BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE

                                                                    Dated this the 31^st August 2009

COMPLAINT NO.40/2009

(Admitted on 20.02.2009)

PRESENT:              1. Smt. Asha Shetty, B.A. L.L.B., President                                                                                                                                                                                                                                                                                                                                   

                                                                                2. Sri. K. Ramachandra, Member

BETWEEN:

Mr.Santhosh Kumar Shetty,

Aged 32 years,

So. Ananda Shetty,

Ro. Shanthi Nikethan,

Bolpugudde Mary Hill,

Kavoor Post,

Mangalore  575 008.                          …….. COMPLAINANT

(Advocate for the Complainant: Sri.M.R. Ballal).

          VERSUS

1. Ms. Arvind Motors Pvt. Ltd.,

Balmatta Road, Hampankatte,

Mangalore 1, by its

Managing Director.

(Advocate for Opposite Party No.1: Sri.M.V.Shankar Bhat).

2. CEAT Limited,

Registered Office:463,

Dr.Annie Besant Road,

Mumbai – 400 030.

By its Managing Director.

(Advocate for Opposite Party No.2: Sri.P.K.Venkatesh Prasad).

3. CEAT Limited,

C/o. Prem Complex,

C & FORA  Agency,

C/o. Laxmi Trading Services,

SF No.2/1 & 2/2, Prem Complex,

Mary Hill, Kavoor Post,

Mangalore – 8, by its

Authorized Signatory/C & F Agent.

         ……. OPPOSITE PARTIES

(Opposite Party No.3: Exparte)

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging defect in goods against the Opposite Parties claiming certain reliefs. 

          It is submitted that the Complainant purchased SFC 407 truck i.e., SFC 407/31 EX CAB AND LOAD BODY FITTED WITH 4097 SP TURBO BSII ENGINE, GBS 18 GEAR BOX, 7 numbers 7.00 X 16 12PR NYLON T6YRES, 7 numbers 6.00 X 16 WHEEL RIMS, 3100 MM W.B. on 31.10.2008 vide invoice No.ArvinM-0809-01382, receipt No.ArvinM-RCT-0809-002974 from the 1^st Opposite Party on payment of sum of Rs.5,50,889/-.  The seven tyres fitted/ delivered with the same are bearing No.N258404208, N2479544108, N164594208, N251004208, N205554108, N245334108 and N164384208.  It is submitted that the above said vehicle purchased by availing loan facility and it has been hypothecated to State Bank of India.

          It is further submitted that the Complainant had got the body built at Baikampady, Mangalore and after building the body the vehicle was delivered on 21.11.2008.  On its journey for supply of water on 26.11.2008, the front left hand side tyre had burst at thread area which was immediately brought to the knowledge of the 1^st Opposite Party.  As advised by the Opposite Party the Complainant had completed the journey by changing the same with the spare tyre and brought the vehicle along with burst tyre to the branch of the 1^st Opposite Party on the next day i.e., 27.11.2008.  On the inspection by the official of the 1^st Opposite Party they noticed that all the tyres had crack at same area and requested the Complainant to approach 3^rd Opposite Party for replacement with all new tyres.  On the same day Complainant approached the 3^rd Opposite Party and the officials convinced as to the same and after retaining the burst tyre advised to use the vehicle till the replacement is sanctioned. They had prepared job order bearing Sl. No.387 which was sent along with the vehicle to the 3^rd Opposite Party.  The 3^rd Opposite Party not sent any information for replacement of the tyre on 4.12.2008 issued a letter refusing to replace with new tyres. 

          It is submitted that vehicle had run not more than 300 kms., after its delivery all the tyres supplied could not have cracks at the same area, the same was on account of manufacturing defect or of bad quality.  Since they refused to replace the defective tyres the Complainant issued a    lawyers’ notice dated 21.12.2008 to the Opposite Party No.1 and 2 but the Opposite Parties not complied the demand made therein. 

          It is submitted the vehicle is not in a position to put the vehicle into use or to use the vehicle for long distance for want of spare tyre.  It is submitted that after the delivery the vehicle is run for not more than 2000 kms., and by now all the tyres have extraordinary wore-out.  It is submitted that the vehicle was purchased by availing loan for carrying 14% interest and repayable in monthly installments of Rs.13,600/- and he is loosing business on account of taking up long trips.  The present value of the seven brand new tyres for the vehicle is more than Rs.45,000/- which the Complainant unable to pay.  It is contended that all the seven tyres supplied by the Opposite Parties are of low quality and having manufacturing defect and hence filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to replace the seven tyres with new defect free tyres with extended guarantee or to pay the cost of seven tyres and also pay Rs.60,000/- as compensation and cost of the litigation expenses.

2.       Version notice served to the Opposite Parties by RPAD.  Opposite Party No.1 and 2 appeared through their counsel filed separate version. 

Opposite Party No.1 submitted that the Complainant is using the vehicle for commercial purpose.  There is no self employment involved in the use of the vehicle by the Complainant hence the complaint is not maintainable.  And on the other hand it is contended that this Opposite Party sold the truck to the Complainant.  The Complainant could approach this Opposite Party only as a dealer of Telco.  Telco does not give warranty in respect of parts not manufactured by it, but used in its vehicle, such as tyre, battery etc.  This Opposite Party had delivered the vehicle to the Complainant with the original tyres fitted to it, intact and contended that there is no deficiency.

          It is further submitted that on 31.10.2008 the Complainant took delivery of the vehicle and on 27.11.2008 brought the vehicle with the complaint of bursting of a tyre. This Opposite Party prepared job order dated 27.11.2008 and referred the problem to the tyre dealer.  This Opposite Party gave prompt service and there is no co-commitment for service after sale.  If there is any claim covered by warranty, then as a dealer of Telco i.e., this Opposite Party has to forward it to the manufacturer and contended that there is no deficiency as far as this Opposite Party is concerned. 

          As far as Opposite Party No.2 is concerned, the Complainant is using the vehicle for business purpose and is not a consumer and contended that there is no manufacturing defect as stated by the Complainant.  It is submitted that the tyre and tubes are returned to this Opposite Party through its dealers.  The items under complaint are examined by this Opposite Party through technical personnel.  The technical service engineer of this Opposite Party found that there was no manufacturing defect in the said tyres, as the said tyre was failed due to “cuts on tread”, which is a technical terminology used in the tyre trade to describe a failure arising on account of non-manufacturing defect resulting in damage/failure to the tyre and the same has been communicated to Opposite Party No.1 through letter dated 4.12.2008.

It is further submitted that there are several factors which eventually influence the performance of a tyre i.e., (i) mechanical condition and/or irregularities of the vehicle; (ii) proper maintenance of the tyres; (iii) road conditions; (iv) driving habits; (v) speed; (vi) nature of the terrain i.e., level ground, hilly and/or winding roads; (vii) the season of the year when the tyre was used; (viii) position of the tyre on the vehicle and  (ix) inflation/ pressure and external object with which the tyre may come in contact while in motion.  It is submitted that in the present case this Opposite Party arrived at the finding that the tyres under complaint had failed on account of “cuts on tread” which is not a manufacturing defect and is on account of the negligence of the Complainant or his agent and submitted that there is no deficiency or manufacturing defect as stated by the Complainant and prayed for dismissal of the complaint.     

Opposite Party No.3 despite of serving notice neither appeared nor contested the case till this date.  Therefore we have proceeded exparte as against the Opposite Party No.3.  The acknowledgement placed before the FORA marked as court document No.1.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant is a consumer?

2. Whether the Complainant proves that the tyres fitted to the truck is suffering from manufacturing defects or has any problems?

3.  Whether the Opposite Parties committed deficiency in service?

4. If so, whether the Complainant is entitled for the reliefs claimed?

5. What order?

4.         In support of the complaint, Sri.Santhosh Kumar Shetty (CW1) filed affidavit reiterating what has been stated in the complaint and got marked Ex C1 to C11 as listed in the annexure.   One Sri.A.Govind Bhat (RW1), Authorized General Manager of the 1^st Opposite Party filed counter affidavit and answered the interrogatories served on him.  One Sri.H.Raja Ram Rao (RW2) – working as Commercial Manager at Bangalore branch of the Opposite Party No.2 and one Sri.Girish (RW3) – Technical Service of the Opposite Party No.2 filed counter affidavits but not answered the interrogatories served on them.  Ex R1 was marked for the Opposite Party No.2 as listed in the annexure.   The Complainant and Opposite Party No.1 produced notes of arguments along with citations.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:                         

          Point No.(i): Affirmative.

          Point No.(ii) to (v): As per the final order.

Reasons

5.  Point No. (i):

The 1^st plea taken by the Opposite Parties is that, the Complainant is not a consumer, the vehicle used by the Complainant is for the commercial purpose and there is no self employment involved in the use of the vehicle.  Admittedly the truck was purchased by the Complainant on 31.10.2008.  On 26.11.2008 the front left hand side tyre had burst at tread area and rest of the tyres had a crack at the same area, the above defects on the tyres found within the warranty period and the Complainant filed a affidavit stating that the vehicle has been used by way of self employment.  When the defect is found within the warranty period and the vehicle has been used for the self employment by the Complainant, the Complainant is a consumer within the purview of Section 2(1)(d) of the Consumer Protection Act.

          This point has been elaborated in the following judgment i.e., Gujarat State Consumer Disputes Redressal Commission, Ahmedabad: I (2006) CPJ 369: in Mahindra and Mahindra Limited and Another versus Morwal Brother Private Limited; held that:-

          Consumer Protection Act, 1986 -  Section 2(1)(d) – Consumer – Vehicle defective during warranty – Complainant consumer even if purchase was for commercial purpose – Deficiency in service proved – compensation granted with interest – cost awarded.

                                              {Page 371 (Paras 5 to 7)}

 Similarly in the given case the Complainant is a consumer and the complaint is maintainable. 

Point No.(ii) to (v):

In the instant case, the Complainant disputed that the tyres fitted to the truck which was purchased by him from the 1^st Opposite Party is not of the standard quality suffering from manufacturing defect.

  The allegations of the Complainant proved by way of oral as well as documentary evidence placed before us.

  The Ex C1 is the tax invoice issued by the Opposite Party No.1, wherein it is proved that on 31.10.2008 the Complainant purchased the SFC 407 truck i.e., SFC 407/31 EX CAB AND LOAD BODY FITTED WITH 4097 SP TURBO BSII ENGINE, GBS 18 GEAR BOX, 7 numbers 7.00 X 16 12PR NYLON T6YRES, 7 numbers 6.00 X 16 WHEEL RIMS, 3100 MM W.B. on 31.10.2008 vide invoice No.ArvinM-0809-01382, receipt No.ArvinM-RCT-0809-002974 on payment of Rs.5,50,889/-.  The above said truck fitted with 6 tyres to the chassis and one spare tyre provided along with the chassis.  The allegation of the Complainant is that after the construction of the body the vehicle was delivered to the Complainant on 21.11.2008.  On its journey on 26.11.2008 the front left hand side tyre fitted to the vehicle had burst at tread area which was brought to the notice of 1^st Opposite Party and the 1^st Opposite Party advised to complete the journey by changing the same with new spare tyre and brought the vehicle to 1^st Opposite Party on 27.11.2008.  The officials of the 1^st Opposite Party noted all the tyres had crack at same area and issued a job order (as per Ex C3) and it is contended that the tyres fitted to the chassis is not of the standard quality and has manufacturing defect. 

On careful scrutiny of the job order i.e., Ex C3 it is proved beyond doubt that on 27.11.2008 the vehicle was brought to the 1^st Opposite Party, at that time the vehicle was covered by 1,320 kms., from the date of purchase.  The technical personnel of the dealer inspected the tyre and noted as follows:-

“Fr. LHS Tyre cracked at tread area (all tyre are crack at same area)”. 

From the above job order one can see that the vehicle in question is a new vehicle purchased on 31.10.2008 within a month i.e., after running 1,320 kms., the tyres fitted to the chassis of the truck noticed that all the tyres are cracked at same area that itself shows the quality of the tyre.  No doubt the Opposite Party No.2 i.e., CEAT Limited Company contended that it is because of the negligence of the Complainant the tyres are cracked there is no manufacturing defects and vehemently contended that after receipt of the complaint the technical service engineer of the Opposite Party was inspected and on examination it has found that there was no manufacturing defect in the said tyres, as the said tyre was failed due to CUTS ON TREAD which is a technical terminology used in the tyre trade to describe a failure arising on account of non-manufacturing defect resulting in damage/failure to the tyre and filed affidavit of the technical service engineer who had examined the tyre before this FORA.  Except the self-serving affidavit of the technical service engineer no findings of the alleged inspection, the date of inspection, the type of examination of the tyre or any other material placed before this FORA in order to show that the said tyres having no manufacturing defect. 

And further the Opposite Party No.2 CEAT Limited Company contended that there are several factors which eventually influence the performance of a tyre i.e., (i) mechanical condition and/or irregularities of the vehicle; (ii) proper maintenance of the tyres; (iii) road conditions; (iv) driving habits; (v) speed; (vi) nature of the terrain i.e., level ground, hilly and/or winding roads; (vii) the season of the year when the tyre was used; (viii) position of the tyre on the vehicle and  (ix) inflation/ pressure and external object with which the tyre may come in contact while in motion. We do not admit these allegations because in our opinion, mere attribution of these defects to rough use and bad road condition, driving habits, proper maintenance, season of the year, mechanical condition, and position of the tyre has no consolation.  Passing on the blame for abnormal wear and tear on poor road conditions particularly in this country is unacceptable and this has no relevancy at all.  On the other hand, the Complainant has produced tax invoice as well as the job card, wherein it showed that the vehicle in question was purchased latestly on 31.10.2008 and the vehicle was just ran 1,320 kms., and within a one month the above said defects were noticed by the Complainant and brought to the knowledge of the 1^st Opposite Party who is a dealer in this case and the dealer drawn a job order and referred the matter to the dealer of the tyre and in turn the dealer referred to the manufacturer of the tyre.  The crucial point for consideration is that the new vehicle purchased by the Complainant was ran only 1,320 kms., and the cracks were found on the same Tread Area it cannot be attributed that the same was happened because of the mechanical condition or nature of the terrine or driving habits etc. etc. as alleged by the Opposite Party i.e., CEAT Company Limited.  The main thrust of the Opposite Party is that, it is not a manufacturing defect the said tyre was failed due to cuts on tread which is not acceptable since it is a brand new vehicle within a month all the tyres fitted to the chassis were found crack which clearly shows that the tyres fitted to the chassis is not of the standard quality. It is apparent from the records that the Opposite Parties who are large corporate houses, have failed to find out the defects by looking into the genuine grievances of a helpless consumer.  It is also the case of the Opposite Party No.2 that the Complainant ought to have examined an expert to prove the existence of manufacturing defect.  However, the Section 13(1)(c) of the Consumer Protection Act provides only in cases where the defect in goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain or send the goods for analysis or test.  The above test or analysis is not a mandatory provision in all the cases where defect in goods are alleged.  Since we have convinced that, the consumer – Complainant has shown clear preponderance of probability of the existence of major defects by producing exhaustive documentary evidence in the form of job order drawn by the Opposite Party No.1 who is an authorized dealer, it is not always necessary for the consumer – Complainant to give expert testimony in a case like this.  From the job order issued by the Opposite Party No.1 it is proved beyond doubt that the tyres fitted to the truck are having cracks and one of the tyre was burst and the Opposite Parties failed to establish before the FORA that the tyres supplied by them are of the standard quality and has no manufacturing defect and the said complaint complained by the Complainant due to the various factors such as (i) mechanical condition and/or irregularities of the vehicle; (ii) proper maintenance of the tyres; (iii) road conditions; (iv) driving habits; (v) speed; (vi) nature of the terrain i.e., level ground, hilly and/or winding roads; (vii) the season of the year when the tyre was used; (viii) position of the tyre on the vehicle and  (ix) inflation/ pressure and external object with which the tyre may come in contact while in motion. Apart from the above, the Opposite Party No.2 who is the manufacturer of the tyres and Opposite Party No.3 who is the dealer of the tyres not answered the interrogatories served by the Complainant to them.  The entire cross-examination of the Complainant was not answered by the Opposite Party No.2 as well as Opposite Party No.3.  Further we have noticed that except bare affidavit of one technical personnel of the Opposite Party No.2 nothing has been produced in order to show that the tyres fitted to the truck is not suffering from any manufacturing defect or the said defect was caused due to the several factors which has been alleged by the Opposite Party No.2 in Para No.7 of their version. 

In the given case, we are of the considered opinion that it is proved that the tyres fitted to the vehicle have been substantially impaired on account of the defects found in the tyre.  As we have further noticed that the Complainant had invested in a new vehicle hoping that the vehicle is dependable and trouble free.  But in the present case, within a month from the date of purchase of the vehicle the tyres fitted to the vehicle suffered substantially.  However, by taking into consideration the state of mind of the Complainant and also the amount spent and the defects found in the tyres of the vehicle we are of the considered opinion that, the tyres of the vehicle is not fit for use and the same shall be replaced or the amount refunded. 

In a case, Scooters India Limited Vs. M.Mohanthi RP No.240/2000, the Hon’ble National Commission in its order-dated 29.6.2001 observed that, a new vehicle has to be mechanically perfect and defect free. 

In the present case, it is proved that the vehicle sold by the Opposite Parties has some defects in the tyre and it is not mechanically perfect for use.  By considering the above, we hold that the Opposite Party No.2 the CEAT Company Limited, who is the manufacturer of the tyres is hereby directed to replace all the tyres with a new defect free tyres with extended guarantee by taking back all the defective tyres from the Complainant.  And further Rs.15,000/- awarded as a compensation for the inconvenience and the harassment caused to the Complainant and Rs.1,000/- awarded as cost of the litigation expenses.  Payment/compliance shall be made within 30 days from the date of this order.

As far as Opposite Party No.1 is concerned who is a dealer performed his service as a dealer and there is no deficiency whatsoever on behalf of the Opposite Party No.1 and hence the complaint against Opposite Party No.1 is hereby dismissed.

As far as Opposite Party No.3 is concerned, as a dealer of the Opposite Party No.2 sent the tyres received by the Opposite Party No.1 to the Opposite Party No.2.  Hence we do not find any deficiency on the part of the dealer of the Opposite Party No.2.  Therefore, the complaint against Opposite Party No.3 is also dismissed. 

6.       In the result, we pass the following:          

ORDER

The complaint is allowed.  Opposite Party No.2 the CEAT Company Limited, who is the manufacturer of the tyres is hereby directed to replace all the tyres with a new defect free tyres with extended guarantee by taking back all the defective tyres from the Complainant.  And further Rs.15,000/- (Rupees fifteen thousand only) awarded as a compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses.  Payment/compliance shall be made within 30 days from the date of this order.

Complaint against Opposite Party No.1 and 3 is hereby dismissed.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31^st day of August 2009.)

          PRESIDENT                       MEMBER

(SMT. ASHA SHETTY)      (SRI. K.RAMACHANDRA)

APPENDIX

Witnesses examined on behalf of the Complainant:

CW1 – Sri.Santhosh Kumar Shetty – Complainant.

Documents marked on behalf of the Complainant:

Ex C1 – 31.10.2008: Copy of the tax invoice issued by the 1^st Opposite Party.

Ex C2 – 31.10.2008: Copy of the receipt issued by the 1^st Opposite Party.

Ex C3 – 27.11.2008: Copy of the Ancillary job order issued by the 1^st Opposite Party.

Ex C4 –                  : Copy of the refusal letter issued on behalf of Opposite Party No.2.

Ex C5 – 04.12.2008: Copy of the claim docket issued on behalf of the 2^nd Opposite Party.

Ex C6 – 04.12.2008: Copy of the claim receipt issued on behalf of the 2^nd Opposite Party.

Ex C7 – 04.12.2008: Copy of the claim return issued on behalf of the 2^nd Opposite Party.

Ex C8 – 21.12.2008: Copy of the lawyer’s notice issued on behalf of the Complainant.

Ex C9 -                : Postal acknowledgement regarding 1^st Opposite Party.

Ex C10 -               : Postal acknowledgement regarding 2^nd Opposite Party.

Ex C11 – 02.01.2009: Lawyer’s reply notice caused by the 1^st Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

RW1 – Sri.A.Govind Bhat, Authorized General Manager of the 1^st Opposite Party.

RW2 – Sri.H.Raja Ram Rao – working as Commercial Manager at Bangalore branch of the Opposite Party No.2.

RW3 – Sri.Girish – Technical Service of the Opposite Party No.2.

Documents marked on behalf of the Opposite Party No.1:

Ex R1 –              : Maximizing performance of tyres manual produced by the Opposite Party No.2.

Dated:31.08.2009                                 PRESIDENT