The petitioner, Dilip Karmakar approached the Forum with allegation against O.P.s [O.P. No. 1) Surajit Traders, S.M. Pally, N.H. 34. Malda 732 101. & 2) Birla Tyres Regional Officers of Birla Tyres Regional Office, Calcutta, 53, Syed Amir Ali Avenue, Kol- 700 019. ] that he on 27.11.2007 purchased 6 tyres of which one tyre being No. 122039/ SEP 07 was found to be damaged. On 15.05.2008, the complainant returned the said damaged tyre to O.P. No.1 for replacement. On 06.06.2008 the O.P. No.1 sent the said tyre to Company (O.P. No.2), who, however, informed the complainant that due to lock rim damage the said tyre got damaged. The report of the company, however, reached the complainant on 11.07.2008. Further case is that his transport business was disrupted from 14.05.2008 to 11.07.2008

                                                                                               

 

for which he has claimed compensation Rs. 500/- per diem, thereby totaling a sum of Rs. 29,500/-.

 

          Though both the O.P.s appeared and filed w/v, but ultimately they did not contest. Hence , the case proceeded ex parte against the O.P.s

 

          Be it mentioned here that on the point of territorial jurisdiction, the matter was agitated, but by order dated 26.02.2009, it was held that this Forum had territorial jurisdiction.

 

          The point now, which is posed for consideration is whether the petitioner is entitled to get any relief or not.

          Admittedly the petitioner on 27.11.2007 purchased the tyre in question from O.P. No.1 which will be revealed from Exbt.No.1. Further admitted position is that the said tyre was sent to the Co. ( O.P. No.2 ) by O.P. No.1 for examination and from claim rejection advice ( Exbt. – 3)it is, however, seen that according to O.P. No. 2 the failure was not due to any manufacturing defect and the cause of failure was LOCK RIM DAMAGE. The petitioner, however, in order to refute the report of the Company (Exbt.-3) has submitted a photograph of the tyre in question ( Exbt.-4). On careful perusal of Exbt. 4, it is seen that the damaged portion is not on the side of the lock rim , but on the other side. So, the question of failure due to lock rim damage as said by the Co.( O.P. No.2) has go no substance. The petitioner’s case has practically been proved from the ex parte evidence of PW-1 coupled with the exhibited documents. There is nothing to disbelieve the Complainant’s case. We are not, however, inclined to provide any damages to the complainant as prayed for because in our view he has not been able to substantiate by any cogent evidence that due to damaged tyre, his transport business could not run properly.

 

          However, having considered the facts and circumstances of the case we are of the view that O.P. Nos. 1 & 2 jointly and / or severally are liable to replace the damaged tyre, in question, by a new one because non-replacement of the same is nothing but tantamount to deficiency in service on the part of O.P.s.

 

          In the results the case succeeds ex parte.

 

          Proper fees have been paid.

                                                                                               

 

 

          Hence,                                     ordered

that Malda D.F. Case No. 77/2008 be and the same is hereby allowed ex parte. The O.P. Nos. 1 & 2 [ 1) Surajit Traders, S.M. Pally, N.H. 34. Malda 732 101. 2) Birla Tyres, Regional Officers of Birla Tyres, Regional Office, Calcutta, 53, Syed Amir Ali Avenue, Kol- 700 019. ] jontly and / or severally are directed to replace the disputed tyre being No. 122039/ SEP 07 by a new one within 6 weeks from the date of this order failing which the petitioner be at liberty to get the order executed through Forum.

 

          Let copy of this order be supplied to the petitioner free of cost at once.

 

          The petitioner is directed to send the copies of order to O.P. Nos.1 & 2 separately under speed post / courier at his own cost.

 

 

Sd/-                                                                              Sd/-

SUMANA DAS                                                                SIBSANKAR PAL

Member                                                                         President