OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANGUL
PRESENT:- SRI DURGA CHARAN MISHRA.
PRESIDENT
A N D
Smt.Sunanda Mallick &Sri K.K.Mohanty,
MEMBER .
Consumer Complaint No. 109 of 2012
Date of Filling : - 29.11.2012.
Date of Order :- 21 .07.2017.
Pradeep Kumar Sahoo,S/O.Mohan Ch.Sahoo,
At:- Pokanda,P.O.Paik Sahi, Dist.Angul.
_________________________Complainant.
Vrs.
- Proprietor J.K.Enterpriser,At- Turanga N.H-55,
-
02. Bridgestone India Pvt.Ltd.Marketing/C.S.F Office,
Ashirwad Apartment,Bomikhol,Cuttack-Puri Road,
Bhubaneswar.
03.Bridgestone India Pvt.Ltd,Sales & Marketing Head Office,
Plot No.5/4,5th Floor,Mirchandani Business Park,
Shalimar ONYX,Off Andheri Kurla Road,Sakinaka,
Andheri(East),Mumbai- 400072.
_________________________ Opp. parties.
For the complainant :- Sri B.C.Pradhan & associates(Advs.).
For the opp.party No.1 :- Sri D.K.Pani & associates(Advs.)
For the opp.party No.2 & 3 :- Sri R.K.Maharana & associates(Advs.)
: J U D G E M E N T :
Sri D. C. Mishra, President.
The petitioner/complainant has filed this case with prayer to direct the opp.parties to replace the defective tyre which he had purchased from opp.party No.1 with a new defect free tyre of the same brand or to refund the cost of the tyre with interest and compensation as well as cost of litigation.
2. The complainant’s case runs thus:-
That on 18.10.2012 he purchased two pieces of bridge stone make steel radial tyres from opp.party No.1 by paying Rs. 9,700.00 towards the cost by obtaining retail invoice(Annexure-1) and warranty (Annexure-2) Opp.party Nos.2 & 3 are the manufacture and marketing office of the aforesaid tyres .After 20 days of purchasing the tyres, the complainant noticed defects i.e air bubbles developed on the side walls of the tyre. Therefore, the complainant approached opp.party No.1 with the defective tyre who refused to accept the tyre and advised the complainant to give the complain to opp.party No.2.Therefore on 22.11.2012 the complainant went to Bhubaneswar with the defective tyre and gave his complain to opp.party No.2 and one employee of opp.party No.2 just examined the defective tyre in bare eye and issued claim advise letter to the petitioner rejecting his claim. It is alleged that neither the complainant has signed on the claim rejection form nor opp.party No.2 has recorded the consumed millage or position of the vehicle or the tyre on the specified column of the letter. According to the petitioner the employee of the opp.party No.2 was in an attitude to reject the claim ,for which without any type of examination of the tyre, he rejected the claim stating false and unnecessary grounds as the cause of the defect in the tyre. Since the complainant is a consumer and the opp.parties being the service providers did not extend service properly, he has filed this case seeking the reliefs as already stated above in Para No.1.
3. Opp.party No.1 has contested the case by filing written show cause stating that the case is not maintainable as the alleged tyres were purchased by the complainant for fitting in a commercial vehicle used for earning profit and the opp.party No.1 being the trader has no liability about condition of the tyre for which he has prayed for dismissal of the case. Opp.party No.1 has specifically maintained that when the complainant approached him, he said to approach opp.party No.2 for a speedy and proper remedy and gave the claim advise letter in favour of the complainant and the complainant voluntarily accepted it, for which he has not made any deficit in service. According to opp.party No.1, law is well settled that manufacturing defect has to be proved by the complainant by expert opinion or evidence but the complainant has not done so for which he has no locus-standaie to file this case against him (opp.party No.1 ).
4. Opp.party Nos.2 & 3 have filed a joint written version denying all the averments/ allegations made against them by the complainant stating that there is no consumer or service provider relationship between them and that the case is not maintainable as because manufacturing defect is to be proved by the complainant by expert evidence or examination report of authorized person. According to the opp.parties, their service engineer who is technically trained and qualified to inspect and examine the defective tyre ,inspected it in presence of the complainant and after due examination reported that the damage to inner ply cords resulted in bulging but the damage was not due to manufacturing defect. The cause of rejection was also explained to the complainant. According to the opp.parties the complainant had gone with the tyre in a taxi but not in his vehicle for which the mileage consumed through the tyre could not be traced out and the technical service engineer has noted the remaining trade depth of the alleged tyre in the inspection report (Annexure-A).The opp.parties have specifically claimed that, since the defect in the tyre was not due to manufacturing defect but due to other reasons, the claim is not covered under warranty issued by it. According to the opp.parties, as per Clause-4 of their warranty policy, the tyres and tubes can be covered under warranty for manufacturing defect only and not for any other reasons.
The opp.parties averred that as per Section-13(i)(C ) of the C.P.Act, the complainant should prove the defect by submitting inspection report of some Govt. Servant or approved external laboratory which is authorized to conduct such tests for ascertaining the real cause of damage.
The opp.parties have mentioned many citations of the Hon’ble Supreme Court and Hon’ble National Commission in their written version in support of their claim.
5. In the above premises and as the complainant has not tested the damaged tyre to know about manufacturing defect or reasons attributable for the defect, the opp.parties have prayed for dismissal of the case.
6. In view of the rival pleadings of the parties the following issues arise for consideration.
: I S S U E S :
- Whether there is consumer and service provider relationship between the parties and the case is maintainable and there is any cause of action to file this case ?
(ii)Whether the opp.parties made deficit in providing proper service to the complainant and there was manufacturing defect in the alleged tyre ?
(iii) To what reliefs the parties are entitled to ?
Issue No.(i):- The complainant has purchased the alleged tyres from opp.party No.1 by obtaining invoice (Anx-I) and warranty (Anx-II) by paying money. Admittedly opp.party No.2 & 3 are the marketing office and manufacturer of the alleged damaged tyre .Therefore, there is consumer and service provider relationship between the parties. Since the alleged tyre was damaged within 20 days of purchase, the complainant has filed this case claiming compensation and cost etc. So the complainant has cause of action to file the case and the case is maintainable.
Issue No.(ii):- According to the complainant, after 20 days of purchase of the alleged tyre he noticed air bubbles developed on the side wall of the tyre for which he approached opp.party No.1 for remedy but opp.party No.1 refused to accept the complaint and told the complainant to give the complain to opp.party No.2. The opp.parties submitted that, opp.party No.1 accepted the complaint from the petitioner, prepared the claim advice letter in favour of the complainant and told him that if he will send the claim directly to the manufacturer (opp.party No.2 & 3) ,then it will take some time and if complainant will directly submit his claim before the opp.party No.2 his claim will be settled earlier and the complainant in order to expedite his claim approached opp.party No.2 with the claim advise letter prepared by opp.party No.1 .If opp.party No.1 refused to accept the complain from the complainant, then how the complainant approached opp.party No.2 with the claim form issued by opp.party No.1.Thus, the claim of the complainant that he approached opp.party No.1 who refused to accept the claim has not been substantiated by any cogent evidence or letter.
According to the petitioner, within 20 days of purchase of the tyre, he noticed an air bubble developed on the side wall of the tyre and it is only due to manufacturing defect, for which the opp.parties are liable to compensate. In this regard the opp.parties have relied on many decisions of the Hon’ble Supreme Court and National Commission in their written version. In the decision reported in M/s. Fiat(I) Ltd. Vrs. Sri C.N decided by Hon’ble National Commission,the Hon’ble Commission referred to the judgement of Hon’ble Supreme Court given in Maruti Udyog Ltd. Vrs Susil Kumar Garbgotra and another ,II (2006) CPJ 3(SC) where in it was hold that:-
: any relief out side the terms and conditions of the manufacturer warranty could not be sustained”.The opp.parties specifically submitted that as per Clause No.4 and 16 of their warranty policy “ Tyrer and tubes shall be covered under warranty for manufacturing defects only”.
Now this forum has to decide whether there was manufacturing defect in the alleged tyre or not.As per Section-13 (1)( c ):-
“ where the complainant alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum”:
Thus as per the above decision of Hon’ble Supreme Court and warranty condition of the opp.parties, the opp.parties can be held liable for manufacturing defective goods only.
In the RVN Petition No. 327/2004, “Maruti Udyog Ltd Vrs, Hasmukh Laxmi Chand and another”, the Hon’ble National Commission have held that: –
“Complainant did not produce any evidence to show that the defect pointed out by it was a manufacturing defect. To prove such a defect,opinion of an expert is necessary which is not forth coming in this case”.
In the decision reported in CPR 282 (NC),Sashi PK Vrs. Director H & J informark and others, it has been held that:-
“ it is obligatory on the part of the complainant to get sample tested by laboratory” .
Now law is well settled that, to prove manufacturing defect, test report from a laboratory made by technical expert is necessary”. In this case complainant has not proved any test report from authorized laboratory.
The complainant has filed three citations out of which the decision reported in “MRF Limited and another Vrs. A.Bawa Bugardheen and another,2008(II) CPJ 559 Tamil Nadu SCDRC” is important. In the said decision it has been held that :-
“ The opp.party No.1 &2 filed a petition before the District Forum in M.P.No.201/2001 requesting the Forum below to send the tyres to an appropriate laboratory to find out the nature of defect.,However, at the time of inquiry,an endorsement of “not pressed” was made on behalf of the opp.party No.1 and 2 hence that petition was dismissed. No further steps having been taken by O.Ps 1 and 2 ,the stand of the complainant stood unchallenged”.
In the above case the opp.parties had filed a petition for expert opinion but subsequently not pressed the petition for which the decision was taken against the opp.parties as because the complainant had got the damaged tyres inspected through private engineer and the private engineer had opined that the tyres worn-out due to manufacturing defect. Since there was an authenticated report from complainant side about manufacturing defect and the opp.parties had filed petition to send the tyres to an appropriate laboratory to find out the nature of defect and subsequently not pressed it, therefore the forum relied and acted on the existing report of the complainant found in the record. In the present case the complainant has not taken any step to send the damaged tyre for examination by an authorized technical expert which is mandatory as per Section -13(1)(c) of the C.P.Act.The fact and circumstances of the above case is quite different from that of the present case , for which it is not applicable to the present case.
Perused all other citations, documents and affidavits filed by the parties which neither improve not derogate the case.
From the foregoing discussions it is found that the complainant could not prove any authenticate testing report that there was manufacturing defect with the alleged tyre.
Issue No.(iii):- The opp.parties are not liable to pay any damage or compensation to the complainant and the complainant is not entitled to get anything from the opp.parties.
8. Hence the order:-
: O R D E R :
The case is disposed of on contest. The complainant is not entitled to get any relief (compensation or cost) in this case from the opp.parties.
Order delivered in the open forum
today the 21st July2017 with
hand and seal of this Forum.
Typed to my dictation
and corrected by me Sd/-
(Sri D. C. Mishra)
Sd/- President.
(Sri D. C. Mishra)
President .
Sd/- Sd/-
(Sri K.K.Mohanty), (Smt.S. Mallick),
Member. Member.
