SRI NAYANANANDA DASH,MEMBER:-

                          Unfair trade practice in respect of complainant’s tyre having manufacturing defects are the allegations arrayed against the Opp.Parties.  

                 Complaint in  a nutshell reveals that complainant being a graduate owner of Mini truck ply his vehicle for maintaining his  livelihood. OP No.1,Proprietor M/s.Baladevjew Traders is authorized stockists under OP No.2. Complainant on dt.15.05.14 purchased one tyre for his mini truck by paying Rs.7,400/- vide Memo receipt No.712 and the copy is filed as Annexure C-I and the tyre bears (stencil) Number T 10700460614. As the warranty was not available OP No.1 assured the complainant that warranty is valid for a period of one year from the date of its purchase. But within 2 to 3 months of its purchase the tyre created problems. While the said mini truck was going to Cuttack on dt.02.08.2014 near Chandol chhak the tyre became leak and the vehicle stopped there when said tyre was shown to local tyre resolling shop at Panikoili for its repair the tyre-repairing mechanic opined that the threads of the tyre already removed due to manufacturing defect. When contacted to OP No.1, it was suggested to lodge complaint before OP No.2. On dt.23.08.14 complainant deposited two(2) nos. of tyres before OP No.2-dealer for its exchange including the aforesaid defective tyre. OP No.2 issued a complaint docket by mentioning tyre(stencil) No. as T0700460614 which differs from the tyres(stencil) nos. which was reflected in the money receipt granted by the OP No.1 during purchase of the said tyre. According to complainant such omission or addition in the number of tyre by OP No.1 or OP No.2 should not be construed as a fault of complainant, rather it is the mistake of the Ops. The complaint docket dt. 23.08.14 is Annexured as C-II. The  Ops  have  neither  replaced tyre bearing Stencil No.T10700460614 norT07004601614 by saying that said tyres were not having any manufacturingdefects. It is further stated that such action of the Ops amounts deficiency inservice and unfair trade practice on part of the Ops. Hence, the complaint before the Forum and the complaint is maintainable as the provisions of C.P.Act. Complainant also prays this Forum that a direction may be given to the Ops to replace the old tyre with a new defect free tyre and compensation of Rs.5,000/- alongwith Rs.2,000/- for cost of litigation.                                                   

                   Being noticed Op No.1 & 2 appeared through their Ld. Counsels and filed joint  written statement into the dispute by denying the allegations of the complainant and submitting the facts, it is stated that OP No.1 is having a  tyre saling shop at Duhuria-Kendrapara. Complainant purchased one Appolo tyre bearing tyre(stencil) number T10700460614 from the OP No.1 on dt.15.05.14 by paying an amount of Rs.3,000/- against the total cost of Rs.77,000/- under receipt No.531. It is stated that complainant was promised to pay the balance amount of Rs.4700/- within  a month. On a good faith OP No.1 sold the tyre to the complainant on credit. After lapse of one month when the OP No.1 reminded to complainant to pay the balance amount, complainant deferred to make payments till yet. Further the complainant has never complaint regarding the manufacturing defects of the said tyre. In order to avoid the outstanding payments such a false case has been foisted. It is further stated that the manufacturing company may exchange the tyres which is having no manufacturing defects and not due to rough use of the tyre, by overloading and under pressure as prescribed. When the OP No.2 found that the tyre having number of manufacturing defects by testing and there was difference on the stencil number in purchase Memo and the stencil number of alleged tyre hence the alleged tyre was returned to the complainant. The grievance of the complainant has been sent to the concerned tyre company for consideration of the same. As the OP No.1 & 2 have not committed any deficiency of service they are not liable to pay any compensation as prayed for, accordingly the complaint likely to be dimissed with cost. Though OP No.3 filed written version on dt.04.03.15, but  OP No.3-manufacturing company was earlier set-exparte vide Order No.10 dt.13.02.2015. As the written version has not supported by any petition of recall for setting aside the ex-parte order. Hence, the written version filed by  OP No.3 does not create any legal implications in the adjudication of the present dispute.

                            Heard the  submissions of Ld. Counsel for Mr. Samantaray and case of the OP No.1 & 2 on merit,perused the Annexures filed by complainant(Annexure C-I to C-VI) which photo copies attested by the complainant. AnnexureC-III to C-VI are filed alongwith a memo of documents dt.11.05.2015 and written notes on arguments of complainant.

                        After hearing the submissions of Ld. Counsels for complainant and joint written statement of OP No.1 & 2 and examining the Annexures  the only admitted fact of case is that complainant purchased an Appolo tyre from OP No.1 on dt.15.05.2014. The price  or payment of consideration of the said tyre is disputed, as per the complaint petition and Annexure C-I the price of the said tyre is Rs.7400/- and the money receipt No. is 712. But as per the joint written statement of oP No.1 & 2 the price of the tyre was Rs.7700/- under receipt No.531. The Annexure C-III and on written notes on argument filed by complainant discloses that the price of the tyre is Rs.7700/- out of the said total cost complainant paid Rs.3,000/- on dt.15.05.14 and the balance of Rs.4700/- remains to be paid by the complainant.

                            The complaint petition does not speak a single sentence regarding such price of Rs.7700/- and part payment on dt.15.05.14 rather after filing of joint written statement by OP No.1 & 2 complainant clarifies his   stands   by   way   of  filing memo of documents and on written notes on arguments. Further complainant has tried to convince this Forum that the balance amount of Rs.4700/- has been paid to the OP No.1 by way of a cheque. However, when the copy of the memo of documents and written notes on arguments are received by the Ld. Counsel for OP No.1 & 2, and no objection is filed till the date of hearing  to the same it can be presumed that the balance amount of Rs.4700/- have been paid to OP No.1.

                        The allegation of the complainant is that he purchased one Appolo tyre from Op No.1 on dt.15.05.14 bearing tyre stencil number T10700460614 and obtained Retail Invoice/Money receipt  when the said tyre created problem having manufacturing defect presented 2 nos. of tyres before OP No.2 including the alleged defect tyre for its replacement on dt.23.08.14, while OP No.2 granted the customer  copy on complaint docket wrongly mentioned the stencil number of tyre as T0700460614(AnnexureC-II) instead of T10700460614 and such wrong entry of stencil number  in the tyre by the OP No.1 & 2 shall not be construed as a fault of the complainant. On the otherhand OP No.2 in para 11 of the written statement categorically submits that as there was difference in the stencil number in purchase memo and stencil number of the alleged tyre presented by the complainant on dt.23.08.14 and the same was returned to the complainant.

                Now it is to be decided here that as the disputes relates to defects in tyres which was purchased on dt.15.05.14 bearing tyre stencil number T10700460614 (AnenxureC-I and Annexure C-III). According to complainant he deposited 2 nos. of tyres including the defective tyre for its replacement before OP No.2 on dt.23.08.14 and OP No.2 issued the complaint Docket (Annexure C-II) by reflecting the depositing tyre stencil number as T0700460614 which according to complainant is the wrong entry/mistake either on part of OP No.1 or OP No.2. We failed to appreciate that which of the tyre having manufacturing defect as alleged by the complainant whether the  tyre stencil  number  present in the purchase memo (Annexures C-I and C-III) or the tyre produced by complainant on dt.23.08.14 before OP No.2 as entered by OP No.2 in the complaint docket  and accordingly on the same day the complaint docket(AnnexureC-II) was issued to the complainant. Further, complainant has not protested before the OP No.2 by way of any written complaint regarding wrong entry of tyre stencil number in the complaint docket.

             In the circumstances, for a moment it is believed that the tyre purchased by complainant is/ was having any defect,  and for the shake of argument the complaint is allowed  then what direction will be issued to the otherside to replace which of the tyre either it is the tyre bearing stencil number T10700460614 for which the complaint is filed or for the tyre bearing stencil number T0700460614 regarding which tyre is no complaint at all in the petition.

             Further, when complainant himself deposited the disputed tyre along with a Memo  before this Forum for future course of action  mentioned the tyre serial no.T0700460614 which is also reflected in order sheet of the Forum vide Order No.16 dt.25.05.15. It appears to us that complainant is in possession of two tyres bearing tyre stencil number T10700460614 and T0700460614. Further in absence of any specific prayer without desc ribbing the details of the defective tyre, no relief can be granted in this regard.  The substance and summary of the complaint is in respect of tyre(stencil ) No.T10700460614 regarding defects in said tyre but the prayer and production of alleged tyre which is confusing and misleading.  If any direction is given to the contesting Ops to replace the said tyre which is deposited before this Forum it will be miscarriage of justice. As the  complaint  is  not   presented   in   clear    cut    manner,    we  do not proceed further to discuss about the alleged manufacturing defect in the said tyre. We, freed Ops from any such liability of unfair trade practice/deficiency in service as prayed for.

                                                                                               O R D E R

                As per the discussions made above the complaint is dismissed with aforesaid observations. No order as to cost. Further complainant is directed to receive the tyre deposited before this Forum by furnishing a receipt Memo.                

                Pronounced in the open Court, this the 19^th day of August,2015.

                               List of annexures filed by the complainant

1. Photo copy of the retail Invoice dt.15.05.14          1 copy   - Annexure C-I
2. Photo copy of the complaint docket dt.23.08.14   1 copy-AnenxureC-II
3. Self attested photocopy of Money receipt

  No. 531 dt.15.05.14                                                  1 pc  -AnnexureC-III

4. Self attested photocopy of bank cheque

  Bearing No. ‘033403’ dt.06.06.14                           1 pc  AnnexureC-IV

5. Self attested photo copy of bank letter

  Dt. 30.03.15                                                              1 pc   AnnexureC-V

6. Self attested photo copies of S/B

  Pass book of complainant bearing                         2 pcs  AnnexureC-VI

  A/C No. 30463456984    

            ……