COMPLAINT FILED ON: 25.03.2009

DISPOSED ON:19.01.2012

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

19^th DAY OF JANUARY-2012

  PRESENT:-  SRI. B.S. REDDY                      PRESIDENT

                      SRI. A. MUNIYAPPA                     MEMBER

COMPLAINT No.697/2009

O R D E R S

SRI. B.S. REDDY, PRESIDENT

The complainant filed this complaint U/s.12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Parties (herein after called as O.Ps.) to pay sum of Rs.60,000/- towards the loss of earnings, Rs.50,000/- towards compensation for mental agony, Rs.1,36,000/-towards tyres replacement on the allegation of deficiency in service.

  2. The case of the complainant to be stated in brief is that:

        The complainant is driver by profession, eak-out his livelihood of the earning from the lorry to bearing No.KA-08-7979. OP1 is the Senior Manger of M/s Sundaram Motors Private Limited, OP3 is the Sales Manager of M/s Ashoka Leyland and 2^nd OP is the Production Company and Marketing Services and 4^th OP is the Tyre Manufacturing Company. The complaisant purchased lorry bearing registration No.KA-08-7979 from M/s Sundaram Motors Private Limited on 31.03.2008 and delivered on 04.04.2008 his friends also purchased other three trucks on the same day. The complainant’s vehicle got serviced as per the specifications and guidelines of service book, and in every service he had complained of wear out of all the ten tyres fitted by the OP2 to the vehicle at the time of delivery of vehicle stated above. All the ten tyres fitted to the said vehicle were worn out within 24950 kilometers. The complainant complained to the OP1 to 3 through his letter dt.10.09.2008, 17.09.2008 and 30.09.2008 and orally on number of occasions. On all the occasions, OP received that they will replace the tyres but so far OPs have not replaced the tyres. Finally, OPs assured that they will replace all the 10 tyres, the complainant left the vehicle for replacement of tyres on 13.09.2008 at the service station sundaram Motors, Tumkur Road at Bangalore. OPs have not replaced the tyres and the vehicle was lying in the service station from 13.09.2008 and the same was delivered to the complainant on 02.12.2008. The other vehicles purchased along with the above said vehicle of the complainant are running at 65000 Kms and tyres are still under running condition. The tyres have to give life to an extent of 70 to 75 thousand kilometers. The tyres fitted to this vehicle have worn out at 25950 kilometers. The complainant got retread for two tyres and said two retread tyres were also worn out within 9000 kilometers. The tyres wear out is due to manufacturing defect of vehicle as per the assessment of the OPs. OPs noticed that there is a defect in alignment of axels and suspension system and OPs have promised to rectify the same and replace all the ten tyres. There is no mistake on the part of the complainant in using the vehicle and in maintaining the same due to the mechanical defect in wheel alignment and axle have the depth of 6 to 7 MM the tyres were wear out and as per the promise of the OPs the complainant left his vehicle for replacement of tyres on 13.09.2008and the same is lying with the service station M/s Sundaram Motors, for a period of 30 days and have not delivered the vehicle to the complainant by replacing the tyres. The complainant has incurred loss of earnings of Rs.2,000/- per day, totally Rs.60,000/-, Rs.1,36,000/- towards tyres replacement charges, Rs.1,000/-towards litigation charges and Rs.50,000/- compensation for mental agony, hardship and in total OPs to pay Rs.2,56,000/- to the complainant. The complainant got issued legal notice dt.17.10.2008 to OPs and OPs got issued reply notice admitting that there was a difference in wheel alignment and Axle and after wear out the tyres the wheel alignment of axle was rectified and due to the defect of wheel alignment of axle the tyres were wear out. During lying of the lorry at the service station the complainant had no income and not paid the instalment to the Reliance capital finance, notice has been issued to the complainant for payment. Hence this complaint.

3. On appearance, the OPs 1 and 2 filed separate version with similar contentions and OP3 adopted version filed by OP2. It is contended that the complainant does not fall within the definition of the ‘Consumer’ as defined Under Secito-2(d) of Consumer Protection Act. The transaction admittedly amounts to ‘Commercial purpose’; the complaint is liable to be dismissed. OP1 is not at all a necessary party to the complaint OPs are only dealers of the vehicles manufactured by M/s Ashoka Leyland Truck Limited, the defects relating to the tyres have to be attended only by the Manufacturer of the tyres. The vehicle sold to the complainant had tyres manufactured by M/s Apollo Tyres Limited, who have issued warranty policy. On a complaint made by the complainant during September-2008, the tyres fitted to the vehicles were inspected by the manufacturers M/s Apollo tyres Limited, and submitted report stating that cause of wear was “Due to over inflation in the tyres” and this was the technical finding given by the inspector Mr.Avinash. Since, the inspector found no manufacturing defect, the request for replacement of the tyres was rightly rejected. The reference made to the mechanical defect in wheel alignment in para-7 of the complaint was as a result of an accident caused by the driver of the vehicle when vehicle hit rock as a result one tyre burst and in these circumstances, the two axles got dislocated. It was not due to any manufacturing defect as alleged. The losses suffered by the complainant if any is solely due to the improper maintenance of the vehicle. The complainant came to service center at Peenya and left the vehicle and refused to take delivery in spite of sending reminders both oral and writing and the complainant realizing that the pressure tactics would not work, took delivery of the truck back from the OPs service centre. The claim that the complainant has suffered mental agony financial loss etc is only a false statement made for the purpose of making illegal gains. Hence it is prayed to dismiss the complaint.

4.OP4 filed version contending that the complaint is not maintainable against this OP, as the complainant has not produced any evidence/report of an expert on record to prove that the tyres in question were suffering from any manufacturing defect. The technical service in charge of the OP did not find any defect in the alleged tyre. The Forum if deems fit may appoint any expert for inspection of the alleged tyre to find out the cause of defect. It is denied that the tyre of Apollo Brand fitted with the vehicle of the complainant was damaged due to manufacturing defect, as no such tyre was ever produced with this OP for technical inspection. It is incorrect that any alleged tyre of this OP got damaged and burst in ordinary circumstances running after 25950 KM of it’s fitment due to any manufacturing defect. It is stated that mileage of any tyre depends upon the running conditions and it may vary from tyre to tyre. It is denied that the complainant’s vehicle was standing idle or he suffered alleged loss on account of answering OP. Further, it is denied that complainant suffered any mental agony, hardship on account of this OP or he is entitled for any compensation as alleged. This OP is not liable to pay any damage, compensation or loss to the complainant. It is also denied that this Op is deficient or negligent in service. Hence, it is prayed to dismiss the complaint with costs.

5.   After amending the complainant, Ops filed additional version.

6.   The complainant produced invoice dt.19.12.2008 to show that 10 tires are purchased from Maruthi Enterprises for Rs.1,41,500/-. In the said invoice the tire numbers are not mentioned.

7.   OP2 filed Memo on 05.08.2010 with original quotation issued by Maruthi Enterprises stating that the tax invoice produced by the complainant dt.19.12.2008 is created in order to substantiate the fabricated claim made by the complainant. The tyre numbers are necessary to be mentioned in all transaction when the tyres are sold by the Dealers.

8.   In order to substantiate the complaint averments, the complainant filed affidavit evidence and additional affidavit evidence.

The Deputy Manager (service) of Sundaram Motors of OP1 filed affidavit evidence in support of the defence version. The Area Service Manager of OP2 filed affidavit evidence. The Group Manager –Legal and Constituted Attorney of OP4 filed affidavit evidence along with version.

9.   Arguments on both sides heard.

10.         Points that arise for our consideration are:

       Point No.1:- Whether the complainant has proved          

                           the deficiency in service on the part of

                            the OPs?

Point No.2:- If so, whether the complainant is

                   entitled for the reliefs now claimed?

       Point No.3:- To what Order?

11. We record our findings on the above points:

Point No.1:- Negative

               Point No.2:-. Negative

               Point No.3:- As per final Order.

R E A S O N S

12.   At the outset it is not in dispute that the complainant purchased M/s Ashoka Leyland truck of 6 wheeler on 31.03.2008 from OP1 M/s Sundaram Motors Private Limited and the same was delivered to him on 04.04.2008. The vehicle purchased bears registration No.KA 08-3769. The complainant claims that the tyres fitted to the said vehicle were worn out within 25,950 kilometers and the same was complained to OP1 to 3 through letters dt.10.09.2008, 17.09.2008 and 30.09.2008. Though the Ops assured that they will replace the tyres immediately but so far the tyres are not replaced. Finally, Ops promised to replace all the 10 tyres. Accordingly, the vehicle was left for replacement of the tyres on 13.09.2008 at the service station M/s Sundaram Motors, but without replacing the tyres the vehicle was delivered to the complainant on 02.12.2008. It is stated that the tyres have to give life to an extent of 70 to 75 thousand Kms but the tyres fitted to this vehicle have worn out at 25950 kilometers. It is contended that the tyres wear out is due to manufacturing defect of the vehicle as there was a defect in alignment of axle and suspension system, in the reply notice dt.03.11.2008 Ops have admitted that there was a difference in the wheel alignment and axel. After wear out the tyres, the wheel alignment and axel was rectified by Ops. Thus the supply of vehicle with defective wheel alignment and axel caused wear out the tyres, the same is deficiency in service on the part of the Ops 1 to 3.

13.   At the time of filing the complaint M/s J.K.Tyres Private Limited was made as Op No.4. During the pendency of the proceedings, M/s J.K. tyres Private Limited was deleted and the present OP4 M/s Apollo tyres was impleaded, as the tyres fitted to the vehicle of the complainant are manufactured by OP4. It is not the case of the complainant that there was any manufacturing defect in the tyres fitted to the vehicle and no relief is claimed against OP4.

14.   As per Annexure-D the letter dt.10.09.2008 addressed by Dada Auto Diesel Works to OP1 Sundaram Motors, the vehicle of the complainant was sent to OP1 with a request to rectify the problem, as the complainant reported that all 10 tyres wear of his vehicle. Annexure-E is the letter dt.17.09.2008 submitted by the complainant to OP2 complaining tyre wear of his vehicle. OP1 has produced the repot of the Inspector of OP4 dt.25.09.2008 for having examined the tyres for the complaint of fast wear and as per that report the cause for the fast wear of the tyres is due to over inflation in the tyres.

15.   The reply notice dt.03.11.2008 got issued by OP2 reveals that the reason for tyre wear is due to over inflation of tyres up to 130 psi in rear and 120 psi in front. This results in center wear of tyres. The tyres were referred to the supplier who also confirmed that faster center wear is due to over inflation. Fast wearing of tyres due to improper maintenance of tyre pressure. It is stated that the vehicle was brought to service provider on 21.09.2008 and the service provider noticed skewing of drive axle. This was rectified by them and the vehicle was made ready on 25.09.2008 and the complainant was informed on 01.10.2008. The problems faced by the complainant are due to non-maintenance of the vehicle, eg. improper tyre pressure maintenance.

16.   Merely because in the reply notice, it is stated that the vehicle was brought to service provider on 21.09.2008 and the service provider noticed skewing of drive axel and the same was rectified, it cannot be presumed that at the time of purchasing the vehicle the said defect was there and Ops supplied vehicle with the mechanical defect in wheel alignment and axel. There is no any expert opinion with regard to the fast wear of tyres is due to any mechanical defect in wheel alignment. The tyres which were worn out are not preserved by the complainant to get opinion of any expert on examining the same. As per reply letter dt.17.09.2008 by Op2 to the complainant’s letter dt.17.09.2008 it is stated that at the time of investigation they noticed that one of the OE tyres had burst, suspected due to stone hit. The same was fitted in spare position and was in deflated condition. The original tyres make Apollo at the rear axle one pair on drive axle on rear Right hand side was noticed to have a depth of 6 to 7 mm tread material and they have reset the Perpendicularity of the axles and have corrected the same to the specifications. In their opinion the wear is attributable to operational reasons and seems to be quite reasonable considering the usage of the vehicle and there is no manufacturing defect involved. On the basis of the materials placed by Ops. We are unable to accept that the tyres were wear out because of mechanical defect in wheel alignment and axle and with that mechanical defect the vehicle was supplied to the complainant. Under these circumstances, we are of the view that there is no any deficiency in service on the part of the Ops. The complainant is not entitled for any of the relief’s claimed. The complaint is devoid of merits. Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainant is dismissed.  Considering the nature of dispute no order as to costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 19^th day of January 2011.)

 MEMBER                                                        PRESIDENT

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