CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM Present Sri.Santhosh Kesavanath.P. President Smt.Bindhu M.Thomas Member Sri.K.N.Radhakrishnan Member. Thursday, the day of 25th, February, 2010. CC.No.33/08 Petitioner P.K.Vijayan Karthika, Peroor.P.O. Ettumanoor. (Adv.K.Divakaran) Vs. Opposite parties. 1. Proprietor T.B.S. Tyre Shoppy Y.W.C.A.Road, Kottayam. 2. M.R.F. LTD. xxxv/570A, N.H.47 Palarivattom, Kochi-682025. (Adv.Jose Cherian Muricken) O R D E R Smt.Bindhu M.Thomas, Member. The complainant purchased two tyres for Rs.3300/- from the first opposite party's shop. One of the tyres having details 145/80R-12ZVTS WITH Sl..No.40824494207 was cracked on side walls at three places. According to the complainant as the tyre had run only 541 km, the damage occurred within warranty. The complainant took the tyre to the first opposite party and demanded replacement. The first opposite party informed the complainant that the tubes and tyres are having guarantee of manufacturing company and they alone are liable to replace the tyre. The first opposite party sent the tyre to the second opposite party for examination and the second opposite party issued a rejection advice stating that as they don't find any manufacturing defect in the tyre and therefore cannot offer any replacement. The complainant alleged that the said damage occurred only due to manufacturing defect. Hence he filed this complaint claiming replacement of the tyre or refund of the purchase money, compensation and cost. Notice was served to both the opposite parties. First opposite party called absent -2- and was set exparte. The second opposite party entered appearance and filed version with the following main contentions. (1) The complainant is required to prove the averment regarding purchase of tyres by the complainant, the consideration paid, fitting the said tyres on the vehicle etc. The complainant is required to prove that the vehicle tyre had run only 541 kms. The technical service personnel of second opposite party examined the tyre and found that the tyre was damaged due to external damage/scoring while the vehicle was in motion. This is not due to any manufacturing defect of the tyre. Tyre being a rubber product its life depends upon many factors like terrain, speed, load, driving habits and also being a rubber product it cannot be fool proof against impact with external objects. Since the tyre under complaint was damaged not due to any manufacturing defect, the second opposite party is not liable for any replacement damage and losses.
Hence the second opposite party prayed to dismiss the complaint with compensatory cost. Points for consideration are: (1)Whether there is any deficiency in service or unfair trade practice on the part of opposite parties?
Reliefs and costs?
Evidence consists of affidavits filed by both the parties and exhibits A1 to A7 and B1 to B4.
-3- Point No.1. Heard both sides and perused the documents. The original of the receipt issued by the first opposite party dtd. 2/11/07 is produced and marked as exhibit A1. From exhibit A1, it is clear that the petitioner purchased two tyres for a total price of Rs.3300/-. The carbon copy of the claim forwarding docket is produced and marked as exhibit A2. On scanning exhibit A2, it is seen that the first commodity item of exhibit A1 receipt with size, brand and PR 145/80 R-12-ZVTS, serial No.40824494207 became damaged within 22 days of its purchase. (2)Eventhough the petitioner is a layman, seeing the nature of cracks on the tyre, he felt that the said cracks might have caused due to the manufacturing defects of the tyre. And naturally because of the abovesaid reason the petitioner informed the said damage to the first opposite party and it was sent to the second opposite party for examination. Undisputedly the alleged damage of the tyre occurred within the warranty period. The second opposite party issued a rejection advice and the said document is produced and marked as exhibit A3. As per exhibit A3 the tyre was inspected on 28/11/07 and the damage noticed is external damage/scoring. Through exhibit A3 the second opposite party refused the petitioner's request for replacement of the tyre saying reason that there is no manufacturing defect in the said product. But nothing is mentioned in the second opposite party's claim rejection advice about the nature of examination conducted by them and on what basis they came to the conclusion that there is no manufacturing defect. So in our opinion the examination conducted by the second opposite party is not proper and reliable. (3)The damaged tyre was referred by the forum to the Rubber Research Institute of India for getting an expert opinion. The scientist Shri.K.N.Madhusoodhanan of the said institute examined the damaged tyre and submitted a report endorsed by the Joint Director of the said institute before the forum. The expert's report is marked as exhibit C1. As per exhibit C1, four cracks were seen on oneside of the tyre and two of them -4- were diagonally opposite to the side wall. Accordingly to the expert the said diagonal cracks can be as a result of stress on the tyre from the vehicle aggreavated by running in under inflated condition. The expert further opined that no signs of external impact are seen on the tyre. The repudiation letter issued by the MRF to the petitioner dt. 24-1-2008 is produced marked as exhibit A5. As per exhibit A5, the 2nd opposite parties inspection revealed that the tyre had a ''side wall injury'' due to the tyre coming in contact with some sharp external object while the vehicle was in motion. On scanning exhibits A3, A5 and C1, it is understood that the opinions of expert commissioner and opposite party are contradictory to each other. The expert commissioner had undoubtedly concluded that no signs of external impact are seen on the tyre whereas the opposite party repudiated the complainant's claim solely on the reason of external damage/scoring. (4)The petitioner argued that the C1 report says only ''it can be'' and therefore it never confirms that the alleged damages were caused due to the running of tyre in under inflated condition. According to the petitioner the C1 report only pointed out a chance that may cause cracks on the tyre. The petitioner further argued that if the vehicle has been running in under inflated condition, the stress caused would have caused cracks not only on the tyre but also on the thin air filled tube inside the tyre. According to the petitioner as the tube inside the tyre is in good condition, the two diagonal cracks and the other two cracks for which no reason is given by the expert might have caused due to the poor quality of the tyre. Whereas the counsel for the opposite parties counter argued that as the expert has not opined that the alleged defects as manufacturing defects, they are not liable to replace the tyre or refund the purchase price. According to the expert commissioner, the conclusions arrived in the C1 report are based on physical/visual examination made on the tyre as they don't have full fledged facilities for testing the same. So in our opinion/this forum is not bound by the report of the experts which is to a large extent advisory in nature
-5- (5)At the bottom of exhibit A1 bill, it is written that the complaints regarding the tyre and tube will be decided after conducting expert examination by the engineer of the company. Nothing is placed on record by the opposite parties to prove the mode of expert examination conducted by them. In our view, the opposite party failed to conduct an expert examination of the tyre as promised in the exhibit A1 bill. In our opinion the act of second opposite party in not conducting the examination of the damaged tyre properly and giving an unreliable report might have forced the petitioner to file this complaint before the forum. So conducting an improper inspection and giving a rejection advice which is not supported by any reliable evidence is a clear case of deficiency in service. Point No.1 is found accordingly. Point No.2. In view of the findings in point No.1 the petition is allowed. The petition is ordered as follows. The second opposite party will pay Rs.2000/- as a compensation for the mental agony, monetary loss and time loss caused to the petitioner besides litigation cost Rs.1500/-. This order will be complied with within one month of receipt of its copy failing which the above mentioned sums will carry interest @ 9% p.a. till realisation.
Smt.Bindhu M.Thomas Member Sd/- Sri.Santhosh Kesavanath.P. President Sd/- Sri.K.N.Radhakrishnan Member. Sd/-
-6- APPENDIX Ext.A1 Original bill dt. 2/11/07 Ext.A2 Claim forwarding checked Ext.A3 Inspection docket. Ext.A3(a) Cover of the OP Ext.A4 Letter issued by the petitioner to the opposite party dt.14/12/07. Ext.A5 Repudiation letter dt.24/1/08 Ext.A6 Document showing certificate of posting with post office's date stamp. Ext.A7 The book maintained by the petitioner.
The commission report of expert is marked as exhibit C1. Documents of 2nd opposite party. Ext.B1 Attested copy inspection docket. Ext.B2 Attested copy of claim forwarding docket Ext.B3 Attested copy of inspection docket Ext.B4 Attested copy of inspection docket.
By Orders,
Senior Superintendent. Kgr/5 copies.
| | HONORABLE Bindhu M Thomas, Member | HONORABLE Santhosh Kesava Nath P, PRESIDENT | HONORABLE K.N Radhakrishnan, Member | | 
