Chandigarh

DF-II

CC/458/2016

Anil Kumar - Complainant(s)

Versus

The General Manager, Ultimate Hyundai - Opp.Party(s)

Arjun Shukla Adv.

04 Oct 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

============

Consumer Complaint  No	:	458 of 2016
Date  of  Institution	:	01.07.2016
Date   of   Decision	:	04.10.2016

 

 

 

 

 

Anil Kumar s/o Late Sh.Prem Nath, Aged 45 years, R/o # 2185/1, Sector 45-C, Chandigarh    

 

             ….Complainant

Versus

 

1]  The General Manager, Ultimate Hyundai, Plot Nol.154-155, Indl. Area, Phase-I, Chandigarh.

 

2]  General Manager, Goodyear India Limited, Mathura Road, Ballabgarh, Faridabad (Haryana) 121004

   

 ….. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN            PRESIDENT

MRS.PRITI MALHOTRA        MEMBER

           

 

Argued By: Sh.Arjun Shukla, Counsel for the complainant.

Sh.A.S.Khara, Counsel for Opposite Party-1.

Sh.Vishal Satija, Counsel Opposite Party-2.

 

 

PER PRITI MALHOTRA, MEMBER

 

                                As per the case, the complainant purchased Hyundai Xcent Car on 27.9.2015 from Opposite Party NO.1 for Rs.5,44,318/- (Ann.C-1).  It is averred that within 7 months of purchase and after covering only 4200 km, the two tyres of the car started showing bubbles in them (Ann.C-2). It is also averred that when the complainant brought this matter to the notice of Opposite Party No.1, it flatly refused to change the defective tyres saying that the defect has been caused by driving the car at a high speed over the potholes. It is pleaded that the complainant, teacher, used the car for going to School and back and for local needs only and thus, has driven the car only for 4200 kms in last 7 months and therefore, it is evident the defect in the tyres of the car is a manufacturing defect.  A legal notice was also sent to the OPs, but to no avail. It is also pleaded that the complainant had to purchase one tyre for Rs.3825/- from his own pocket and also used the spare tyre, in order to avoid risk of accident. Alleging the above act & conduct of the OPs as deficiency in service, hence, this complaint has been filed.

 

2]       The Opposite Party NO.1-Ultimate Hyundai has filed reply and admitted the sale of car in question to the complainant.  It is stated that as per terms & conditions of the warranty (Ann.OP-1), the tyre and tubes are not covered under warranty and this warranty is the entire warranty given by the Hyundai Motors India Limited (hereinafter referred to as HMIL) for Hyundai Vehicles and no dealer is authorised to extend it. It is also stated that on intimation regarding the defect in the tyres, the answering Opposite Party informed the complainant regarding warranty procedure and informed the manufacturer of the tyre to help the complainant regarding the alleged defect in the tyre.  The concerned official of the Opposite Party NO.2 –Goodyear India Limited inspected the vehicle on 15.4.2016 and as per his report, the tyre in the vehicle has been damaged not due to inherent manufacturing defect and accordingly the customer acknowledged the report (Ann.C-4).  Pleading no deficiency in service and denying rest of the allegations, it is prayed that the complaint be dismissed.

 

3]       The Opposite Party NO.2-Goodyear India Limited has also filed reply stating that on receipt of the complainant’s complaint regarding the damaged condition of the Rear Left(RL) and Front Left (FL) tyres of his car, the Opposite Party NO.2 immediately lodged a complaint on 15.4.2016 and deputed a Technical Expert Mr.Ompal Kamboj, to inspect the said tyres of the complainant’s car alleged to have developed a manufacturing defect.  It is also stated that on inspection of said tyres on 18.4.2016 by the said Technical Expert, he observed in his Spot Inspection Repot that the tyres suffered from damage on sidewall which is usually caused due to impact/pinching of sidewall on an external object/road hazard and wheel rim, hence not covered under warrantable condition as per the Warranty Policy of Opposite Party No.2 Company.  It is further stated that the Technical Expert further observed that the Alloy Wheels of the car had signs of impact in the form of rubber impressions on them (Ann.R-2).  It is pleaded that the bulging in tyres occurs when the vehicle is driven over obvious road hazards, pot holes/kerbs/bumps/debris on the road/railway crossings and/or impact by external objects.  It is also pleaded that the bulging of tyre is not the result of manufacturing defect.  Denying rest of the allegations, it is prayed that the complaint be dismissed.

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the parties and have also perused the entire record.

 

6]       In nutshell, the complainant’s grouse is that his car Hyundai Xcent, purchased from Opposite Party NO.1 for consideration of Rs.5,44,318/-, after completing 4200 kms. within 7 months, troubled as the two tyres of the car started showing bubbles in them. On complaining, he as wrongly apprised that the defect has been caused by driving the car at a high speed over the potholes.  Denying such allegations, the complainant claimed that the defect in the tyres is the manufacturing defect, for which the OPs are under obligations to replace or are liable for the refund of the price.  The complainant also claimed that in order to make the vehicle moving, he bought one tyre for Rs.3825/-, which too is accountable for the OPs to refund.

 

7]       The dealer of the car i.e. Opposite Party No.1 denying any allegation to be true, claimed that they provided necessary assistance to the complainant for the redressal of his grievance qua the defects in the tyres, tried their level best and even write an e-mail on 10.5.2016 to the Manufacturer of the tyres to help the complainant on goodwill basis and also called the concerned technical expert to examine the defect in the tyres.  Further claimed that as per the warranty policy, stipulated by Hyundai Motors India Limited (hereinafter referred to as HMIL), the tyres and tubes are not covered under the warranty and this warranty is the entire warranty given by the HMIL for Hyundai Vehicles and no dealer is authorised to extend it. 

 

8]       It is the submission on behalf of Opposite Party NO.2 that on receipt of complainant’s complaint regarding the damaged condition of the Rear Left (RL) and Front Left (FL) tyres of his car, technical expert Mr.Ompal Kamboj, was deputed to inspect the said tyres, who has more than 8 years of experience in dealing with tyres and tyre related issues and has acquired knowledge and skills on the subject through continuous and diligent study and practice over the years.  Further submitted that the technical expert, so appointed vide its ‘Spot Inspection Report’ submitted that the tyres suffered from damage on sidewall, which is usually caused due to impact/pinching of sidewall on an external object/road hazard and wheel rim, hence not covered under warrantable condition as per the Warranty Policy of Opposite Party NO.2 Company. For the sake of convenience, the observations made by the Technical Expert Ompal Kamboj, in his ‘Sport Inspection Report’ dated 18.4.2016, as mentioned in the written reply of Opposite Party NO.2, is reproduced as under:-

Complaint No.	Q-1504160015
Date of Complaint	15.04.2016
Date of Inspection	18.04.2016
Customer Name	Anil Kumar
Dealer Name	Ultimate Hyundai
Vehicle No.	CH01BD3350
OEM Model	Xcent
Kms Covered	4,214
Tyre Size	165/65 R14 DP-H1 TL
Concern reported by Customer	Sidewall Bulge

 

Wheel Position	RR	RL	FR	FL	Other
Serial No.		0815		0815
Mold No.		B354746		B352426
Inflation (psi)		30		30
NSD Data (mm)		6.1		5.5
% Worn Out		11%		20%
Condition Code		#36		#36
Claim Disposition/ Status		REJ		REJ
Observation	“On observation, found damage on sidewall, which may be due to impact/pinching of sidewall on an external object/road hazard and wheel rim.  No Manufacturing deficiency found. Hence, GY Non Warrantable condition as per GY Warranty Policy.  Note: Alloys have rubber impressions on some locations.”

 

9]       The Opposite Party NO.2 vide its reply also submitted various factors responsible for causing the bulging of the tyres and at the end claimed that the defects in the tyres in question are not a result of any manufacturing defect.

 

10]      We have meticulously gone through the submissions made by the ld.Counsel for the parties and the documents made available on record by the parties concerned.  After thoroughly going through the reply of the OP No.1, we come to the conclusion that no deficiency in service is made out against Opposite Party NO.1 i.e. Dealer, which rendered proper service by apprising the grouse of the complainant to the manufacturer of the car in question and in order to help the complainant went upto the extent to explain the whole position to the manufacturer and requested it to redress the grievance of the complainant on goodwill basis, vide e-mail dated 10.5.2016, the contents of which are reproduced as under:-

         “Dear Mr. John

The tyres are of Good Year make.  The company has rejected the claim saying that this is due to external damage and as such are not covered under warranty.  This is a standard reply from all the tyre manufacturers.  I have not come across even a single case in last two years where a tyre has been accepted under warranty by any of the manufacturer.  Copy of technical report received from M/s Good Year is being sent separately.

The customer has sent us a legal notice for premature failure of tyres and there after rejection of her claim.  I shall impress upon you to take up this issue with the tyre co. suitably or let the claim be accepted by HMIL on goodwill basis so that we can avoid legal complications. Kindly confirm.”

 

         The contents reproduced above absolves the Opposite Party NO.1 from any liability.

 

11]      Now we concentrate upon the reply filed by Opposite Party NO.2 i.e. Goodyear India Limited -Manufacturer of the tyres in question.  It is gathered that the Technical Expert, so deputed by Opposite Party NO.2 namely Sh.Ompal Kamboj, has also filed his affidavit in support of his Report submitted by him to Opposite Party NO.2. However, the affidavit of Sh.Ompal Kamboj, Technical Expert is the replica of the reply filed by Opposite Party No.2.

 

12]      A thorough perusal of the affidavit of Sh.Ompal Kamboj, Technical Expert and thorough perusal of his ‘Spot Inspection Report’ (Annexure R-2), shows that the report submitted by Sh.Ompal Kamboj, Technical Expert, does not corresponds with the submissions made by Opposite Party NO.2 in its reply as well as in the affidavit filed by Sh.Ompal Kamboj, Technical Expert.

 

13]      In order to differentiate, we would like to reproduce the facts mentioned by Opposite Party NO.2 and Sh.Ompal Kamboj, Technical Expert, qua the various factors responsible for the bulging of the tyres:-

“that both the tyres i.e. Rear Right (RR) and Front Left(FL) had developed a sidewall bulge which is caused due to impact break i.e. pinching on sidewall area.  I state that the sidewall of a tyre develops a bulge when the vehicle is driven over road hazards, pot holes/kerbs/ bumps/debris on the road/railway crossing and/or impact by external objects.  I state and submit that, when a tyre hits a sharp object on the road, the force from the weight and speed of the vehicle is focused on a small area of contact which compresses the tyre enough that the inside of the sidewall gets pinched and damaged causing a small hole inside tyre liner layer which is nothing but a transfer of the impact force to the inside of the tyre. The impact can also damage the sidewall cords and significantly weaken the tyre. 

Xxxxxxx

Xxxxxxx

I state that the above observations of the Technical Expert, Mr. Ompal Kamboj in the Spot Inspection Report dated April 18.2016 are supported by the Tyre Conditions Analysis Guide of the Indian Tyre Technical Advisory Committee (ITTAC). Copy of the cover page and relevant page no.PCR 2-C of the sasid guide are already on the record of this Hon’ble Forum and may be marked as Exhibit RW 1/3 “colly”.

 

12.     I state that tyre is a rubber product and as per the settled principle, life of a tyre depends on various factors such as terrain, tyre inflation/pressure, load speed operation, the driving habits of the driver of the vehicle as well as the kind and quality of roads on which they are being driven.  The bulge is usually caused by breakage of inner plycords and such kind of damaged cannot be attributed to manufacturing related conditions.  The sidewall of a tyre which is made up of the rubber and ply cords (2 major compounds of a tyre) could get pinched between the road surface and rim when the vehicle is driven over an obstacle or external object causing severe impact of the tyre sidewall and due to such impact plycords are broken/weakened resulting in a side wall bulge.  The plycords are the skeleton of a tyre and are responsible for holding and sustaining inflation pressure, as such and damage to side wall plycords will cause the side wall rubber to stretch outward under the influence of air inside the tyre chamber and will develop a bulge at the impact location.  The Technical Expert, Mr. Ompal Kamboj rightly rejected the claim of the Complainant not being covered under the Warranty Policy or warrantable condition of my Company.  I state that my Company provides warranty only against defects in material quality or workmanship as per Clause A of the Warranty Policy “Warranty-Eligibility”.  Where the damage in a tyre is due to external factors, as in the present Complaint, the same is not covered under the Warranty Policy or warrantable condition of my Company…………….” 

 

14]      The above submissions clearly establish that in order to find-out the actual cause of damage to the tyres, it is needed that a thorough inspection of the tyres be made by demounting them and by making the internal inspection of the same, which process in the present case had completely been ignored/side-lined by the Technical Expert, as the Original Scan Copy of the ‘Spot Inspection Report’ (Ann.R-2), reveals that while the inspection of the tyres were made, it was done in mounted position and to befool and mislead this Forum, the said crucial factor has not been mentioned by Opposite Party NO.2 in its written reply/statement as well as by Sh.Ompal Kamboj, Technical Expert in his affidavit. Thus it is clearly established that no inner inspection of the tyres in question was done in order to ascertain the right cause of bulging of the tyres and the said ‘Spot Inspection Report’ was got prepared by making external observations only.  Thus, it is right to conclude that the Opposite Party NO.2 has wrongly rejected the claim of the complainant qua the defects in the tyres in question, by wrongly relying upon the report of Sh.Ompal Kamboj, Technical Expert, deputed by Opposite Party No.2, who failed to made thorough inspection of the tyres in question by demounting them in order to find the right cause/factor responsible for bulging of tyres in question. Thus the plea of the Opposite Party No.2 that there is no manufacturing defect in the tyres in question, has no legs to stand. This clearly proves not only the deficiency in service on the part of Opposite Party no.2 but also its indulgence into unfair trade practice for defeating the rightful claim of the complainant for which they are under legal obligation to compensate the complainant for the loss as well as harassment, suffered by him.

 

15]      In view of the above discussion, we are of the opinion that deficiency in service and unfair trade practice on the part of the Opposite party No.2 has been proved and thus, the complaint deserves to be allowed against the Opposite Party No.2. Accordingly, the complaint is allowed against Opposite Party NO.2 and dismissed qua Opposite Party NO.1. The Opposite party No.2 is directed as under:-  

a]  To pay an amount of 11,475/- being the cost of the two defective tyres as well as the cost of one tyre purchased by the complainant;

 

b]  To pay Rs.10,000/- towards compensation for causing harassment by rendering deficient services and by resorting to unfair trade practice;

c]  To pay an amount of Rs.5000/- towards litigation expenses.

 

         The above said order shall be complied with by the Opposite Parties within 30 days of its receipt, failing which they shall be liable to pay interest @12% p.a. on the above awarded amount as at sub-para [a] & [b] above from the date of filing this complaint till it is paid, besides paying litigation expenses.

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

04^th October, 2016                                                                                                                                                                   Sd/-  

 (RAJAN DEWAN)

PRESIDENT

 

 

 

          Sd/-

 (PRITI MALHOTRA)

MEMBER