SRI.R. VIJAYAKUMAR, MEMBER.

          This complaint is filed Under Section 12 of Consumer Protection Act,.  seeking direction for replacement of defective tyre with a new one or for getting  price of tyre Rs.8500/- along with compensation Rs.50,000/- and other reliefs.

          The averments in the complaint can be briefly summarized as follows:

          The complainant had purchased two 900 x 20 SM99 type MRF tyres from the shop of 1^st opp.party on 23..11.2005 bearing serial Nos. 30611287075 and 30450717075.   The tyre  bearing NO.30450717075 was bulged  at some portion  gradually after  running about 10000 Kms.   When the complainant approached the   1^st opp.party and intimated the matter  he told that it is a manufacturing defect and assured that the company would replace the defective tyre with a new one.   The defective tyre entrusted with the 1^st opp.party.   After some  days the complainant received an  inspection docket bearing No.61781 dated 14..6..2006 from the 2^nd opp.party demanding  Rs.6050/-  for a new tyre.

          The tyre was bulged only due to the manufacturing defect.  Normally the tyre of the said type will last for running 35 to 40 Kms.  After receiving the inspection Docket, the complainant again approached the 1^st opp.party for getting  back the defective tyre.  But the 1^st opp.party told that the tyre was entrusted with the opp.party company.

          The complainant had issued a legal notice on 6..7..2006 to all the opp.parties demanding  replacement of defective tyre with a new one free of cost or repayment of its price.  But  the opp.parties  did not care to his demand or even to reply the notice.  Hence the complainant filed this complaint seeking  reliefs.

          The1st opp.party remained absent.  Hence set exparte

          The opp.parties 2  and 3 filed joint version contenting   the allegations raised in the complaint.   The contentions can be comprehended as under:

          The complaint is not maintainable as the tyre was fitted in  a stage carrier which the complainant has been used for commercial purpose.   The complainant is the owner of a lot of vehicle including the said vehicle.  Hence the complainant is not a consumer.

          No remark made by the 1^st opp.party that the defect in the tyre is manufacturing defect.  No assurance was given by him for replacement of tyre with a new one.   The responsibility  of 1^st opp.party is only to receive the tyre and forward the same to the  company for inspection.

          After receipt of the defective tyre, the same was thoroughly inspected by the  TSE of opp.parties Mr. Kurian Thomos.  On his examination it is revealed that the tyre was damaged due to improper use.   There is no manufacturing defect.   A copy of the inspection report  sent to the complainant also.   The statement regarding the life time of tyre also is baseless.  It will depend upon many factors like Road condition, inflation of tyre mechanical condition of vehicle etc.  However the complainant had used the tyre for 7 month after purchase.

          At the time of examination the tyre in question having a skid depth of 3 mm as against 19 mm.  It reveals that 84% of tread has been wornout and the complainant had  enjoyed 84%  of the life time of the tyre.  It was in these circumstances the opp.parties, without prejudice and as a good will gesture  offered  new tyre on payment  of Rs.5960 + tax   The complainant is charged only for the service already enjoyed by him.   Copies of offer letter forwarded to the complainant and to the 1^st opp.party.  But the complainant has not reverted to the opp.party.

          On receipt of the legal notice sent by the complainant the opp.parties had given proper reply.   The allegation that no reply was given to the lawyer notice is absolutely false.   The complainant was asked to collect the tyre but it was not complied .   There is no deficiency in service from the part of opp.party.  Hence the complaint is liable to be dismissed.

The points that would arise for consideration are:

1.     Whether the complaint is maintainable in this forum?

2.     Whether there is any deficiency in service from the part of opp.party?

3.     Compensation and cost.

  The complainant filed affidavit.  He was examined as PW.1  Exts.P1 to P5 marked.  The expert was examined as PW.2.   Ext. X1 marked.

From the side of opp.parties DW.1 examined Ext. D1. marked.

Point 1

          The 1^st contention of the opp.parties is that the complaint is not maintainable in the forum as the complainant had  the tyre stage carrier which was used for commercial purpose and carrying on business only with profit motive.   According to the opp.parties, the complainant is running business involving a chain of vehicle in a commercial basis

          According to the complainant the complaint is maintainable in the forum as the complainant is conducting the business in the name  Achu Travels as his livelihood.   There is nothing to show that it is commercial in nature.   While in cross examination he had stated that Rm³ ss{UhÀ BWv Hcp _ÊmWv F\n-¡p-f-fXv Ønc-ambn Rm\m-Wp HmSn-¡p-¶Xv Q. H¶n IqSp-X _Êv-D-s­-¶pT hvy-h-km-bm-Sn-Øm-\-¯n HmSn-¡p-¶-Xm-sW-¶pT ]d-bp¶p A  AÃ

Even though the opp.parties 2 and 3 alleged that the complainant is running business involving a chain of vehicles, no evidence produced to prove this contention.  Hence the contention regarding maintainability will not sustain.

Point 2 and 3

          According to the complainant, the tyre  supplied to him by the opp.party is having  manufacturing defect.  Normally the said          Type   of tyre will last for 35 to 40 Kms.  But  tyre in the present case lasted only for 10000Kms.

          According to the opp.parties there is no manufacturing defect regarding this alleged tyre 84% of the life of the tyre  has been already utilized.  On receipt of the tyre it was thoroughly examined by the Technical Service Engineer of 2^nd and 3^rd  opp.party and the  defect was detected as tread separation caused due to the improper use of the tyre.   There is no such rule that the tyre should last till 35 to 40 thousand Kms running.

          The tyre sent for detailed inspection and expert opinion.  The report was produced and marked as Ext. X1.  It is stated in the report that no bulging was noted while tyre was in non inflated  condition.  When the tyre was inflated without rim no bulging could be observed  due to the low air pressure.   The tyre could not be examined much inflated condition as they could not arrange proper  rim for the tyre The expert pointed out two reasons by which bulging of tyre could be developed.  One is manufacturing defect and the other is abruptly  running into a pathole or sharp and large object on the road.

          While in cross examination also nothing was brought out from him other than the observations and conclusions made by him in his report.

          While in chief examination of PW.2 the expert witness had stated that Rim HmS#p¡qSn BsW-¦n am{Xsa inflated condition          bulging ImWm³ Ign-bpT    “  Tread seperation manufacturing  defect sIm­pT D­m-ImT .He had further stated that complaint se hnh-c-§Ä tyre  se  identification mark DT h¨p  verify  sNbvXm.  Rm³    sNbvXcomplaint manufacturing defectaqe-hpT D­m-Im-T.   While in cross examination the learned counsel for the opp.parties put the question that]c#ntim-[-\-k-a-b¯p  It­m  ?PW.2 answered   that bulging Bbn-cp¶p AXp-t\m#v#n-bn«v I­nà AXv  bulging CÃm-¯-Xp-sIm-­pv Bbn-cn-¡nà   It is to be noted here that he had stated in his report itself that bulging can be seen only in inflated condition with rim.

          From the observations and conclusions in the X1 Expert report and the statements made by PW.2  while  in examination, the chance of manufacturing defect could not be ruled out

The defect pointed out in Ext. D1 is tread separation.  It. Is not  explained in Ext. D1 the method adopted for the inspection also not explained.   While in chief examination DW.1, the technical service Engineer stated that “tread separation  BsW-¶mWv ]cn-tim[-\-bn sXfn-ªXv  Improper Air inflation BWv AXn-\p-Im-c-WT Hmtcm tyre \pTrecommended capacity depend sNbvXp recommended air pressure Fgp-Xn-bn-«n-­m-IpT AXv under inflation B-bm tyre flex BIm³ km²-y-X-bp-­p#v A{]-I-cmTcontinuous  Bbn  flexBb. heat D­mbn tread  separation D­m-ImT Excessive inflation Bbm tytr ³s#droad  contact part Ipd-bpT Centre part of tyre Bbn-cn-¡pt  total inflationhcp-¶Xv Heat ˆIqSn tread separationD­m-ImT  He had further stated that tread separation D­m-Ipt¼mÄ part  \p#v  bulging  hcmT

          It is pertinent to note here that the complainant is a driver and he had purchased one more tyre at the same time and that tyre also used in the same vehicle.  If the complainant had exercised improper airinflation due to his ignorance definitely this defect will happen to the other tyre also.  It is also pertinent that the opp.party had not  challenged the fact that in normal course, this type of type will last for 35000 to 40000 Kms.  The complainant has no complaint regarding the other tyre.

          The observation of improper Air inflation and conclusion of tread separation pointed out  byTSE in Ext. D1 and the contention raised by the opp.parties on the basis of Ext. D1 were totally defeated

          Another  allegation in the complaint is, on getting the inspection docket [Ext.P1] the complainant approached the 1^st opp.party to get the defective tyre back.  But the 1^st opp.party told him that it was entrusted with  the company.   The complainant issued notice on 6..7..2006 to all of the opp.parties.  But they did  not turned up  and not taken care even for issuing a reply notice.

          According to the opp.parties 2 and 3,   the inspection made by their TSE reveals that there is no manufacturing defect . 84% of the life of tyre was utilized.   The opp.party had produced Ext. D1 inspection Docket prepared at the time of inspection by the Technical Engineer of Opp.parties.   The complainant had produced Ext.P1 inspection docket given by the opp.parties to the complaint .  The learned counsel for the complainant argued that nothing has  been stated in Ext.P1 regarding defect of the goods, reason for the defect, utilization enjoyment of 84%  by the complainant etc.   We have perused Ext. D1 and P2.   Details of inspection defect of goods, reason for defect were not mentioned in Ext.P2.  But  it is stated as defect description tread searation in Ext. D1.  It is also mentioned in Ext. D1  skid depth 3 mm and percentage of wear as 84.%  But  these were  also not mentioned in Ext. P1    While in coss examination also PW.1 has stated that “”84% D]-tbm-Kn-¨-Xmbn ]d-ªn-«nÃ

          The opp.parties argued that Ext.P2 is part of Ext. D1.  But on perusal we find that D1 and P2 are separate and complete documents.   DW.1 admitted while in cross that Ext.P2  is the document sent  by the opp.parties to the complainant and there is no details regarding the inspection, defect  ascertained and reason for the defects etc.

          Even though the opp.parties 2 and 3  stated in their version that they had sent reply for the legal notice issued by the complainant, not produced any evidence to prove the same.

          Considering at the facts,  circumstances and based on the points discussed above we are of the opinion that there is deficiency in service from the part of opp.parties.   We have also considered the fact that  the complainant had used the tyre for more than 6 months.

          In the result, the complaint is allowed in part.   The opp.parties are directed to  replace the defective tyre with a new tyre of the same   brand  and size on receipt of Rs.3000/- .  The opp.parties are further directed to pay compensation Rs.2500/- and cost Rs.1500/- to the complainant

          The order is to be complied with within one month of the date of receipt of the order

Dated this the 24^th  day of April, 2012.

I N D E X.

List of witnesses for the complainant

PW.1. B. Prakash

PW.2.  Dr. K.T. Thomas

List of documents for the complainant

P1.Copy of bill

P2.  Inspection Docket

P3.  Advocate notice

P4.  Postal receipt

P5.  Acknowledgement cards

X1. Expert report

List of witnesses for the opp.parties

DW.1. – Pramod

List of documents for the opp.parties

D1. Inspection docket