had to face much inconvenience and harassment and it  amounts to deficiency in service on the part of OPs; that complainant is also entitled to compensation of Rs.20,000/-  for financial loss, mental tension and harassment besides costs of the complaint along with main relief. Hence, the complaint.

3                                             The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 25.06.2014, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                                  On receipt of the notice, the opposite party no. 1 filed reply taking preliminary objections that complaint is not maintainable in present form and complainant is not the consumer of OP-1 as OP-1 never sold any tyre to the complainant; that tractor and the alleged tyre are not being used for the purpose for which tractor is registered, rather is being used for the purpose of earning livelihood; that complaint is bad in the eyes of law as the manufacturer, who gives guarantee or warrantee has not been impleaded as necessary party and thus, complaint is bad for non joinder of necessary party and is also bad for misjoinder of OP-1 as a party to the complaint; that complaint is vague in nature as complainant is not sure whether tyres are defective or torn off and whether he had to get the same replaced with new ones and from which shop he purchased the same and whether both the tyres are defective and torn off and complaint is vague and is filed to extract money from Ops and torn off or defective tyres are to be shown to the Forum for proper adjudication of the case. However, on merits, OP-1 has denied all the allegations levelled by complainant being incorrect and wrong and asserted that tractor in dispute was being used for earning livelihood, therefore, complainant does not come under the definition of consumer and case is a made up story by the complainant; that OP-1 has not sold the said tyres to the complainant and there is no reason why bill was not issued for purchase of said tyres and why did complainant reposed faith in OP-1 though complainant was stranger to him; that complaint filed by complainant is wrong as complainant might have purchased the tyres from some other unauthorized person/shop which does not fall under the jurisdiction of this Forum and in order to make the cause of action in Faridkot, complainant impleaded OP as necessary party and even OP-1 has no dealing with OP-2; that complainant is not sure whether said tyres are defective and are  torn off and whether he had to get the same replaced with new ones and from which shop he purchased the tyres and whether both the tyres are defective and torn off; that complaint is vague and is filed only to extract money from the OPs; that there is no deficiency in service on the part of answering opposite parties; that all other allegations and allegation with regard to relief sought were refuted with a prayer that complaint may be dismissed with costs against the answering opposite party.

5                                           OP-2 also filed reply through counsel and took preliminary objections that complaint is not maintainable in the present form and complainant is not consumer of OP-2 as OP-2 never sold any tyre to complainant through OP-1 and complainant was using the said tyres for the purpose of earning livelihood, whereas tyres in question were meant for plying in agriculture fields and not on roads and the wear and tear if any, is for the use on  road and is a natural phenomena and is not due to manufacturing defect; that complaint is bad in the eyes of law for non joinder of necessary party as manufacturer, who gives guarantee or warrantee is not impleaded as necessary party and complaint is vague as complainant is not sure whether tyres are defective or torn off and tyres are not technically examined for knowing that how this has happened and alleged tyres can be used only for agriculture purpose and not for commercial purpose on the road and tyres are not seen torn off in the photographs, rather tyres are only rubbed down, which is a routine matter; that OP-1 is not the dealer of OP-2 and complainant never bothered to file complaint with OP-2 with bill of purchase and thus, complaint is premature. However, on merits, OP-2 has denied all the allegations levelled by complainant being wrong and incorrect and asserted that there is no deficiency in service on the part of OP-2 and all the other allegations are refuted and prayed for dismissal of complaint with costs against OP-2.

6                                            Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to C-4 and then, closed the evidence.

7                                               In order to rebut the evidence of the complainant, Counsel for OP-1 tendered in evidence affidavit of Sh Harnek Singh Ex OP-1 and closed the evidence. Ld Counsel for OP-2 tendered in evidence affidavit of Onkar Singh as Ex OP-2/1 and documents Ex OP-2/2 to OP-2/4 and closed the evidence on behalf of OP-2.

8                                                             We have heard learned counsel for parties and have very carefully perused the affidavits & documents placed on the file by complainant as well as opposite party.

9                                                    The Ld Counsel for complainant contended that complainant purchased two rear tyres for his tractor from Ops in October 2013, but OP-1 did not issue the bill as complainant was having faith and good relations with OP-1. He contended that the tyres so purchased by the complainant from Ops were not proper as the material used in the tyres was faulty and there was also manufacturing defect in the tyres and due to this reason, the tyres were torn out and became flat soon. He contended that complainant contacted OP-1 and requested him to replace the tyres as the tyres were having manufacturing defect but OP-1 put off the matter on one or the other pretext and later on refused to replace the tyres though complainant visited the OP-1 number of times. He contended that act and conduct of the OPs caused harassment, wastage of time and mental agony to complainant and complainant had to file the complaint in hand and as such, complainant is also entitled to compensation on account of harassment etc and litigation expenses and as such, complaint is required to be allowed and complainant is required to be granted relief against Ops as mentioned in the complaint.

10                                    The ld Counsel for OP-1 contended that complainant never purchased tyres in question from OP-1 nor OP-1 is known to complainant and OP-1 have no relations with complainant nor complainant has given any reason as to why he had confidence in the OP-1 when OP-1 is stranger to complainant. He contended that complainant has not produced any bill of purchase of tyres on the file and OP-1 sells the tyres only on bill. He further contended that actually complainant has purchased tyres from some other shopkeeper beyond the jurisdiction of this Forum and in order to make the jurisdiction of this Forum, complainant has wrongly and falsely filed the complaint on false allegations that he has purchased tyres from OP-1, whose shop falls within the jurisdiction of this Forum. He further contended that except the evidence of shopkeeper, who simply repair the tyres, no other evidence has been brought on file by the complainant to prove the inferior quality of the tyres nor any report from the Tyre Expert has been proved on the file. He also contended that quality of tyres is assessed from the chemical test of the tyres but no such chemical test has been got conducted on the tyres of complainant from any established laboratory. He also contended that so called expert namely Raju examined by the complainant has not given his Educational Qualification nor has filed any certificate on the file to show his Practical Experience in the tyres or to point out the reason as to how the tyres were not proper and what was the manufacturing defect and had simply alleged that the material used in the tyres is of inferior quality and that is why the wear and tear of the tyres is more. He also contended that complaint itself shows that complainant is not using the tyres for agriculture purpose rather he is using the tyres for his livelihood and as such, ply the tractor on the road. He contended that tyres manufactured for tractor are meant for use in the fields and not for roads and definitely, use of tractor is also a deciding factor regarding wear and tear of the tyres and if the tyres are used on the road, then wear and tear is more than for the tyres used in the fields. He contended that complaint is totally false and is liable to be dismissed.

11                                  The ld Counsel for OP-2 contended that OP-2 is manufacturer of tyres but OP-2 never sold the tyres in question to complainant through OP-1. He also contended that OP-2/manufacturer have no commercial dealing with OP-1/shopkeeper nor OP-2 sold the tyres in question to OP-1 as OP-2 always sells the tyres on bills and no bill has been produced on the file either by the complainant or by OP-1. He further contended that otherwise also, OP-2 sold the tyres in question to Jindal Auto Store at Malout and not to OP-1 and that is why, complainant has not produced the bill on the file and in order to make the jurisdiction of this Forum, complainant has falsely alleged that tyres were purchased from OP-1. He  also contended that affidavit of Raju, alleged expert examined by the complainant, carries no value in the eyes of law as the defect has not been pointed out in the report nor it pointed out as to how the tyres were not proper and were not made of proper material and were defective. He contended that normal defects found in the tyres are mentioned in the list of defects filed by the OP-2 as Op-2/2 to OP-2/4 and report of Raju is not specific in this regard and as such, complaint is totally false and is liable to be dismissed with special costs.

12                                        After going through the record of the case, evidence and documents produced on file, this Forum finds no force in the contentions of ld counsel for complainant. First of all, there is no proof that OP-1 has sold the tyres in question to complainant. Complainant alleged that he purchased tyres from OP-1, but OP-1 has denied this fact in the reply and in this eventuality, it was for the complainant to prove the bill on the file vide which OP-1 sold the tyres to complainant, but no such bill has been brought on file. Complainant has alleged in the complaint that he did not take the bill as he had faith in OP-1, but no reason has been given by the complainant as to why he was having faith in OP-1, though OP-1 assert that complainant is just a stranger to him and he does not have any dealing with the complainant. Moreover, there is simple allegation of the complainant that tyres in question were not proper nor it was made of proper material and were defective and have manufacturing defect but no expert has been examined by the complainant to prove that the tyres were having any manufacturing defect or were made of inferior material as no analyst Report has been proved on the file by the complainant. Moreover, no reliance can be placed on the affidavit of witness Raju as his educational qualification is not mentioned in the affidavit nor it is mentioned that he had any experience in the analysis of tyres. He is simply a shopkeeper doing repair of tyres and cannot be considered as tyre expert. Moreover, no chemical analysis has been conducted on the tyres in question and only chemical analysis can state the reason that the tyres in question were not made of proper material or were defective. As such, complainant has miserably failed to prove his case on the file and to show that tyres were made of inferior material and were not proper or had any manufacturing defect or were purchased by him from OP-1.

13                              In the light of above discussion, the complaint fails and the same is hereby dismissed. However, in view of peculiar circumstances of the case, parties are left to bear their own cost. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

Announced in open Forum:

Dated: 22.01.2015

Member                 Member             President         (Parampal Kaur)           (P Singla)          (A K Mehta)

 

 

 

 

 

 

 

 

 

 

 

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