A  Rajesh, President.

          The case of the complainant is as follows:

          The complainant is the owner of a Honda City Car bearing Regn. No. KL-7BN-5566.  Before covering 6450 kms., two front tyres of his car were damaged.  One tyre burst and the other showed side bulging.   Since the vehicle was delivered by the first opposite party, the matter was brought to their notice on 07-12-2010.  They collected the defective tyres for inspection and sent it to the second opposite party, who is the manufacturers of the tyre.  Subsequently,  a tyre inspection report dated 13-12-2010 was received from the opposite parties.  In the said report, it has been stated that the case of defect as pinching of side was due to hitting in pot holes or severe contact with curb.  The reason given for the defect is not correct.  There was no occasion for hitting the tyre in pot holes or severe contact with any objects.  If the defects were due to the above said reasons, then both the front tyres would not have suffered the very same defect.  The said wall bulging of the tyres within a short period from the date of purchase is due to the supply of inferior quality tyres or due to the manufacturing defect.  It is also very pertinent to note that the normal life time of a tyre is 25000 kms.  Due to the defects of the tyres, the complainant was compelled to purchase two tyres for Rs. 4,500/- each.  He had suffered severe mental agony also.   The complainant is entitled  to get Rs. 9,000/- which he had spent for purchasing new  tyres.  He is also entitled for Rs. 5,000/- as compensation for the mental agony and hardships suffered by him due to the defect of the brand new tyres.  Hence this complaint.

          2. Version of  the 1^st opposite party.

          The tyres that were fitted to the vehicle are the tyres as provided by  the manufacturer of the car namely M/s. Honda Siel Cars India Ltd.  The 1^st opposite party is only a dealer of the manufacturer.  The 1^st opposite party is not   a necessary party to the proceedings.  As and when the 1^st opposite party received the complaint from the complainant, the tyres had been forwarded to the 2^nd opposite party for their inspection and necessary action.  The 2^nd opposite party had retuned the tyres along both the inspection reports dated 13-12-2010 stating that the tyres were free from manufacturing defect.  There is no deficiency in service on the part of the  1^st opposite party.

          3.  Though the 2^nd opposite party received notice of this complaint, they remain absent during the proceedings for reasons of their own.  No oral evidence was adduced by the parties.  Exts. A1 and A2 were marked on the side of the complainant.  Heard the counsel for the complainant and the 1^st opposite party.

          4.  The points that came up for consideration are.

          i. Whether the complainant is entitled to get the  price of the tyres from the opposite parties?

          ii. Compensation and costs of the proceedings

          5. Point No. i.  Admittedly the complainant approached the 1^st opposite party with the defective tyres who is the dealer of the manufacturer.  The 1^st opposite party forwarded the defective tyres to the 2^nd opposite party the manufacturer of the tyres.  The 2^nd opposite party rejected the claim of the complainant stating that the tyres are free from any manufacturing defects evident from Ext. A2 tyre inspection report.   They took a contention that “cut on side wall, run flat due to pinching of side wall due to hitting  potholes or severe contact with curb”.  Since the 2^nd opposite party is sticking to the above averment it is their duty to prove the same wherein they have failed.  The 2^nd opposite party has not taken any steps to substantiate the findings in Ext. A2.

          6. The Hon’ble National Consumer Disputes Redressal Commission in MRF Limited Vs. Sandipan Kishn Rao Desh Mukh & Anr. (1) 2008 CPJ 165NC held in para 3 as follows:

          “Submission advanced by Ms. Surekha Raman for the petitioner is that the tyre in question did not have manufacturing defect nor was that proved by respondent No. 1.  Respondent No. 1 also did not produce the tyre before the District Forum.  In support of further submission that damage to the tyre was due to concussion she has invited our attention to the report of Amar Dev Banerjee at page 28.  In our view, non-production of tyre before the District Forum by respondent No. 1 was not fatal as the report at page 28 was given by Mr. Banerjee on inspection thereof.  Tyre in question was within warranty period at the time of the damage was caused.  We are of the opinion that having raised the plea in written version that damage to the tyre was due to concussion it was for the petitioner to have proved this plea.  It is not in dispute that affidavit of Amar Dev Banerjee, Sales Executive of the petitioner company who examined the tyre was not filed by way of evidence to prove the report at page 28.  In this backdrop, we do not find any illegality or jurisdictional error in the orders passed by Fora  below calling for interference in revisional jurisdiction under Section21(b)  of the Consumer Protection Act, 1986 Revision is, therefore, dismissed.”

          7. In view of the above we are only to hold that the 2^nd opposite party is liable to  the price of the tyres to the complainant.  According to the   Hon’ble National Commission in  Soni Ericson Vs. Ashish Agarwal (IV) 2007  CPJ 294 (NC) a frustrated consumer  is entitled to get refund of the price of the gadget.  Which goes only to affirm our findings that a consumer shall not only be  left empty handed but shall also be embolished in his cause.   Therefore the complainant is entitled to get refund of the price of the tyres  under  dispute. 

8. Point No. ii. The complainant has had to suffer unnecessary mental agony due to a seemingly unneeded litigation which necessarily calls for compensation, which we feel if the 2^nd  opposite party as of such stature in the public eye had taken notice of could have been avoided.  We fix it at Rs.  2,000/-.  Costs essentially are called for  reasons stated above.  We fix it exemplary   as Rs. 1,000/-.

9. . In the result, we  allow the complaint and direct that

i. the 2^nd opposite party shall refund the price of the tyres to the complainant.  In that event the complainant shall return the defective tyres to the 2^nd  opposite party  simultaneously.

ii.  The  2^nd opposite party shall  pay Rs. 2,000/- to the complainant by way of compensation and Rs. 1,000/- to the complainant being the costs of the proceedings.

          The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order failing which the above amounts shall carry inter @ 12% p.a. till realization.  

                    Pronounced in the open Forum on this the 22^nd day of  July 2011.