BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENA KUMARI. A : MEMBER
SMT. S.K. SREELA : MEMBER
C.C.No: 321/2010 Filed on 12/10/2010
Dated : 30..09..2011
Complainant:
Jiji. J.J., S/o Jayaras, Jalaja Bhavan, Chani, Kanjiramkulam – P.O., Thiruvananthapuram – 695 524.
(Party in person)
Opposite parties:
Rohini Tyres (A Unit of Electro Dynamic) Panavila Junction, Thiruvananthapuram – 01.
MRF Ltd., TC No: 26/1279 (1), Panavila, Thiruvananthapuram – 01.
(By Advs. Nair Ajay Krishnan & C. John Lawrence)
This O.P having been heard on 24..09..2011, the Forum on 30..09..2011 delivered the following:
ORDER
SMT. S.K.SREELA, MEMBER:
The allegations in the complaint are as follows: The complainant had purchased 2 tyres manufactured by the 2nd opposite party, from the 1st opposite party. Out of which after some days, one tyre failed in its performance. Accordingly, on 18/9/2010, as per the instruction of the 1st opposite party, complainant entrusted the tyre with the 1st opposite party and since on the basis of the inspection of the 2nd opposite party, the tyre was found to be defective, the complaint was given a new tyre on 27/9/2010. That instead of giving a new tyre free of cost, the opposite parties had given a tyre after collecting Rs. 804/- from the complainant which according to the complaint is against justice. Hence this complaint for compensation and costs.
2. 1st opposite party has contended in their version as follows: The complaint is not maintainable either in law or on facts. There is no manufacturing defect in the tyres sold to the complainant. It is true that the complainant had handed over the tyres to the opposite party complaining certain defects. 1st opposite party duly sent the tyres to the 2nd opposite party for rectifying the defect. 2nd opposite party inspected the tyres and found that the damage was caused due to break above head, which was not due to any manufacturing defect. 2nd opposite party replaced the damaged tyres, with new tyres out of goodwill and charged Rs. 714.03 +local tax, ie. Rs. 804/- towards the estimated usage of the tyres. 1st opposite party handed over the new tyres to the complainant and collected Rs. 804/- from him. The amount of Rs. 804/- charged on the complainant was towards the estimated usage of the tyres, which was paid by the complainant without any protest. The amounts claimed by the complainant under various heads in the complaint are imaginary and excessive. 1st opposite party is not liable to pay any amount to the complainant. None of the reliefs prayed for in the complaint are allowable.
3. In the version filed by 2nd opposite party, it has been contended that the complainant is not a consumer and that the complaint is not maintainable. Complainant has accepted the goodwill gesture offer and received tyre. The complainant is estopped from making any complaint since the award was accepted without any protest. That the present complaint is not maintainable since the defective tyre has not been got inspected from the approved laboratory by the complainant as is required under Sec. 13 (1)(c) of the Consumer Protection Act. 2nd opposite party has neither given any performance guarantee / warranty regarding tyre to the complainant nor authorized any person to give any guarantee / warranty in this regard. The guarantee / warranty, if any, is only regarding manufacturing defects in the tyre. The tyre of size 7.50 x 16 SUPERLUG 50 bearing Serial No. 11125222710 was received for examination from Rohini Tyres on 20/09/2010. The tyre was thoroughly examined by 2nd opposite party's Technical Service Personnel. After the inspection he fond that the tyre was damaged due to “Break above Bead” caused due to Excess Flexing of the tyre which normally occurs as a result of inadequate air pressure. When the vehicle run with that tyre with inadequate air pressure the side wall will bulge (flex) excessively resulting in over heating of the tyre and subsequent failure had been noticed in the tyre, which is not a manufacturing defect. 2nd opposite party's Technical Service Personnel had come to the above conclusion only after subjecting the said tyre to a thorough and detailed examination. However, without prejudice and as goodwill gesture 2nd opposite party offered replacement of new tyre to the complainant based on Non Skid Depth left on the tyre at the time of its inspection. The amount of Rs.714.03 claimed by 2nd opposite party is only 13% of the price of a new tyre. The original cost of a new tyre is Rs. 5373 + Tax and offered new tyre at Rs. 714.03 + Tax which is only 13% (ie. Portion) of the tyre utilized. Therefore the complainant is charged only for the service already enjoyed by him. 2nd opposite party is not liable to replace the tyre since the tyre in question is free from manufacturing defect. No cause of action has arisen against 2nd opposite party as alleged in the complaint and the complaint is liable to be dismissed for the reasons stated above. 2nd opposite party's liability as a manufacturer arises only if the tyre is having manufacturing defect. All the allegation in the complaint to the contrary are false baseless and hence denied.
Complainant has been examined as PW1 and 2 witnesses were examined on the part of the complainant as PW2 & PW3. Exts. P1 to P7 were marked on the complainant's side. DW1 has been examined on the part of 2nd opposite party and Exts. D1 to D4 were marked.
4. The issues for consideration are:
Whether the tyre supplied to the complainant suffered from manufacturing defect?
Whether there has been any deficiency in service on the part of the opposite parties?
Whether the complainant is entitled for any of the reliefs claimed?
5. Points (i) to (iii): There is no dispute regarding the purchase of tyres by the complainant. Further it is an admitted fact that the defective tyre has been replaced by the 2nd opposite party. Here the allegation of the complaint is that, instead of replacing the defective tyre with a new one free of cost, the opposite parties have collected Rs. 804/- from him illegally. Furthermore the complainant alleges that there has been a delay of 10 days in giving the tyre to him. The opposite parties contend that the tyre in dispute is free from any manufacturing defect and the tyre was replaced with a new one only as a gesture of goodwill. Further it has been contended that after the inspection of the tyre by the 2nd opposite party's Technical Service Personnel, it was found that the tyre was damaged due to Break above Bead caused due to Excess Flexing of the tyre which normally occurs as a result of inadequate air pressure.
6. From Ext. P2 it could be seen that the tyres were purchased on 9/7/2010 and as per Ext. P1 the replacement has been done on 27/9/2010, which is about 3 months after such purchase. Complainant's claim has been forwarded, as per Ext. P3/D1 on 18/9/2010 and the inspection report has been marked as Ext. D2 which reads as follows: “We have thoroughly inspected the subject item on 24/09/2010. Our inspection of the subject item reveal that it was damaged due to Break above Bead. Though this is not due to any manufacturing defect of the subject item without prejudice as a special goodwill gesture we are pleased to offer you a brand new item of the same size and brand for Rs. 714.03 plus local taxes as applicable. You are therefore requested to enquire with our dealer (whose address and Phone number is given below) within 7 days from the date of receipt of this letter and make arrangements to collect the same on a convenient date”.
7. Though the opposite parties have taken out the contention that there is no manufacturing defect, since the tyre in dispute is with the opposite parties, the burden of proving the same before the Forum as per Sec 13(1) of the Act is on the opposite parties. Besides the inspection report of the Technical Service Person of the MRF itself, opposite parties have not cared to adduce an independent expert opinion on this aspect and prove their contention. Since the tyre has become defective within 3 months of its purchase and in the absence of any expert Commissioner's report by the opposite parties to prove that the tyre became defective due to complainant's negligence, we have no difficulty to conclude that the complainant has been supplied with a defective tyre. When the tyre supplied to the complainant is suffering from manufacturing defect that too within 3 months of its purchase, we find that the question of maintainability of the complaint on the ground that he is not a consumer, does not arise for consideration.
8. From the above, we are of the view that, the complainant has succeeded in establishing his complaint. The act of opposite parties in delivering a tyre which had manufacturing defect and replacing the same after collecting Rs. 804/- from the complainant amounts to deficiency in service on their part. The complainant is found entitled for Rs.2,000/- towards compensation and costs.
In the result, the complaint is allowed. Opposite parties shall jointly and severally refund Rs. 804/- along with Rs. 2,000/- to the complainant within 2 months from the date of receipt of the order failing which the entire amount shall carry interest @ 9% from the date of receipt of Order.
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 Forum, this the 30th day of September, 2011.
S.K. SREELA, MEMBER.
G. SIVAPRASAD,
PRESIDENT.
BEENA KUMARI.A, MEMBER.
ad.
C.C.No: 321/2010
APPENDIX
I. Complainant's witness:
PW1 : Jiji. J.J
II. Complainant's documents:
P1 : Original invoice dated 27/9/2010
P2 : " " 9/7/2010
P3 : Copy of claim forwarding docket
P4 : Original receipt dated 27/9/2010
P5 : " " 18/9/2010
P6 : " " 27/9/2010
P7 : " " 27/9/2010
III. Opposite parties' witness:
DW1 : Sirish Anand
DW2 : Suresh Kumar. J.R
DW3 : Wilfred Wills
IV. Opposite parties' documents:
D1 : Copy of claim forwarding docket
D2 : " Inspection report dated 28/10/2010
D3 : " Invoice dated 25/9/2010
D4 : " Invoice
PRESIDENT
