BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.
Complaint No: 56 of 22.01.2015.
Date of Decision: 22.07.2015
Dr. Sat Bhushan Pandhi son of Sh. A.K. Pandhi, Press Secretary, Akhil Bhartiya Grahak Panchayat Regd. Punjab Unit and member District Consumer Protection Council, Government of Punjab, Resident of 50, Partap Colony, Model Gram, Ludhiana.
.… Complainant
Versus
1. M/s. Wheel Care Point, B-XX-753/2965, Gurdev Nagar, Malhar Road, Ludhiana.
2. The Managing Director, YOKOHAMA India Pvt. Ltd., Regd. Office-A-370, Second Floor, Kalkaji, New Delhi-110019.
…..Opposite parties
COMPLAINT UNDER SECTION 12 OF THE
CONSUMER PROTECTION ACT, 1986.
Quorum: Sh.R.L.Ahuja, President
Sh.Sat Paul Garg, Member
Present: Sh. P. Lall, Advocate for complainant.
Opposite party No.1 exparte.
Sh. G.S. Shera, Advocate for OP2.
ORDER
(SAT PAUL GARG, MEMBER)
1. Present complaint under Section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed Dr. Sat Bhushan Pandhi son of Sh. A.K. Pandhi, Press Secretary, Akhil Bhartiya Grahak Panchayat Regd. Punjab Unit and member District Consumer Protection Council, Government of Punjab, Resident of 50, Partap Colony, Model Gram, Ludhiana (herein-after in short to be referred as ‘complainant’) against M/s. Wheel Care Point, B-XX-753/2965, Gurdev Nagar, Malhar Road, Ludhiana etc. (herein-after in short to be referred as ‘OPs’)- with a prayer to issue directions to the OPs to replace the defective tyres or to refund Rs.28,000/- to the complainant with interest @ 18% from 02.05.2013 and also to direct both OPs jointly and severally to remove the defect in their services towards the complainant.
2. Brief facts of the complaint are that the complainant purchased four tubeless tyres 205.55.16 YOKOHAMA for a total amount of Rs.28,000/- against cash memo No.28 dated 02.05.2013. On February 17, 2014 while getting ready for going to Delhi, the complainant noticed a tyre having bulged out. Accordingly, the complainant visited the showroom of OP1 who after examining the tyre of the car found that there was a manufacturing defect in the tyres. The complainant contacted Mr. Gaurav of OP2 who instructed Mr. Daksh of OP1 to replace all the four tyres of the car of complainant with service tyres so that the complainant could go to Delhi without any fear of injury and tension. As only two service tyres were available with OP1, so they replaced two defective tyres with service tyres and requested the complainant to wait till OP2 sends him all the four new tyres for final replacement but the complainant did not receive any response from OP1. On 08.06.2014, in response to request of Mr. Daksh of OP1, Mr. Ankit Bhandula of OP2 directed OP1 to replace all the four tyres but no action was taken by OP1 even after sending reminders and letter. Under compelling circumstances, the complainant was forced to purchase two tyres of Rs.15,000/- from OP1 on 19.09.2014 so that he could utilize his car for his use. Thus, claiming the above act as deficiency in service on the part of the OPs, the complainant has filed this complaint.
3. Upon notice, OP1 failed to put in appearance despite proper service of notice and was proceeded against exparte vide order dated 15.04.2015. However, OP2 appeared and filed written statement taking preliminary objections that the present complaint is not maintainable as per Section 2(1) (r) of C.P. Act. Since the tyres of the vehicle supplied by OP1, were not having any manufacturing defect and there was no deficiency in service on the part of the OPs. Moreover, the tyres were not covered under warranty policy of YOKOHAMA India. The tyres in question had a bulge on the side of wall due to bad distortion or pinching between object and tyre and hard hit against the object and low inflation pressure. The tyres in question were duly inspected and verified by the mechanic/Enggs. of the OP and found that there is no manufacturing defect; that the complainant does not fall within definition of consumer as per Section 2(1) (d) of C.P. Act. On merits, denied all the contents of corresponding paras of complaint and prayed for dismissal of complaint.
4. Evidence was adduced by the complainant by way of duly sworn affidavit of Dr. Sat Bhushan Pandhi, Ex. CA, wherein same facts have been reiterated as of the complaint and attached documents Ex. C1 to Ex. C15 and closed his evidence. On the other hand, evidence was adduced by OP2 by way of duly sworn affidavit of Ankit Bhandula, Distt. Assistant Sales Manager of YOKOHAMA India Pvt. Ltd., Ex. RA, wherein again same facts have been reiterated as mentioned in written statement and attached documents Ex. R1 to Ex. R5 and closed the evidence of OP2.
5. The case was fixed for arguments. Ld. counsel for complainant orally argued that the complainant purchased four tubeless tyres of YOKOHAMA India for a total amount of Rs.28,000/- from OP1 and there is a hand written warranty Annexure-C1, which was given by OP1 under the signature of Mr. Daksh. After a short span of time, while getting ready for going to Delhi, the complainant noticed the tyre bulged out, who approached OPs and brought into their notice the defect caused to tyre. It is so surprising that how all the four tyres got damaged. If as alleged by the OPs, there was any negligent driving on the part of the complainant, one or two tyres would have damaged but not all four. So the defence taken by the OP that there must have been negligent driving is not tenable, rather it is beyond comprehension of a common man. The counsel for the complainant also relied upon citation General Motors (India) Private Limited Vs Ashok Ramnik Lal Tolat (SC), 2014(6) Recent Apex Judgments (R.A.J.) 96 wherein Hon’ble Supreme Court held as under:-
“A. Consumer Protection Act, 1986, Section 2(1) (r) and 12- An ordinary passenger car sold as SUN vehicle for Rs.4 Lakhs- It is unfair trade practice- Car company directed to refund the price paid by Consumer as detailed below:-
(i)Vehicle was used by the petitioner for a period of about one year and it has run approximately 14,000 kms.
(ii)National Commission directed the Car company refund Rs.12.50 lakhs and also pay Rs.5 Lakhs as damages. Order of National Commission upheld to the extend of refund of Rs.12.50 Lakhs- Direction with regard to damages set aside- No such relief was claimed by petitioner.”
6. Refuting the charges of the complainant, learned counsel for OP2 filed written arguments contending that the onus to prove the manufacturing defect in the tyres was on the complainant and he failed to discharge the onus and failed to lead any cogent evidence. The complainant has not even tried to get the report from the technical expert or got tested the tyres in any authorized Laboratory. He failed to examine any expert to prove on the file that there is manufacturing defect in the tyres purchased by the complainant. No document is forthcoming from the side of the complainant to prove that fact. However on the other hand the tyres in question were duly inspected and verified by mechanic/Enggs. of OP2 and found that there is no manufacturing defect and the tyres in question, bulge at the side wall due to carcass cord broken up at side wall due to bad distortion or pinching between object and tyre and hard hit against the object and low inflation pressure. The claim submitted by complainant is not covered under the warranty policy of the Yokohama India i.e. OP2. The complainant failed to produce any valid warranty card before the Hon’ble Court at the time of leading evidence. The alleged guarantee card i.e. Ex. C2 is forged and fabricated document manipulated by the complainant in connivance with OP1 and without any date procured afterward. The alleged guarantee is not signed by any authorized person of OP2. Mr. Daksh was not the employee of OP2 and he was never authorized by OP2 to assure the complainant to purchase the Yokohama tyre with guarantee of three year for any manufacturing defect if found later on and to sign any hand written guarantee as alleged. The alleged guarantee or warranty is not valid document as per rules and regulations of the OP2. The claim of the complainant was rightly rejected. The complaint is liable to be dismissed.
7. We have gone through the pleadings of complainant and also perused the entire record placed on file.
8. It is evident that the tyres were purchased by the complainant on 02.03.2015 and a cash memo No.28 was issued to this effect along with a hand written warranty by OP1 duly signed by Mr. Daksh, Authorized signatory of OP2.The refutation of the complainant that there was no expert opinion that there was any manufacturing defect or the tyres have actually gone defective, is not tenable especially there placed Ex. R2, which is a report of OP2 itself. The reason of damage to the tyres was mentioned to be a bulge on the side of wall due to bad distortion or pinching between object and tyre and hard hit against the object and low inflation pressure. So how could the OP allege that no expert opinion was taken. Vide this Ex. R2, OPs have rejected the claim of the complainant in spite of fact that the claim was within warranty as issued by OP2.
9. In view of above discussion, the present complaint is allowed and OPs is directed to replace the defective tyres with new ones. Though OP1 was proceeded against exparte but he cannot escape from its liability because he has sold the tyres to the complainant and must have taken some profit out of it, as such, both the OPs are jointly and severally are liable to pay compensation of Rs.10,000/- to the complainant assessed as compensation and litigation expenses. Order be complied within 30 days from the date of receipt of certified copies of order. Certified copy of order be supplied to parties free of costs. File be consigned to record room.
(S.P.Garg) (R.L.Ahuja)
Member President
Announced in Open Forum.
Dated:22.07.2015
Gobind Ram
