IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 31st day of December, 2021.
Filed on 03.02.2020
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Smt.C.K.Lekhamma, B.A, LLB (Member)
In
CC/No.35/2020
between
Complainant:- Opposite party:-
Sri.K.Cherian 1. The Authorised Signatory
Kulakkattil House M/s Good Year India Ltd
Old Thirumala, 1st Floor, ABW Elegance Tower
Mullackal.P.O. Plot No.8, Commercial Centre,
Alappuzha-688011 Jasola, New Delhi-110025
(Party in Person) (Adv. Jayan.C.Das)
2. The Authorized Signatory
M/s Alleppey Pavalam Tyres &
Mill Stores, West of Iron Bridge
St.George Street, Alleppey
(Exparte)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the Consumer Protection Act.1986.
Complainant’s case briefly stated is as follows:-
1. Complainant purchased 4 Goodyear 185/70 R14 assurance T/L tyres for his swift D-zire car on 2/9/2013 from the 2nd opposite party. It was manufactured by 1st opposite party and was having a warranty of 5 years. Complainant noticed a bulge on one of the tyres in January 2018 and it was reported to the company on February 2018. The representative of the company made an inspection of the tyre on 15th February and rejected the claim on frivolous and wrong reasons. It was informed that though the tyres were purchased on 2/9/2013 the manufacturing date of the tyre is 2012 which is one year before the sales and the validity of warranty it is from the date of manufacture. Normally when a consumer item is purchased the warranty starts from the date of purchase and not from the date of manufacture. This unnatural clause was not mentioned to the complainant before sale of the tyre. Complainants claim was rejected on the ground that the warranty had expired on 2016 which should have been valid till 1/9/2018. The manufacturing date of the tyre was not disclosed to the complainant at the time of sale and it was not mentioned in the invoice.
2. From the inspection report it is revealed that the tyres are manufactured in Indonesia. Company has not disclosed the date of manufacture to the consumer and sold the tyre giving an impression that the warranty start from the date of sale which is an unfair trade practice. Complainant was using the car sparingly and had only run for 44525 kms in 52 months which is approximately an average of 862 kms a month. Normally such tyres would have given an average of 1 lakh kilometer. The company has imported cheap ordinary tyres, from abroad and sold the same in India assuring a warranty of 5 years. The defect of the tyre happened because of the poor quality which is a deficiency of service.
3. Complainant after receiving the inspection report on 16/2/2018 made a complaint and a reply email was sent stating that the tyre is out of warranty. Though complainant demanded certain clarifications and mode of settling the claim it was not furnished. Complainant had sent letter on 16/2/2018 to the opposite parties. On 28/3/2018 1st opposite party had send a reply rejecting the complaint and stating that it is not covered under warranty. Though on 26/12/2018 complainant sent a letter requesting the company to arrange a fresh inspection it was not done. Hence the complaint is filed for a direction to the opposite parties to pay Rs.16,400/- being the cost of tyres, Rs. 10,000/- as compensation and for Rs.10,000/- as litigation expenses.
4. 1st opposite party filed a version mainly contenting as follows:-
The complaint is based on absolute false averments and are set-out in a manner to blatantly mislead this Commission. The warranty period is from 5 years from manufacturing period or till the tread is worn up to “TWI” ( ie, tread wear indicators) whichever is earlier. Since the warranty period begins from the date of manufacturing and not date of invoice, the present complaint needs to be dismissed summarily. In the complaint it is stated that the tyres have already run for 44,525 kms and thus it is highly unlikely that there was any manufacturing defect. If there was any manufacturing defect the tyres would have been unable to ply this many kilometers. On receiving the complaint this opposite party deputed a technical expert Mr. Sreejesh to inspect the tyres in question on February 16, 2018. The spot inspection was done and it was found that there was no manufacturing defect and observed that the said tyre was damaged over the side walls. It occurred due to driving over pot holes/curbs/dividers/bumps at high speed. When the tyre is impacted by an external object at high speed the ply cords inside the tyre get damaged and eventually causing a bulge on the sidewall of the tyre. The said condition does not occur due to the manufacturing related defect in the tyre but occurs when the tyre is run over road hazards/pot holes etc. The condition developed in the tyres is not covered under the warranty policy. As per Clause B(1)(iii) of warranty policy any damage in a tyre due to insufficient or improper maintenance, including without limitation, failure to rotate tyres regularly, wheel misalignment, worn suspension components, improper tyre mounting or demounting, tyre/wheel assembly imbalance, or other vehicle conditions, defects or characteristics are expressed excluded from its warrantable condition. As per Clause B (2) (vii) the warranty does not cover sidewall damage in tyres due to prolonged high speed driving over uneven roads/ bumps/dividers. Hence the present complaint is not maintainable. The onus to prove manufacturing defect is on the consumer. Hence the complaint may be dismissed with cost.
2nd opposite party remained exparte.
5. On the above pleadings following points were raised for consideration are:-
1. Whether there is any deficiency in service from the part of opposite parties as alleged?
2. Whether the complainant is entitled to realize an amount of Rs.16,400/- being the value of 4 tyres as prayed for?
3. Whether the complainant is entitled to realize an amount of Rs.10,000/- as compensation?
4. Whether the complainant is entitled to realize an amount of Rs.10,000/- as litigation expenses?
5. Reliefs and cost?
6. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A15 from the side of the complainant and the oral evidence of RW1 from the side of 1st opposite party.
7. Point No.1 to 4:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A15.
8. Rw1 is the customer service engineer of the 1st opposite party. He filed an affidavit stating that on 16/2/2018 he conducted a spot inspection and there was no manufacturing defect in the tyres. There was no damage on the sidewall on its outside. The tyres were manufactured during May 2012 and the complaint occurred after the warranty period which is 5 years. On inspection there was no symptoms of manufacturing defect and so there was no deficiency of service from the part of 1st opposite party.
9. PW1, the complainant purchased 4 tyres for his Maruti Swift D-zire car as per Ext.A1 bill on 2/9/2013 from the 2nd opposite party for Rs.16,400/-. The tyres were manufactured by 1st opposite party M/s Goodyear India Ltd. During January 2018 he noticed a bulge on one of the tyre and the fact was reported to the company on 7/2/2018. RW1, the customer service engineer of the 1st opposite party inspected the tyres on 15/2/2018 and rejected the claim on a contention that there was no manufacturing defect. Though PW1 made several correspondence with the opposite parties they were not ready to redress his grievance. Finally he has filed this complaint to realize Rs.16,400/- being the value of tyres along with compensation of Rs. 10,000/- and Rs.10,000/- as litigation expenses. 1st opposite party filed a version contenting that immediately on getting the notice RW1 was deputed to inspect the tyres. On inspection it was found that there was no manufacturing defect. It was also contended that the tyre is having a warranty of 5 years from the date of manufacturing. Since the complaint was filed after the warranty period 1st opposite party has no liability to pay the amount or replace the tyres. Hence they contented for dismissal of the complaint. 2nd opposite party remained exparte. Complainant got examined as PW1 and marked Ext.A1 to A15. The customer service engineer of 1st opposite party was examined as RW1.
10. The fact that PW1 purchased 4 tyres from the 2nd opposite party on 2/9/2013 is not in dispute since it is proved by Ext.A1 bill. The price shown in Ext.A1 bill for 4 tyres is Rs.16,400/-. The case advanced by PW1 is that while he was using the tyres during January 2018 he noticed a bulge on one of the tyres and the matter was reported to the company on 7/2/2018. RW1 inspected the tyres on 16/2/2018 and issued Ext.A15 spot inspection report which reads as follows. “ Tyre inspected. Do not suffering from any manufacturing defects. Sidewall impact bruise break found. Such damages are not claimable under warranty policy. Also particular tyre is out of warranty as it aged more than five years from the date of manufacturing.” So the main contentions taken by 1st opposite party to reject the claim is that the complaint was out of warranty. It is contended by 1st opposite party that the warranty is for 5 years from the date of manufacturing. PW1 has got a case that when he purchased the tyres from the 2nd opposite party it was not told to him that the warranty starts from the date of manufacture of the tyre, as contented in the version and the evidence of Rw1. The contention taken by 1st opposite party is that the warranty started from the date of manufacture of the tyre. If that is so if one purchase the tyre during 2020 which was manufactured during 2015 on the date of purchase itself, the warranty has already expired. Normally warranty of the product starts from the date of purchase of the same. It is a matter of common knowledge that the main ingredient of the tyre is ‘Rubber’ which will loose its rigidity if it is kept idle. The contention taken by PW1 that at the time of purchase he was not informed about the warranty condition is having some force. The date of manufacture is printed in the tyre in a code form. Rw1 explained that the year of manufacture and the week of manufacture can be identified from the serial number of the tyre. The serial number noticed in the tyre is 2012 which shows that the tyre was manufactured on the 21st week of 2012. As rightly pointed out by PW1 a common man may not known this code number in the tyre unless it is explained by the seller. Admittedly Pw1 purchased the tyre on 2/9/2013 and so almost one year warranty period was over on the date of purchase itself. Calculating the warranty from 2012 RW1 stated in Ext.A15 that the tyre is out of warranty since the complaint was made on February 2018.
11. It was pointed out by the learned counsel appearing for the 1st opposite party that complainant has not produced any expert evidence to prove his case. PW1 has explained that the complaint was filed by him without any assistance of a lawyer and he was not knowing about the technicalities. Further RW1 is the customer service engineer of the 1st opposite party and he is an expert having sufficient experience in the field. He has filed Ext.A 15 report after inspection. So a further report is not necessary. PW1 has got every right to attack Ext.A15 report since it was not acceptable to him on valid grounds. The cross examination of Rw1 is also relevant in this case. According to RW1 he had noticed an impact on the sidewall of the tyre with a sharp object ie, inside the tyre. Outside there was only a bulging. It is highly impossible to have an impact with a sharp object inside the tyre without any impact outside. In the later part of cross examination RW1 stated that the defect was noticed in the flat area of the tyre and not on the inner side wall of the tyre. It shows that the so called expert has no consistent case with regard to damage noticed in the tyre. In Ext.A15 report which is seen prepared on 16/2/2018 RW1 stated that the sidewall impact bruise break found. As stated earlier though initially he stated that the impact on the sidewall was on inner side later he clarified that it was on the flat area of the tyre. It is highly impossible to have an impact with sharp object on the inner side wall without any impact on the outside. Here in this case there was only a bulging seen outside. PW1 has got a further case that from Ext.A14 photograph it is seen that the tyre was manufactured in “Indonesia” and it was sold in India without disclosing that it was manufactured in Indonesia.
12. It is true that PW1 purchased the tyre on 2/9/2013 and the defect was noticed during January 2018 ie, after about 4 ¼ year. If the product is having a warranty of 5 years, it was an assurance given by the manufacturer that the product will run without any defect for 5 years and if any defect occurs just before 5 years also the manufacture is liable. So the contention that there was no trouble for about 4 ¼ years is not a ground to reject the case of complainant. From the evidence of record it is crystal clear that after about 4 ¼ years use, one of the tyre became defective. Though RW1 contented that it was out of warranty, it is not acceptable since the fact that the warranty start from the date of manufacture was not informed to Pw1 by 2nd opposite party at the time of purchase of the tyre. As discussed earlier the cross examination of RW1 reveals that he has no consistent case as to where the defect was noticed. In Ext.A3 email dtd. 16/2/2018 the company had informed to PW1 that as a very very case they will replace the tyre on one time basis on pro-rata basis. As per Ext.A15 inspection report by RW1 the tyre was worn out 75% so it appears that company has admitted replacement of one tyre on pro-rata basis. It was not acceptable to PW1. Though PW1 claims Rs.16,400/- being the value of 4 tyres evidence on records shows that only one tyre was found defective. Even now also all the other 3 tyres are running defect free. Hence PW1 is entitled to get the value of one tyre alone. Complainant is claiming an amount of Rs.10,000/- on account of compensation for supplying an old and defective tyre on the pretext of a new tyre. Ext.A2 to A5, Ext.A8, Ext.A10, Ext.A11, Ext.A13 shows that there were several correspondences between complainant and the opposite parties regarding the complaint starting from 15/2/2018. Since the claim was not settled he had approached this Commission for redressing his grievance. Hence he is entitled to get compensation and we are limiting it to Rs.3000/-. These points are found accordingly.
13. Point No.5:-
In the result, complaint is allowed in part.
A) Complainant is allowed to realize an amount of Rs.4,100/- (Rupees Four thousand one hundred only) being the price of one tyre from the opposite parties.
B) Complainant is allowed to realize an amount of Rs.3000/- (Rupees Three thousand only) as compensation from the opposite parties.
C) Complainant is allowed to realize an amount of Rs.2000/-(Rupees Two thousand only) as cost from the opposite parties.
The order shall be complied within one month from the date of purchase of the receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 31st day of December, 2021.
Sd/- Sri.S.Santhosh Kumar(President)
Sd/- Smt. C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - K.Cherian (Complainant)
Ext.A1 - Bill dtd. 2/9/2013
Ext.A2 - Letter dtd/15/2/2018
Ext.A3 - Enquiry
Ext.A4 - Reply Letter dtd.21/2/2018
Ext.A5 - Registered Letter dtd. 16/2/2018
Ext.A6 - Postal Receipt
Ext.A7 - Acknowledgment Card
Ext.A8 - Registered letter dtd. 16/2/2018
Ext.A9 - Postal Receipt
Ext.A10 - Letter dtd. 28/3/2018
Ext.A11 - Registered Letter dtd. 9/4/2018
Ext.A12 - Postal Receipt
Ext.A13 - Registered Leter dtd.26/12/2018
Ext.A14 - Photographs
Ext.A15 - Spot Inspection Report
Evidence of the opposite parties:-
RW1 - Sreejesh.V.P(Witness)
//True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
