D.O.F. 06.05.2010

                                            D.O.O. 08.03.2012

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri. K.Gopalan                  :                President

                   Smt. K.P.Preethakumari   :               Member

                   Smt. M.D.Jessy                 :               Member

Dated this the 8^th day of March,  2012.

C.C.No.124/2010

Rajan P.K.

S/o. Govindan,

‘Aadarsh Nivas’,                                          :         Complainant

Mavilayi,

P.O. Mavilayi, Kannur.

1. Propritor

    Aiswarya Tyres,

    Mele Chovva,                                          

    Kannur-6.                           

   (Rep. by Adv. T.V. Haridasan)

2. Apollo Tyres Ltd.,                                    :         Opposite Parties

    Nr. Vellayil Police Station Beach Road,

    West Hill P.O.

    Kozhikode – 673 005

   (Rep. by Adv. Shaji K.N.)

O R D E R

Smt. K.P. Preethakumari, Member

          This is a complaint filed under Section 12 of Consumer Protection

 Act for an order directing the opposite parties to replace the defective tyre and tube or to refund ` 2,475 being the value of the tyre and tube along with ` 40,000 as compensation.

          The complainant’s case is that he is a taxi driver by profession and is a means of livelihood of the complainant and his family.  The complainant has purchased two tyres with tubes from 1^st opposite party for ` 4,950 out of which one of the tyre and tube was burst out, when it was covered about ` 1000 Kms and soon after this incident the complainant examined the tyre with the help of a mechanic and found nothing unusual.  On the same day itself the complainant approached 1^st  opposite party and 1^st opposite party collected the tyre and tube from the complainant and issued the same to the 2^nd opposite party.  But the 2^nd opposite party issued reply stating that the defect was not a manufacturing one.  The tyre and tube was burst out due to its manufacturing defect and there is unfair practice and deficiency of service on the part of opposite parties.  Because of this the complainant has suffered so much of mental and financial hardship and hence the opposite parties are liable to compensate the complainant.  Hence this complaint.

          In pursuance to the notice issued by the Forum both opposite parties appeared and filed their version.   The 1^st opposite party admits the purchase of the tyre and tube, but denied that the defect is caused due to the manufacturing defect.  The damages alleged is caused due to the rash and negligent use of tyre by the complainant.  2^nd opposite party verified the defective tyre and of the expert opinion that the defect is caused not due to manufacturing defect and was informed to the complainant.  The 1^st opposite party is only a dealer to 2^nd opposite party and is not responsible or liable for any damage or for compensation to the complainant and if found any liability, the 2^nd opposite party is responsible for the same and 1^st opposite party is a unnecessary party in the above case.

          2^nd opposite party also filed version contending that the complaint is not maintainable as the complainant has not produced any evidence to show that it has manufacturing defect. There is no cause of action against 2^nd opposite party.  It is incorrect to say that the alleged tyre damaged after running 1000 Km due to any manufacturing defect.  An expert in tyre and rubber technology is only competent to ascertain cause of defect in a tyre.  The tyre submitted by the complainant was examined by Technical Service Engineer of 2^nd opposite party who is properly trained in rubber technology and according to him the tyre has no manufacturing defect.  The cause of failure as per rejection report was sidewall through cut and it causes due to penetration of sharp object at side wall.  Any tyre being a rubber product may be defective any time due to external reasons.  The alleged tyre was returned back on the same day of inspection to the dealer.  Customer friendly policy of the company stands only for manufacturing defects in its products where 2^nd opposite party replace the products on pro-rata basis.  2^nd opposite party has not made any loss and it is incorrect to say that the complainant suffered mental harassment or financial loss on account of the 2^nd opposite party.  The demand of the complainant for new tyre along with compensation is baseless.  So the complaint against 2^nd opposite party is liable to be dismissed.

          Upon the above contention the following issues have been raised for consideration.

1.         Whether there is any deficiency of service on the part of opposite parties?

2.         Whether the complainant is entitled to any relief as prayed?

3.         Relief and cost.

The evidence in the above case consists of the oral testimony of PW1, DW1, Ext.A1 to A4 and B1.

Issue No.1 :

     The case of the complainant is that out of the two tyre purchased from 1^st opposite party and manufactured by 2^nd opposite party one was burst out while it was run approximately 1000 Kms and it was due to manufacturing defect.  In order to prove his case he was examined as PW1 and produced bill dated 20.11.09, Complaint docket dated 31.03.2010, and rejection letter.  In order to disprove the case opposite party examined as DW1.  The admission of opposite parties along with Ext.A1 proves that the complainant has purchased two tyre worth ` 4950 on 20.11.09 and Ext.A2 and A3 proves that the complainant has given a complaint with respect to the same and tyre was issued to 2<sup>nd</sup> opposite party by 1<sup>st</sup> opposite party for replacement. But 2<sup>nd</sup> opposite after examining the tyre, rejected the request as per Ext.A3 and according to A3 the probable cause of failure is due to penetration of sharp object at sidewall.  But the person who has issued the opinion was not examined.  The 2<sup>nd</sup> opposite party has taken steps to call for expert report after examining the tyre.  The complainant also filed a memo by giving his consent in sending the same for expert report and stated that eventhough the 2<sup>nd</sup> opposite party informed the complainant as per letter dated 08.04.2010 ie by A3 that “rejected goods are being despatched to you shortly as freight to pay basis, they have not returned the same.  The opposite parties eventhough contended that they have returned back the tyre and tube accordingly as per Ext.A3, they have not produced any documents to show that the complainant has received the tyre and tube.  So we are of the opinion that the opposite parties have not returned the tyre and tube to complainant even today.  This itself if deficiency of service on the part of opposite parties. So we are of the opinion that the opposite parties are liable to give a new tyre and tube to the complainant along with ` 500 as cost of the proceedings and order passed accordingly.

     In the result the complaint is allowed directing the opposite parties to give a brand new tyre and tube to the complainant along with ` 500 (Rupees Five hundred only) as cost of the proceedings  within one month from the date of receipt of this order, failing which the complainant can execute the order as per the provisions of Consumer Protection Act.

                     Sd/-                     Sd/-                                                      

                       President               Member          

APPENDIX

Exhibits for the Complainant

A1.  Bill dated 20.11.09.

A2.  Complaint docket dated 31.03.2010.

A3.  Rejection letter.

A4.  Copy of R.C.

Exhibits for the opposite party

B1.  Receipt

Witness examined for the complainant

PW1. Complainant.

Witness examined for opposite party

DW1.  Ajith Krishnan G.

      /forwarded by order/

                                                                     SENIOR SUPERINTENDENT