SRI.K. VIJAYAKUMARAN, PRESIDENT. Complaint seeking replacement of the tyre or the prize paid for the same with compensation and costs. The averments in the complaint can be briefly summarized as follows: The complainant purchased 2 set tyres and tube on 9.10.2006 as per the bill No.2344 from the 2nd opp.party who is the dealer of the tyres manufactured by the first opp.party for his vehicle bearing Reg.No.KL-02 W 9003. He again purchased another tyre as per the Bill No.2803 dated 15.12.2006 a sum of Rs. 17,025/- was paid towards the prize of the tyres.. One tyre purchased on 9.10.2006 and the other tyre purchased on 15.12.2006 were seen to have sustained the edge damage on 11.1.07 On 19.3.2007 the 3rd tyre also sustained edge damage and thereby he was unable to ply the vehicle Tata Media Commercial Vehicle. In all the 3 tyres the damages were of the same nature and such damage is due to manufacturing defect. Since the tyres became damaged immediately after the purchase, the complainant sustained huge loss and mental agony. Hence the complaint. The opp.party filed version contending that the complaint is not maintainable and complainant is not a consumer within the meaning of Consumer Protection Act 1986, As the tyres were purchased for commercial purpose. The tyre of size 825 x 16 having serial NO.56321023406 was received for examination from the complainant on 18.1.2007 and on examination by the Technical Service Personnel it was observed that the tyres were damaged due to service abuse caused due to Mechanical complaint of the complainant’s vehicle and not due to any manufacturing defect. The 2nd tyre of size 825 x 16 having Sl.No.56143442806 was also received for examination from the complainant and on examination it was found by the Technical Service Personnel that the tyre was damaged due to ply separation at ring area. The above tyres had no manufacturing defect. However as a good will gesture the opp.parties offered to replace the tyres on condition that the complainant shall pay Rs. 3469/- which is proportionate to that portion of the service of the tyres which has already been enjoyed by the complainant The above tyres at the time of examination was having a skid depth of 6 mm and 3mm against the 14.5 mm This shows that 70 % of the tread has been worn out. The offer was accepted by the complainant and the above tyres were replaced charging Rs.2591/- and Rs.3469/- . The opp.parties has charged the complainant only for the service already enjoyed by him. The complainant has accepted the goodwill offer without any hesitation and had obtained new tyres with reduced rate and it was thereafter that this complaint was filed. The allegation that the damage caused to the tyres is due to manufacturing defect is false and hence denied. The tyre would be damaged due to various reasons other than manufacturing defect. The tyre referred to in the complaint are free from manufacturing defect. The 3rd tyre of size 825 x 16 having Sl. No.56279003306 was received for examination from the complainant on 20.3.2007. The above tyre was also examined by Technical Service Personnel, who observed that the tyre was damaged due to locker ring damage caused due to improper rim. This is also due to any manufacturing defect. The tyres referred to in the complainant are of a true and merchantable quality free from manufacturing defect and the same were damaged only due to reasons stated above. The allegation that the complainant suffered loss is false and hence denied. The opp.party is not liable to make good any loss as the tyres were free from any manufacturing defect. The complainant has approached this Forum with unclean hands suppressing material facts. Hence the opp.party prays to dismiss the complaint with their compensatory costs. Points that would arise for consideration are: 1. Whether the tyres have any manufacturing defect. 2. Whether there is deficiency in service on the part of the opp.parties 3. Reliefs and costs. For the complainant PW.1 is examined. Ext.P1 and P2 are marked. For the opp.party DW.1 is examined. Ext. D1 to D3 are marked. Points: There is no dispute that the complainant purchased 3 sets of tyres from the shop of opp.party 2 and manufactured by opp.party 1 as per Ext.P1 and P2for his Tata medium commercial vehicle. The case of the complainant is that all the 3 tyres became damaged immediately after purchase which is due to the manufacturing defect. The definite contention of the opp.parties is that the defects alleged to have been caused to the tyres is not due to any manufacturing defect but due to service abuse caused due to the mechanical complaints of the complainant’s vehicle and ply separation at ring area which has been stated by their Technical service personnel. According to the opp.parties at the time of examination of the tyres by their Technical Service Personnel it was noticed that the tyres purchased as perExt.P1 were having a skid depth of 6 mm and 3mm as against 14.5mm and 14.5 mm respectively from which it is clear that 79% of the tread has been utilized by the complainant. It is the further case that as a goodwill gesture the opp.parties offered to replace the tyres on payment of Rs.2591/- and Rs.3469/- plus tax which was accepted by the complainant and the above tyres were replaced and it was thereafter that this complaint wqas filed with malafide intention. The learned counsel for the opp.parties would argue that there are several factors which would affect the life of tyres viz [1] Mechanical condition or irregularities of the vehicle [2] proper maintenance of the tyres [3] road condition [4] driving habits [5] Nature of the terrain [6] inflation pressure etc; and from the inspection report of their technical service personnal it is established that the defect caused to the tyres was not due to any manufacturing defect but due to service abuse. It is well settled that when manufacturing defect is alleged the burden is on the complaint to establish the same by adducing expert evidence and reliance can be drawn from the decision reported in 2008 [1] CPR 120. The complainant herein has failed to adduce expert evidence and therefore the contention that the tyres had manufacturing defects cannot be accepted. The complainant in our view has failed to prove that the tyre had manufacturing defect. Another contention of the opp.parties is that the complaint is lnot maintainable as the complainant is not a consumer within the meaning of sec. 2 [1][d] of the Consumer Protection Act. Admittedly the tyres were purchased for a commercial vehicle and the complainant has no case that he is using the vehicle himself for the purpose of earning his livelihood by means of self employment. Therefore the complaint cannot be considered to be a consumer. For all that has been discussed above we find that there is no deficiency in service or unfair trade practice as alleged. Point found accordingly. In the result the complaint fails and the same is hereby dismissed. Dated this the 30th day of July, 2009. . I N D E X List of witnesses for the complainant PW.1. – V. Gopalakrishnan Nair List of documents for the complainant P1. – Bill P2. – Bill dated 15.12.2006 List of witnesses for the opp.parties DW.1. Paul Cheriyan List of documents for the opp.parties D1. – Inspection docket No. 70837 dated 18.1.2007 D2. – Inspection docket No.70838 dated 18.1.2007 D3. – Inspection docket No.71349 dated 20.3.2007 | 
