Haryana

Yamunanagar

CC/759/2012

Rakesh Vohara S/o Ram Parkash - Complainant(s)

Versus

The Fort India Private Ltd. - Opp.Party(s)

Brijesh Chauhan

05 Jun 2017

ORDER

  BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                          Complaint No. 759  of  2012.

                                                                                          Date of institution: 18.07.2012

                                                                                          Date of decision: 05.06.2017.

    Rakesh Vohra aged about 43 years son of Late Ram Parkash, resident of Village Jorion, Tehsil Jagadhri, District Yamuna Nagar. 

                                                                                                            …Complainant.

                                    Versus

1. The  Ford India Private Limited, S.P. Koil Post, Chengalpattu 603204 through its Managing Director.
2. The Kanav Motor Private Limited 483/C-VI Old Court Road, Jagadhri, District Yamuna Nagar, through its Manager/ Proprietor/ Partner.
3. The MRF Limited W-9, Industrial Area, Yamuna Nagar, District Yamuna Nagar, Haryana, through its Manager/ Proprietor/Partner.

                                                        

                                                                                                              ...Respondents

 

CORAM:        SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

                        SMT. VEENA RANI SHEOKAND, MEMBER.  

 

Present: Sh. Brijesh Chauhan, Advocate, counsel for complainant.   

               Sh. P.K.Kashyap, Advocate, counsel for respondents No.1

               Sh. Vikas Aggarwal, Advocate, counsel for respondent No.2.

               Sh. H.S.Shadipur, Advocate, counsel for respondent No.3.

 

ORDER

 

1.                  Complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 amended up to date.              

2.                  Brief facts of the present complaint, as alleged by the complainant, are that on 01.05.2011 the complainant had purchased a car make Endeavour BSIV bearing Chassis No. MAJUXXMR2UBD25748 Engine No. BD25748 from respondent No.1 (hereinafter respondents will be referred as OPs) who is the authorized dealer of OP No.2. The said car is having tyre of MRF Company which was manufactured by OP No.3. All the five tyres fitted in the said car are of MRF i.e. Op No.3 company and are in warranty period, but due to manufacturing defect, the said tyres have received cracks therein and the matter was reported to the OP No.2 and as per their advice the matter has been put into the knowledge of OP No.3 but despite having every knowledge of the matter intentionally the trye in question have not been changed by OPs. The matter has been put into the knowledge of the Op No.2 since the time of its service on 26.09.2011 at 9956 KM and the matter has also been reported to the Op No.3 since October, 2011 but despite several requests, the defective tyres are still to be replaced. After having been aggrieved with the illegal and unlawful acts of the OPs, on 14.01.2012, the complainant has served a legal notice upon the OPs but despite of receiving the said legal notice instead of complying with the same gave an evasive reply. Lastly, prayed for directing the OPs to replace the defective tyre immediately in the car of the complainant with new branded tyre of same company or with any other good performing company and further to pay compensation as well as litigation expenses. Hence, this complaint.

3.                     Upon notice, OPs No.1 to 3 appeared and filed its written statement separately. OPs No.1 filed its written statement by taking some preliminary objections such as the present complaint filed by the complainant in respect of his car i.e. Ford Endeavour purchased on 01.05.2011 does not level even a single allegation of manufacturing defect or deficiency of service or unfair trade practice. In the absence of any allegation of illegal commission or omission leveled against the OPs No.1, the present complaint is not maintainable against answering OP in as much as no cause of action has ever arisen to array the OPs No.1  and on such ground alone, the OPs No.1 ought to be deleted from the array of OPs. The entire case of the complainant revolves around the alleged defect in the tyres manufactured by OP No.3. The complainant had raised a grievance against defective tyres after the vehicle had already covered a distance of more than 9956 KMs. As per the instructions received from the dealership, it is stated that the claim of the complainant for tyre replacement was forwarded to MRF. After examining the claim of the complainant and examining the tyres on 01.10.2011, MRF had rejected the same after concluding that cut on the tyre was due to impact with some sharp object and therefore arrived at a finding that there was no manufacturing defect. The complainant is guilty of suppression as he has concealed the fact that even though the OPs No.1 was not liable for the purported defect in the tyres of the subject car, however, as a bonafide gesture for customer friendly approach, the OPs No.1 had offered to pay 50% of the tyres costs. This gesture of the OPs No.1 was also conveyed to the complainant vide email dated 22.12.2011 addressed by the officers of the Ops No.1 to the complainant. However, the complainant still proceeded to issue a legal notice dated 14.01.2012 which was duly responded by the OPs No.1 through its legal counsel vide reply dated 09.02.2012. Even, otherwise, the claim of the complainant is not supported by any documentary evidence and hence liable to be dismissed in terms of Section 26 of the said Act after imposing exemplary and punitive costs and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.

4.                     OP No.2 filed its written statement by taking some preliminary objections such as complaint is totally false and frivolous, since the defect in the tyre is a entire liability of Op No.3 being a proprietary item as per terms, hence, only Op No.2 is liable, hence the complaint be dismissed qua OP no.2; the present complaint is wrong, incorrect and hence denied because the complainant has no case. So much so, the vehicle is out of warranty and the complaint is hopelessly time barred; no case is made out in favour of the complainant and against the OP No.2. Thus, the name of the OP No.2 be deleted from the array of OPs at all. As per report and instructions from the answering OP, M/s MRF Company has rejected the tyre after examination on 01.10.2011 with the report “cut on the tyre was due to impact with some sharp object” and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint qua OP No.2.

5.                     OP No.3 filed its written statement by taking some preliminary objections such as complaint is not maintainable either in law, facts and circumstances of the case and is liable to be dismissed in limine. The complainant has made only a vague allegation and has not even mentioned serial number of the tyre alleged to have been damaged. 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 section 13(1)(C ) of the Consumer Protection Act. The OP No.3 cannot be held liable unless there is manufacturing defect in the tyre i.e. due to usage of defective material/faulty workmanship and on merit denied the facts mentioned in the complaint as neither the OP No.3 gave any performance guarantee/warranty regarding tyres to the complainant nor authorized any person to give any guarantee/warranty. The guarantee/warranty, if any, is only regarding manufacturing defects in the tyres, i.e. due to usage of defective material/faulty workmanship. It has been submitted that the tyre of size 245/70 R16 ZVRL TL (4 Nos) bearing serial No. (i) 44324171111, (ii) 44014130711 (iii) 44382690611 ( iv) 44448470611 were inspected at M/s Kanav Motor Pvt. Ltd. on 01.10.2011 and the said tyres were thoroughly inspected by the OP No.3 Technical Service Personnel Mr. Shashikanth Takur. From this report, it has been revealed that the said tyre having Sl. No. 44324171111 was damaged due to through cut on tread due to impact with some sharp object, Sl. No. 44014130711 was damaged due to through cut on tread due to impact with some sharp object, Sl. No. 44382690611  was damaged due to no manufacturing defect, Sr. No. 44448470611 was damaged due to no manufacturing defect. This is not due to any manufacturing defect of the tyre. The above conclusion was reached only after subjecting the said tyre to a thorough and detailed examination. The inspection reports dated 01.10.2011 was sent to the complainant. Necessary instruction was given to the complainant to collect the tyres from Kanav Motor Private Ltd. The tyres mentioned in the complaint are of a true and merchantable quality absolutely free from any manufacturing defect. Lastly, prayed for dismissal of complaint against the OP No.3.

6.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and documents such as Photo copy of repair order as Annexure C-1, Photo copy of Bill/receipt of Rs. 16,63,900/- as Annexure C-2, Photo copy of delivery challan as Annexure C-3, Photo copy of email/letter dated 25.11.2011 as Annexure C-4, Photo copy of email dated 26.11.2011 as Annexure C-5,  Photo copy of email dated 10.12.2011 as Annexure C-6, Photo copy of email dated 22.12.2011 as Annexure C-7, Photo copy of email dated 27.12.2011 as Annexure C-8, Copy of legal notice dated 14.01.2012 as Annexure C-9, Reply dated 09.02.2012 of legal notice as Annexure C-10, Photo copy of reply of legal notice sent by MRF as Annexure C-11, Acknowledgements as Annexure C-12, C-13 and C-14, Postal receipts as Annexure C-15, Photographs of tyres as Annexure C-16 to C-30 and closed the evidence on behalf of complainant.

7.                     On the other hand, counsel for the OP No.1 tendered into evidence affidavit of Dushyanth Jayakumar, Ford India Pvt. Ltd. as Annexure R1/A and documents such as Photo copy of resolution passed by the Board as Annexure R1/1, Photo copy of table of contents standard provision of DSSA as Annexure R1/2 Photo copy of Owner’s manual as Annexure R1/3, Photo copy of email dated 22.12.2011 as Annexure R1/4 and closed the evidence on behalf of OP No.1.

8.                     OP No.2 failed to adduce any evidence, hence evidence of OP No.2 was closed by court order vide order dated 17.04.2017.

9.                     Counsel for OP No.3 tendered into evidence affidavit of Ankit Kumar Singh as Annexure RW3/A and documents such as Photo copy of report No. 07/2011-12 as Annexure R3/1, Photo copy of report No. 06/2011-12 as Annexure R3/2, Photo copy of report No. 05/2011-12 as Annexure R3/3, Photo copy of report No. 04/2011-12 as Annexure R3/4, Power of attorney as Annexure R3/5, Photo copy of reply of legal notice as Annexure R3/6 and closed the evidence on behalf of OP No.3.

10.                   We have heard the complainant as well as counsel for the OPs and have gone through the pleadings as well as documents placed on the file very carefully and minutely. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance, whereas the counsel for OPs reiterated the averments made in their reply and prayed for dismissal of complaint.

11.                    It is an admitted case that the complainant purchased a car make Endeavour BSIV bearing Chassis No. MAJUXXMR2UBD25748 Engine No. BD25748 from OP No.1 who is the authorized dealer of OP No.2 in which the tyres make MRF i.e. manufactured by OP No.3 were fitted. The only version of the complainant is that on 26.09.2011, when the car had run only 9956 KMs, the complainant went to the service centre for its service he came to know that the tyres fitted in the car received cracks and matter was reported to the Op No.2 and OP No.3  but despite several requests, the defective tyres were not replaced by the OPs  and the claim of the complainant was wrongly rejected on the ground that cut on tread of the tyres was due to sudden impact with sharp object while in motion which constitute the deficiency in service on the part of OPs. Learned counsel for the complainant draw our attention towards email dated 22.12.2011 (Annexure C-7) and argued that Op No.1 had admitted that they are ready to bear cost of 4 tyres to the tune of 50% but as the tyres were damaged, so, the complainant refused to accept the same and request them to pay 100% and lastly, prayed for acceptance of complaint.

12                    On the other hand, learned counsel for the OPs argued at length that there was no manufacturing defect in the tyre in question as alleged by the complainant. It has been further argued that the tyres in question were received for examination from Kanav Motors on 01.10.2012 and on inspection it was found that these was damaged due to through cut on tread caused due to sudden impact with sharp object while in motion. Learned counsel for the OPs further argued that the complainant has failed to prove his case by moving any application under section 13(1)( c) of the Consumer Protection Act and draw our attention towards the rejection letter/inspection report dated 01.10.2011 Annexure R-3/1 to R3/4 and lastly, prayed for dismissal of complaint.

13                    After hearing both the parties, we are of the considered view that there is a deficiency in service on the part of OPs No. 3. From the perusal of inspection/rejection report dated 01.10.2011 Annexure R3/1 to R3/4, it is clear that the tyres in question were defective. Further, from this report it is also clear that the tyres in question became defective within a short span of time i.e. from the date of purchase of vehicle i.e. 01.05.2011 to 26.09.2011 when the vehicle/car had run only 9956 Kms. The stand taken by the OPs No.2 & 3 that the tyres in question were damaged due to “through cut on tread due to impact with some sharp object.” seems not genuine and has been created just to save the skin from the liability, otherwise it cannot be presumed that the owner of vehicle will speak lie for a petty amount i.e. cost of tyres. The plea of the OPs No. 3 that no application under section 13(1)( c) of the Consumer Protection Act has been filed by the complainant is also not tenable as when the Ops No. 3 company has placed on file its own inspection report from which it is clear that the tyres in question were defective then there was no need to move another application for inspection of tyres in question as from the perusal of Annexure R-3/1 to R3/4, it is evident that the OP No.3 has rejected the claim of the complainant  only on the ground of service abuse/uneven wear due to some mechanical irregularity condition of the vehicle and through cut on tread due to impact with some sharp object, but OP No. 3 has nowhere mentioned in their reply/report that the tyres in question had cracks due to the negligence of the complainant himself.  No doubt OPs No.1 &2 are only the dealers and manufacturer of the car in question and as per their terms and conditions of the warranty, they have no liability in respect of tyres fitted in the car in question for which the OP No.3 is only responsible, even then Ops No.1 & 2 cannot escape from the liabilities as they have sold the vehicle in question after charging huge amount of Rs. 17,13,900/- from the complainant and were bound to provide everything in order in respect of vehicle in question. Furthermore, the OP No.1 has specifically mentioned in its written statement that as a bonafide gesture for customer friendly approach, the OP No.1 had offered to pay 50% of the tyres costs and the same was conveyed to the complainant vide email letter dated 22.12.2011(Annexure C-7). More particularly, when the Op No.3 refused to accede the genuine request of the complainant, hence, we have no option except to accept the complaint of complainant.

14.                   Now the next question is as to what should be the reasonable compensation to which the complainant is entitled in the present case. We have gone through the contents of the entire complaint, the complainant has not disclosed even a single iota of word about the cost of one tyre or four tyres in question at the relevant time i.e in the year 2011 and the Ops has also not disclosed the cost of tyres in their written statement. From the perusal of Annexure R3/1 to R3/4, product inspection report dated 01.10.2011, it is evident that complainant was having problem in four tyres whereas he alleged in his complaint five tyres, so we have no option except to grant the relief by way of guess work for only four tyres. It will not be appropriate to order to replacement of the tyres in question after a lapse of near about 5 years i.e. as the complainant purchased the car in question in 2011. Moreover, the complainant had used the car in question for more than 6 months and at that time the vehicle had run 9956 KMs. Meaning thereby that the complainant had used the tyres in question to the extent of 1/3^rd, so in the interest of justice and to meet the end of justice, we assess the total loss on account of four defective tyres i.e. Rs. 16,000/-( 4000/- each x 4) by way of guess work.

15.                   Resultantly, we partly allow the complaint of complainant and direct the Op No. 1& 2 to pay a sum of Rs. 16,000/- jointly and severally to the complainant as cost of four tyres and further to pay Rs. 5000/- as litigation expenses within a period of 30 days failing which complainant shall be entitled to recover the interest at the rate of 7% per annum from the date of filing of complaint till its realization. Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned as per rules. File be consigned to the record room after due compliance.

Announced: 05.06.2017         

                                                                                          (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

                                                                                           DCDRF,YAMUNANAGAR.

 

 

                     (VEENA RANI SHEOKAND)                (S.C.SHARMA)

                          MEMBER                                            MEMBER