PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.
1. This appeal is directed against order dated 27/11/2000 passed by District Consumer Forum, Bhandara in CC No. 11/2000 by which the complaint is partly allowed.
2. The case of the complaint as set out in the complaint in brief is that he purchased 3 pairs of tyre from the Opposite Party No.2 (for short O.P. No. 2)manufactured by Opposite Party No.1 (for short O.P. No. 1) on 16/02/1999. He fitted one pair of tyre with tubes and flap to his vehicle on 15/03/1999. However, one of tyre of the said pairs was found having defect on 02/04/1999. Its rubber trade was not perfectly moulded to the casing base of the said tyres. The complainant handed over that defective tyre to O.P. 2 on 30/04/1999 for replacement by new tyre. However, the O.P. No.2 did not replace the same as it replacement was rejected by O.P. No.1. The complainant therefore prayed that O.P. Nos. 1&2 be directed to refund Rs. 8500/- towards price of the said tyre with interest or to replace the same by new tyre and to pay him compensation for mental harassment with cost of complaint.
3. The O.P. Nos. 1&2 filed their written version and denied the claim. They submitted that the complainant is not a consumer as he purchased tyres for commercial purpose. They also submitted that there was no manufacturing defect in the tyre. It was damaged due to “Side wall concussion” caused due to impact with some hard surface when the vehicle was in motion and therefore, they are not liable to pay compensation.
4. The District Consumer Forum below after considering the evidence brought on record, believed evidence adduced by the complainant and held that there is manufacturing defect in the tyre and hence it directed the O.P. No. 1 (manufacturer) to replace the said tyre. It alternatively directed the O.P. No. 1&2 to refund Rs.8500/- with interest at the rate of 12% p.a. from 02/04/1999 till its realization by the complaint and also to pay penalty of Rs.25/- per day, if the order is not complied with 30 days.
5. Feeling aggrieved by that order the original O.P. No.1-(manufacturer) has preferred this appeal.
6. We have heard Learned Advocate of the appellant and we have also perused the papers placed before us. The original complainant who is respondent No.1 herein is proceeded exparte. The respondent No.2 is also proceeded exparte.
7. The Learned Advocate of the appellant submitted that in the absence of expert opinion, the District Consumer Forum below has erred in allowing the complaint holding that there is manufacturing defect in the tyre. He relied upon observations made in the following cases:-
i. J.K. Aggarwal & Anr. Vs. Three C. Universal Developers Pvt. Ltd., IV (2011) CPJ 455 (NC). It is observed that any person who avails services from a service provider for commercial purpose is not entitled to invoke jurisdiction of Consumer Fora for redressal of his grievance.
ii. Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd., 2011 CTJ 121 (Supreme Court) (CP). It is observed by Hon’ble Supreme Court that if the goods are purchased for commercial purpose of earning more profits then there can be no dispute that even the services offered alongwith them have to be for the same purpose .
iii. Regional Manager, CEAT Ltd. Vs. Katamreddi Gopal Reddy & Anr., (1997) CPJ 107 (NC). It is observed that a certificate obtained from a Vulcanizer that tyres suffered from manufacturing defect can not be accepted as expert opinion.
Thus the Learned Advocate of the appellant submitted that as impugned order is illegal it may be set aside.
8. In the instant case the complainant in his affidavit stated that he is doing contractor ship for earning his livelihood by means of self employment, as defined U/s 2(1)(d) (i) of the Consumer Protection Act.
9. The tyre manufactured by the appellant was purchased by the complainant from the respondent No.2- dealer which was fitted to his vehicle on 15/03/1999 and it was found defective within 19 days i.e. 02/04/1999. The complainant’s witness Mr. Mehboob Husain s/o Gulam Husain Hirani is holding B.E. (Mechanical) and M.Tec. (Industrial Engineering) qualification and he was serving as an Assistant Professor in Manohar Bhai Patel Institute of Engineering and Technology at Gondia since last 17 years. He filed affidavit in support of the case of the complainant stating that he inspected the tyre on 02/04/1999 and found that it was having manufacturing defect i.e. It’s rubber trade was not moulded perfectly to the casing base so that it left the grip of the casing. We find from his affidavit that he is expert in the field of rubber tyre and his opinion is reliable.
10. The appellant filed finding of its employee that defects was due to side wall concussion. However, affidavit of its employee who gave the said finding is not filed by the appellant. It is not shown how that finding arrived by that employee of appellant. Therefore, production of inspection finding without any reasoning can not be accepted. The plea of the appellant that the defect was occurred due to side wall concussion can not be thus accepted without any basis.
11. We also find that the aforesaid decision relied upon by the appellant are not applicable to the present case as facts and circumstances of the present case are different from those cases discussed above.
12. We thus hold that the Forum has rightly held that there is manufacturing defect in the tyre purchased by the complainant and hence he is entitled to refund of Rs. 8500/- or alternatively replacement of that tyre by new tyre as directed in clause No.1 of the impugned order. Moreover, complainant is also entitled to interest at the rate of 12% p.a. for the aforesaid amount as directed by the District Consumer Forum, below in clause No.1 of the impugned order. The penalty of Rs. 25/- per day in case of non compliance of the order is uncalled for as interest is applied to the aforesaid amount. Hence, the direction for payment of penalty of Rs.25/- per day needs to be set aside.
ORDER
1. The appeal is partly allowed.
2. The direction given under clause No.1 of the impugned order dated 27/11/2000 for payment of penalty of Rs.25/- per day by the appellant and original O.P. No.1 to the complainant is set aside. Rest of the impugned order is conformed.
3. No order as to cost in appeal.
Dated:- 29/08/2013.
