KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 456/2016
JUDGMENT DATED: 12.06.2024
(Against the Order in C.C. 141/2012 of CDRC, Kannur)
PRESENT:
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
SRI. RADHAKRISHNAN K.R. : MEMBER
APPELLANTS:
- Mohanan C., Proprietor, Aiswarya Tyres, 214/10, Mattannur Road, Melechovva, Kannur-670 006.
- M/s J.K. Tyres & Industries Ltd., Link House, 3, Bahadur Shah Zafar Marg, New Delhi-110 002 represented by its Sr. Commercial Officer, Sri. N. Janardhanan Namboodiri.
(By Adv. N.K. Sanath Kumar)
Vs.
RESPONDENT:
Pradeepan P.P., S/o K. Vasu, Puthiyapurayil House, Vaduvankulam, Kuttiyattoor P.O., Kannur-670 602.
(By Adv. S. Sreekumari Amma)
JUDGMENT
SRI. RADHAKRISHNAN. K.R: MEMBER
This is an appeal filed under section 15 of the Consumer Protection Act, 1986, against the order in C.C. No. 141/2012 before the District Consumer Disputes Redressal Commission, Kannur (District Commission for short). The appellants are the opposite parties 1 & 2 before the District Commission. The District Commission by its order dated 09.05.2016 allowed the complaint in part and directed the opposite parties to pay a sum of Rs.19,750/- being one half of the price of the tyres along with Rs.3,000/- as compensation and Rs.2,000/- as costs to the complainant within 30 days of receipt of the order, failing which the complainant is at liberty to execute the order as per the provisions of the Consumer Protection Act, 1986.
2. Facts of the case are as follows:
The complainant is a driver by profession, plying a lorry owned by him for earning his livelihood. He purchased two J.K. Radial tyres on 10.01.2012 from the 1st opposite party dealer with a guarantee of running 80,000 kms. The 2nd opposite party manufacturer also made similar claims in their advertisements. The complainant had used the two tyres, on the left back side of his lorry. These tyres were worn out before it covered 10000 kms. The complainant sought the opinion of a tyre resoling expert who opined that the corrosion was due to inferior quality of the tyres. After that he approached the 1st opposite party for replacement of the tyres and kept the same with him for a month. He admitted that there is manufacturing defect in the tyres. However the 2nd opposite party attributed the damage of the tyres to the overloading of the lorry and refused to replace the tyres. Hence the complaint was filed alleging unfair trade practice and deficiency in service on the part of opposite parties, claiming replacement of the tyres/refund of the price paid with compensation and costs.
3. Notice was issued to the opposite parties and they appeared and filed their written version contending that there is no deficiency in service or unfair trade practice on their part as alleged. According to them there is no cause of action for the case and they were unable to ascertain the nature of the alleged defects as the complainant never produced the defective tyres before the opposite parties. The lorry was being used for commercial purpose and hence the complainant is not a consumer under the Consumer Protection Act. The tyres were not examined by any expert/laboratory as per provisions of the Act. The opposite parties denied giving any guarantee of running 80,000 kms. The 1st opposite party is unaware about the reason for the alleged corrosion. According to the 2nd opposite party there are so many factors like driving habit, nature of road, improper maintenance of vehicle, over loading, mechanical defects of the vehicle etc. for the fast wearing out of the tyres. Therefore the opposite parties are not bound to replace the tyres and hence prayed for dismissal of the complaint.
4. The evidence in the complaint consists of the oral testimony of the complainant as PW1. PW2 was examined on his side. Exts.A1 & A2 were also marked. Tyres were marked as MO1 and MO2. DW1 was examined on behalf of opposite parties and Exts. B1 and B2 were marked on their side. On the basis of the evidence adduced the District Commission passed the impugned order. Aggrieved by the said order the opposite parties have filed this appeal.
5. Heard both sides. Learned Counsel for the appellant admitted having sold the tyres to the respondent. According to him the appellants have not given any warranty for the life of the tyres as 80,000 kilometres. The life of tyres depends upon the proper maintenance of the vehicle and proper manner of driving. The question of warranty comes only when there is manufacturing defect. In the case of the tyres sold to the respondent there was no manufacturing defect and it happened only because of the overloading of the vehicle and lack of maintenance on the part of the respondent and hence the appellants are not liable for unfair trade practice or deficiency in service. Hence they prayed for setting aside the order of the District Commission.
6. The learned counsel for the respondent/complainant submitted that the tyres purchased by him were worn out even before running ten thousand kilometres. This is much below the expected kilometres/mileage for a standard tyre. The tyres were worn out only because of the inferior quality of the tyres. This was confirmed by an experienced tyre resoling expert. The vehicle was driven in standard conditions without any overload. The manufacturers and dealers assured him of a life of 80,000 kilometres for the tyres which they have disowned when the damages were reported before running 10,000 kms. The damages happened only because of the manufacturing defect of the tyres. Hence the learned counsel prayed for dismissing the appeal and confirming the order of the District Commission.
7. We have considered the submissions on both sides and perused the records. The appellants admitted having sold two JK radial tyres on 10.01.2012 to the respondent for his lorry. Exbt. A1 is the receipt dated 10-01-2012 for Rs. 39,500/- and Ext. A2 is the operation manual. According to the respondent/complainant the tyres were damaged within one month. He was examined as PW1. He deposed that the vehicle was driven in standard running conditions and the damages to the tyres happened within a short span of time, only because of the inferior quality of the tyres. PW2, who is an experienced tyre resoling expert, was examined on the side of the complainant. He supported the contentions of the respondent.
8. The appellants contended that the life of the tyres depend on the proper maintenance of the vehicle and proper manner of driving. Their service engineer conducted an inspection of the tyres (marked as MO1 and MO2) at the premises of the Commission and submitted a report on 16-08-2012. He was examined as DW1. His reports were marked as B1 and B2. According to him damages to the tyres were of one sided and it can be due to over loading or reckless driving. Wrong wheel alignment or balancing also may cause such damages. He ruled out any manufacturing defect to the tyres.
9. The respondent solely relies on the advice of the tyre resoling expert for his contention that the tyres suffer from manufacturing defect. He had given only an oral advice and not given any report of his inspection of the tyres. He was examined as PW2. The respondent/complainant failed to prove the competency of the said person to conduct an inspection and report about the cause of damage. He also did not choose to seek the services of an expert commissioner to prove the cause of damage. On examination of the deposition of PW2 we observe that he was not able to sufficiently explain the reasons for the damage to the tyres. Because of his lack of competency in properly explaining the reasons for the damages to the tyres we are not inclined to accept his version. There is nothing in evidence to prove that the Opposite parties promised a mileage of 80,000 kms for the tyres. There is absence of sufficient evidence to establish that the damage to the tyres had occurred only due to manufacturing defect. Warranty is applicable only if manufacturing defect is proved. It is possible that such damages can occur due to various reasons submitted by the appellants.
10. The District Commission found that the complainant has failed to prove the mileage obtained for the tyres beyond doubt. The order is passed by them despite their observation that there is lack of evidence through qualified expert on the side of the complainant. Appellants have relied upon a decision in a similar case by the Hon’ble National Consumer Disputes Redressal Commission (NCDRC) in Appeal No. 182/2008. In this case the NCDRC made an observation that “it is common knowledge that excessive tear and wear of one or more rear or front tyres of vehicle is generally accountable to various factors like improper alignment and balancing of wheels, road conditions, driving habits etc”. In this case also there is nothing in evidence to correlate the damage to the tyres and manufacturing defect. We are of the view that the respondent could not prove, with sufficient evidence that the damages to the tyres occurred only because of the manufacturing defect. Hence, we do not find any merit in the contention of the respondent that the appellants are responsible for the damages to the tyres.
11. From the foregoing discussion, we find that there are sufficient grounds for the contentions of the appellants that there is no evidence for attributing manufacturing defect to the damages to the tyres and that there is no unfair trade practice or deficiency in their service. The District Commission erred in finding unfair trade practice and deficiency in service on the part of the appellants and hence the order under appeal is liable to be set aside.
In the result, appeal is allowed and the order dated 09.05.2016 in C.C.No.141/2012 of the District Commission is set aside. The complaint shall stand dismissed. The statutory deposit of Rs. 12,500/- (Rupees Twelve Thousand Five Hundred only) remitted by the appellant at the time of filing the appeal may be refunded on proper acknowledgement. There is no order as to costs.
AJITH KUMAR D. : JUDICIAL MEMBER
jb RADHAKRISHNAN K.R. : MEMBER
