BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

SRI.  P.V. JAYARAJAN                              :           PRESIDENT

SMT. PREETHA G. NAIR                           :           MEMBER

SRI. VIJU  V.R.                                             :           MEMBER

C.C.No. 188/2011 Filed on 08/06/2011

ORDER DATED: 28/12/2023

SRI.P.V. JAYARAJAN, PRESIDENT:

This is a complaint filed under section 12 of Consumer Protection Act 1986 and the matter stood over to this date for consideration.  After hearing the matter the commission passed an order as follows:

1. This is a complaint filed by the complainant against the opposite parties alleging deficiency in service and unfair trade practice on the part of the opposite parties.  After admitting the complaint notice was issued to the opposite parties.  The opposite parties entered appearance and filed written version denying the allegation raised by the complainant.  
2. The case of the complainant in short is that on 30/04/2011, the complainant purchased one tyre from the 1^st opposite party shop for his TATA 107 mini lorry by paying Rs.7,750/- to the 1^st opposite party.  The 2^nd opposite party is the manufacturer of the said tyre after purchase the complainant fixed the said new tyre on the left rear side of the lorry to ply it on road.  On 03/05/2011 while carrying hollow bricks from Karakkonam to Mukkola, when the vehicle reached Neyyatinkara, the complainant who was driving the vehicle stopped the vehicle for tea break and after that the complainant along with his helper made a thorough check to the all tyres and astonishingly it was found that several cracks were seen on the side wall of the newly purchased tyre starting from the wheel rim.  The complainant further submits that on the next day itself he arranged a goods auto and entrusted the tyre with the 1^st opposite party and the 1^st opposite party was convinced regarding the defect seen on the tyre and told that they will immediately inform it to the 2^nd opposite party who is the manufacturer of the tyre and promised that the tyre will be replaced with a new one.  More over the complainant was further informed that, as the manufacturer was at Madras it will take two weeks time to redress the grievances.  The complainant further submits that on several occasions he approached the 1^st opposite party requesting for the replacement of the tyre.  On all these occasions he was turned down by the 1^st opposite party stating that there was no information from the 2^nd opposite party.  Meanwhile the complainant received a letter from the 2^nd opposite party stating that the 2^nd opposite party had conducted inspection and found that there was no manufacturing defect and hence rejected the claim for replacement of the tyre.  The complainant further submits that with the new tyre purchased from the opposite parties, the complainant’s vehicle plied only 60 kms and several cracks were seen on the tyre.  According to the complainant the said tyre is not road worthy and cannot be used.  According to the complainant he has suffered huge loss because of the irresponsible attitude of the opposite parties.  the complainant further submits that from 03/05/2022 onwards the complainant cannot ply the vehicle and he sustained a loss of Rs.12,000/- till 07/05/2011.  The complainant further submits that on 07/05/2011 he purchased another tyre from Ambadi Tyre’s as he is in dire need for new tyre to ply the vehicle on road to earn his livelihood.  According to the complainant the act of the opposite parties amounts to unfair trade practice and deficiency in service.  The damage of the said tyre was happened within days from the purchase of the new tyre and from that it is clear that there is inherent manufacturing defects in that tyre.  Alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainant approached this Commission for redressing his grievances.      
3. The 1^st opposite party filed written version contending that the complainant used the said tyre for commercial purpose and hence the complainant is not a consumer.  The 1^st opposite party further contended that the 1^st opposite party never assured the complainant that he would replace the same with a new one.  The 1^st opposite party submits that immediately on receipt of complaint from the complainant, the 1^st opposite party informed the 2^nd opposite party for technical examination without any delay.  After a scientific examination by the 2^nd opposite party a report was forwarded to the complainant stating that the damage was due to external damage/ scoring due to the sudden impact with a sharp object and hence the claim for replacement was rejected.  The copy of the said report was also forwarded to the 1^st opposite party by the 2^nd opposite party.  The 1^st opposite party further contended that the complainant was carrying full over load of hollow bricks which is admittedly a heavy material.  According to the 1^st opposite party in order to make undue profit, the complainant was negligent in carrying such heavy material like overload of hollow bricks.  According to the 1^st opposite party they are selling only goods with quality materials and hence denying the allegations made by the complainant regarding unfair trade practice.  The 2^nd opposite party also filed written version in tune with the written version filed by the 1^st opposite party.  According to the 2^nd opposite party they have conducted a thorough inspection by several personals and on examination, it was revealed that the damage to the tyre was due to external scoring caused due to the impact of some sharp object while the vehicle was in motion. The 2^nd opposite party vehemently denied the allegation of the complainant that the tyre is having manufacturing defect.  The 2^nd opposite party also contended that there is no deficiency in service or unfair trade practice from the side of the opposite parties and prayed for dismissal of the complaint.                      
4. Evidence in this case consists of PW1 and Ext.P1 to P5 from the side of the complainant.   The commission report is marked as X1.  The 2^nd opposite party filed proof affidavit as DW1 and Ext.D1 to D3 marked from the side of the 2^nd opposite party.
5. Issues to be considered:

(i). Whether the complainant is a consumer or not?

(ii) Whether there is any deficiency in service and unfair   

      trade practice on the part of the Opposite Parties?

 (iii). Whether the complainant is entitle to the relief claimed

       in the complaint?

(iv). Order as to cost?

6. Heard both sides.  Perused affidavit, documents and records.   All the above issues were considered together for the sake of convenience.  To substantiate the case of the complainant, the complainant himself sworn an affidavit as PW1 and Ext.P1 to Ext.P5 were marked.  The commission report is also marked as Ext.X1.  Ext.P1 is the copy of the bill issued by the opposite parties to the complainant dated 30/04/2011.  Ext.P2 is the copy of the claim forwarding docket.  Ext.P3 is the insurance report of the 2^nd opposite party dated 12/05/2011.  Ext.P4 is the bill issued from the Ambadi Tyre’s dated 07/05/2011 for purchase of a new tyre.  Ext.P5 is the copy of the RC book of the vehicle.  The complainant was cross examined by the opposite parties. To defend the case the 2nd Opposite Party sworn an affidavit as DW1 and Ext.D1 to Ext.D3 were produced and marked. 
7. The purchase of the tyre by the complainant on 30/04/2011 from the 1st Opposite party by paying Rs.7750/- is admitted.  The document produced by the complainant which is marked as Ext.P1 i.e. the invoice issued by the 1^st Opposite Party to the complainant also proved the fact of purchase of tyre by the complainant for consideration.  The document produced and marked on behalf of the complainant as Ext.P2 which is the claim forwarding docket is dated 04/05/2011.   Ext.P2 claim forwarding docket contains the signature of the complainant as well as the 1st Opposite Party.  In the Ext.P2 document dated 04/05/2011, it is endorsed that the cause of removal as per customer is "side wall damaged".  A perusal of Ext.P2 will go to show that the complainant has entrusted the defective tyre with the 1st Opposite Party with a complaint of side wall damage on 04-05-2011.  It is pertinent to note that the said tyre was purchased on 30/04/2011 by the complainant by paying Rs.7750/-.  It further reveals that the alleged damage was caused within 3 days from the date of purchase and the tyre was handed over to the 1^st Opposite Party on the 4th day itself i.e. on 04/05/2011.  Hence by producing Ext.P1 & Ext.P2 documents, the complainant has proved that the tyre purchased by the complainant from the 1^st Opposite Party by paying Rs.7750/- was damaged within 3 days from the date of purchase and the same was handed over to the 1st Opposite Party on the 4^th day itself.  The contention of the Opposite Parties are that the purchase of the tyre was for commercial purpose and hence the complainant is not a consumer.  We are unable to accept this contention raised by the Opposite Parties, as the complainant has established that he has purchased a product from the Opposite Parties by paying consideration.  Further it is evident that he is not dealing with any tyre selling business for making profit.  The document marked as Ext.P5 by the complainant shows that the complainant is the owner of the vehicle and the complainant stated in the complaint as well as in the affidavit that he is the person who is driving the vehicle and these facts were not disproved by the Opposite Parties.  Further the complainant stated that he is plying the vehicle for earning his livelihood.  From the above observations, we find that the complainant is a consumer and this Commission has got jurisdiction to entertain this complaint.   The main contention raised by the opposite parties are that the complainant was expected only to carry load with less tonnage and that admittedly the complainant was carrying full/overload of hollow bricks which is admittedly a heavy material and that the complainant in order to make undue profit was negligent in carrying such heavy materials like overload of hollow bricks and further contented that the alleged cracks were seen on the side wall of the tyre and the same can occur if the tyre happens to hit with a sharp object, if the vehicle is carrying heavy loads above permitted limit.  We have gone through all the documents produced from both sides and the affidavits and nowhere it is found that the complainant admitted that the vehicle was carrying overload goods.  The contention of the Opposite parties that  "admittedly there is overload" is not supported by any evidence and hence we are not able to agree with the contention of the Opposite Parties that the damage was caused due to carrying of overload. More over if the damage was due to overload, definitely that would have affected the other three tyres also.  
8. In order to disprove the claim of the complainant the 2^nd Opposite Party produced three documents as Ext.D1 to D3.  The document Ext.D1 is the Inspection report issued by the 2^nd Opposite Party (which is also marked as Ext.P3).  Ext.D2 is the claim forwarding docket (which is also marked as Ext.P2).  Ext.D3 is the letter addressed to the 1^st Opposite Party by the 2nd Opposite Party.  Ext.D3 letter is dated 9/5/2011 by which the 2^nd Opposite Party returned the item to the 1^st Opposite Party in furtherance of the Inspection Report of the 2nd Opposite Party.  But Ext.D1 Inspection Report says that they have thoroughly inspected the subject item on 11-05-2011.  It is strange to note that how the 2^nd Opposite Party can have a thorough inspection of the subject item on 11-05-2011 as the subject item was already returned to the 1st Opposite Party by the 2^nd Opposite Party on 09-05-2011 as per Ext.D3 letter dt.09-05-2011.    In view of this ambiguity, we are unable to rely on the documents produced by the Opposite Party claimed to be an Inspection Report.   
9. Another important aspect in this case is that the complainant has taken steps to test the tyre from the concerned lab.  The report issued by the Lab is marked as Ext.X1.  A perusal of Ext.X1 Report shows that on examination of the tyre it was observed that, five number of cuts/score of length about 8cm, 5.5cm, 6cm, 3cm and 1cm length are seen on one of the side walls.  Another observation is that the hardness of side wall is about 70 Shore A and that of the tread is 72 Shore A.  According to Ext.X1 report no other physical damage was seen on the tyre.   The conclusion of Ext.X1 report is as follows: "The damages like cuts/score on the side wall of tyres are usually caused by concentrated stresses on the tyre side wall.  This may happen due to the road hazards or impact with external sharp metal piece or any external sharp objects while the wheels are on motion.  Hence the damage cannot categorically stated to be due to manufacturing defect."   The observations in Ext.X1 report is also in tune with the Ext.D1 report of 2nd Opposite Party which was referred above.   In the Commission application i.e. IA No: 44(A)/2015, a specific point sought to be ascertained is to the effect that "to ascertain what was the sudden reason for developing cracks in a brand new tyre".  It is pertinent to note that the said tyre was purchased on 30/04/2011 by the complainant by paying Rs.7750/-.  It further reveals that the alleged damage was caused within 3 days from the date of purchase and the tyre was handed over to the 1st Opposite Party on the 4th day itself i.e. on 04/05/2011.  In Ext.X1 only a general opinion is seen given.  The expert report ought to have observed regarding the present condition of the tyre and whether the same can be used for plying a vehicle or that how the extent of damage affects the utility of the brand new tyre.  Regarding all these aspects the Ext.X1 report is silent.  Hence we find that the observations and general conclusions in Ext.X1 report will not in any way help this Commission to resolve the issues under consideration.  The Honourable Supreme Court of India in V Krishna Rao v/s Nikhil Super Specialty Hospital & another reported in  2010 (5) SCR 1 held that the Fora is not bound in every case to accept the opinion of the expert.   In view of the above discussions, we find that the Ext.X1 report is bad for want of material particulars and hence we are not accepting the conclusions made in the said report which is general in nature.
10. It is pertinent to note that the damage was caused within three days from the date of purchase.  The complainant paid Rs.7750/- to the Opposite Parties as consideration for the same.  Ext.P4 is the bill issued from the Ambadi Tyre’s dated 07/05/2011 for purchase of a new tyre by paying Rs.7900/-.  It is evident that the complainant was forced to purchase another new tyre within a week from the date of purchase of the tyre from the opposite parties.  In view of the above discussions we find that there is deficiency in service and unfair trade practice on the part of the Opposite Parties.    It is also evident from the available evidence before this Commission that the complainant has suffered mental agony and financial loss due to the act of the Opposite Parties.  As the mental agony and financial loss to the complainant was caused due to the deficiency in service and unfair trade practice of the Opposite parties, we find that the Opposite Parties are liable to compensate the loss sustained by the complainant.  In view of the above discussions we find that this is a fit case to be allowed in favour of the complainant.

In the result the complaint is partly allowed.  The Opposite Parties are jointly and severally directed to pay a sum of Rs.15,000/- (Rupees Fifteen Thousand Only) as compensation along with Rs.5000/- (Rupees Five Thousand Only) as cost of this proceedings to the complainant within 30 days from the date of receipt of this order failing which the amount except cost shall carry an interest @ 9% per annum from the date of order till the date of payment or realization.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 28^th day of December,  2023.

C.C. No. 188/2011

APPENDIX

1. COMPLAINANT’S WITNESS:

2. COMPLAINANT’S DOCUMENTS:

3. OPPOSITE PARTY’S WITNESS:

4. OPPOSITE PARTY’S DOCUMENTS:

5. COURT EXHIBIT

                                                                                                                                           Sd/-

                                                                                                                                PRESIDENT