Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 320.
Instituted on : 23.08.2013.
Decided on : 09.06.2016.
Jagdish Sing s/o Sh. Surt Singh V.& P.O. Bhaout Tehsil and Distt. Rohtak.
………..Complainant.
Vs.
- Shristi Motors Pvt. Ltd. Opp. Near power house, near Jind bye pass road, Rohtak.
- Hyundai Motor India Ltd.
- Goodyear India Limited, Mathura Road, Ballabgarh, Faridabad-121004, Haryana.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH.VED PAL, MEMBER.
Present: Sh. Pawan Attri Advocate for the complainant.
Sh. Deepak Jain, Advocate for opposite party no.1.
Sh.Rajesh Sharma, Advocate for the opposite party no.2.
Sh.Gaurav Arya Advocate for opposite party no.3.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he had purchased a car on 16.01.2011 from the opposite party no.1 who is authorised dealer of opposite party no.2 and opposite party no.3 is the manufacturer of the tyre. It is averred that the car purchased by the complainant started to create problem in tyres since the date of its purchase i.e. from the beginning. It is averred that complainant reported the matter to the opposite party no.1 various times and made complaints so many times in this regard and the opposite party no.1 told the complainant to inform Goodyear India Ltd. i.e. opposite party no.3. It is averred that the performance of the tyres shows that there is some manufacturing defect in the tyres and that is why the tyre is not working properly and there is vibration and bulge in the tyres and not working properly. It is averred that the authorized representative of the opposite parties checked the tyres and assured the complainant on 17.10.2011 that the same will be replaced very soon as there is some manufacturing defect therein. But the matter was prolonged since long for the reasons best known to the opposite parties. It is averred that complainant requested the opposite parties time and again to do the needful but to no effect. It is averred that the act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed that opposite parties may kindly be directed to replace the tyres of the complainant with a new or to return the cost of tyres to the complainant alongwith interest, compensation and litigation expenses to the complainant.
2. On notice opposite parties appeared and filed their separate written reply. Opposite party no.1 in its reply has submitted that complaint is not maintainable against the answering opposite party as the answering opposite party is neither the manufacturer of car nor of tyres installed in the car which are manufactured by opposite party no.3. On merits it is submitted that it is opposite party op.3 who provide warranty of one year and in case of any fault or defect it is the opposite party no.3 who is liable to replace the tyres. It is, therefore, prayed that the complaint qua the answering opposite party may kindly be dismissed. Opposite party no. 2 in its reply has submitted that the tyres are not manufactured by answering opposite party and manufacturer of the tyre is liable for any warranty upon the tyre and not the answering opposite party. It is averred that the warranty of vehicle in question has already expired on 16.01.2013. It is averred that there is no cause of action against the answering opposite party. It is prayed that the complaint qua the answering opposite party is liable to be dismissed.
Opposite party no.3 in its reply has submitted that opposite party deputed one of its Engineers to inspect the tyres alleged to have become defective. On thorough and diligent inspection, the Engineer vide his Spot Inspection Report dated 17.10.2011 had made observation that tyres having irregular wear/Uneven wear—this is a condition attributed to variety of conditions like improper inflation/vehicle related anomalies(geometry/mechanical) & related to application which is not covered under Goodyear’s warrantable condition. It is averred that the defect if any occurred due to vehicle related condition and not as a result of tyres as is been alleged. It is averred that there is no manufacturing defect in the tyres and as such complainant is not entitled to any claim. Opposite party prayed for dismissal of the complaint with costs.
3. Both the parties led evidence in support of their case.
4. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C5 and the evidence of complainant was closed by the order dated 28.05.2015 of this Forum. On the other hand ld. Counsel for the opposite party no.1 made a statement that there is no claim against the opposite party no.1 so he does not want to give any evidence. Ld. counsel for the opposite party no.2 has tendered affidavit Ex.RW2/A and Ex.R2/1 and the remaining evidence of opposite party no.2 was closed by the order dated 28.10.2015 of this Forum. Ld. counsel for the opposite party no. has tendered affidavit Ex.RW3/A to Ex.RW3/C and has closed his evidence.
5. We have heard ld. counsel for the parties and have gone through the material aspects of the case carefully.
6. In the present case it is not disputed that on the complaint of complainant regarding defects in the tyres, the same were checked by the opposite party no.3 and as per the spot inspection report Ex.C2 there was defect of vibration and buldge and the Service Engineer of the company as per his report had mentioned that tyre having irregular wear. The contention of ld. counsel for the opposite party no.3 i.e. manufacturer is that this is a condition attributed to variety of conditions like improper inflation/vehicle related anomalies(geometry/mechanical) & related to application which is not covered under Goodyear’s warrantable condition.
7. After going through the file and hearing the parties it is observed that the report produced by the opposite parties is based upon the inspection report of the Service Engineer of the company which is not supported by the affidavit. Moreover the same has not been obtained u/s 13 of the Consumer Protection Act. In this regard reliance has been placed upon the law cited in 2010(2)CPC 126 titled as Merck Ltd.(Formerly known as E Merck(I) Ltd. & Ors. Vs. Hubli Diagnostics Medicate and Research Centre Pvt. Ltd. whereby Hon’ble National Commission, New Delhi has held that: “Mere report of a technician is not sufficient to unless opinion of expert is obtained u/s 13 of the Act”, as per 2011(2)CLT 186 titled as United Auto Centre Vs. Gurpreet Singh Hon’ble State Commission, U.T. Chandigarh has held that: “Tyres got damaged after covering only 2000 kms. within warranty period- Contention that damage caused to the tyres due to defective wheel balancing not substantiated-Held that there is deficiency in service as well as unfair trade practice on the part of OP by not replacing the defective tyres, which were in warranty period and has run only for 2000 kms.- Order of District Forum directing OP to replace the tyres with brand new tyres of same brand with fresh warranty as per company rules and compensation of Rs.5000/- upheld”. Regarding the liability of dealer reliance has been placed upon the law cited in 2011(2)RCR(Criminal)395 titled as M/s Garg Agro Chemicals and another Vs. State of Punjab, whereby Hon’ble Punjab & Haryaya High Court has held that : “Dealer not liable-Dealer merely selling in the same packing as supplied by manufacturer”. In view of the aforesaid law which are applicable on the facts and circumstances of the case it is observed that the opposite party no.3 i.e. manufacturer is liable to replace the tyres. The tyres in question are in the possession of complainant.
8. In view of the facts and circumstances of the case it is observed that the opposite party no.3 i.e. manufacturer shall replace the tyres in question with new one within 15 days from the date of depositing the old tyres by the complainant to the opposite party no.3. Opposite party no.3 is also directed to pay a sum of Rs.3000/-(Rupees three thousand only) as litigation expenses to the complainant. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs.
10. File be consigned to the record room after due compliance.
Announced in open court:
09.06.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member
