<br /> <br /> <br /> By SRI.K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> This is a complaint filed by the complainant for seeking replacement of tyre and tube, compensation and costs.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> On 214.2005 the complainant purchased two tyre and tube for his vehicle bearing Reg.No.KL2M 7072 for Rs.14,500/-. After 2 weeks the tyre and tube became damaged and he was unable to use the same even for 500 K.M.. The complainant thereupon approached the opp.party seeking replacement of damaged tyre and tube for which the opp.party agreed and the damaged tyre and tube were entrusted with the opp.party on 30.5.2005. On 10.6.2005 when the complainant went to the opp.party firm for taking back the tyre and tube agreed to be replaced the opp.party demanded Rs.3276/-. The tyre and tube were damaged as they were of inferior quality and therefore the opp.party is bound to replace the same as the replacement sought is within the guarantee period. Since the tyre and tube became damaged the complainant is unable to use the vehicle because of which he sustained a loss of Rs.25,000/- . Hence the complaint.<br /> <br /> The first opp.party filed a version contending, interalia, that the complaint is not maintainable either in law or on facts. The complainant is alleging defect in goods. As per the provisions of this Act, in case of any manufacturing defect, the manufacturer is primarily responsible to answer. The subject tyre and tube are the products of M/s. MRF tyres. They are manufacturing products under strict quality control and adhering to the world class technology. There is no room for any manufacturing defect. Since the manufacturer is not impleaded this complaint is bad for non-joinder of necessary parties. When the complainant forwarded the alleged defective tyre and tube to this opp.party it was duly forwarded to the inspection wing of M/s MRF Ltd. at Trivandrum. The technically qualified personnel of MRF inspected and found that there was no manufacturing defect However as a matter of positive customer relationship they have offered replacement of tyre with a new one on prorate basis by considering the distance the tyre covered or in other words, the utility enjoyed by the customer. The replacement on pro-rata basis is the usually accepted practice. The MRF Company Ltd. has offered the replacement of a new tyre on pro-rata basis on payment of Rs.3,011/- and Rs.265/- for a new tube. This pro-rata replacement was duly informed to the opp.party, dealer and the same was conveyed to the complainant. But the complainant was not amenable for this pro-rata offer. The complainant simply want the replacement of new tyre and tube in the place of his old consumed tyre and tube. Since he has already used the tyre and tube for a pretty long period and distance he is liable to sacrifice the utility of the tyre to the extent of use and as such he is entitled to the replacement of tyre and tube only on the pro-rata basis. The complainant is not entitled to get reliefs as sought for in the complaint. No evidence either oral or documentary has been adduced to establish manufacturing defect. There is no cause of action for the complaint. Hence the first opp.party prays to dismiss the complaint.<br /> <br /> The 2nd opp.party filed a separate version contending that the complaint is not maintainable as the complainant is not a consumer. The complainant has purchased the tyres and tubes for using the same in a vehicle used for commercial purpose. The averments in para 3 of the complaint that the first opp.party had agreed to replace the damaged tyre and tube of the complainant as the same was within guarantee period is false . The first opp.party has informed that no such offer to the complainant was given by them. The 2nd opp.party deals with the first opp.party on a principal to principal base and the first opp.party is only authorized to forward the tyre under complaint for inspection by the 2nd opp.party. The tyres and tubes were entrusted to the 1st opp.party only for forwarding the same to the 2nd opp.party. The tyre and tube were received by the 2nd opp.party on 30.5.2006 for its examination, and the technical service engineer inspected the same and the examination revealed that the tyre and tube were free from any manufacturing defect. The allegation in para 4 of the complaint that the tyre and tube is of a poor quality is false. The averment in para 5 of the complaint that the complainant has suffered loss as the vehicle was kept idle due to the damage of tyre and tube is false and hence denied. The complainant has not suffered financial loss . There is no deficiency in service on the part of this opp.part. The liability of this opp.party as a manufacturer arises only when a tyre under complaint on examination is found to have been damaged due to manufacturing defect. The tyre under complaint at the time of examination was having a skid depth of 9 m.m. against 17 m.m. which means 49% of the tread has been worn out or in other words the complainant has enjoyed 49% of the life of the tyre. It was in these circumstances this opp.party has offered to replace the tyre as a goodwill gesture on payment of Rs.3011/- +tax by the complainant. Since the tyre under the complaint was damaged not due to any manufacturing defect, this opp.party is not liable for any replacements, damages and losses as alleged. The complainant is not entitled to get any relief claimed. Hence the 2nd opp.party prays to dismiss the complaint.<br /> <br /> Points that would arise for consideration are:<br /> <br /> <br /> 1. Whether there is any manufacturing defect in the tyre purchased by the complainant<br /> 2. Whether there is any deficiency in service on the part of the opp.partiy<br /> 3. Reliefs and costs.<br /> <br /> <br /> For the complainant PW.1 is examined. Ext.P1 and P2 are marked.<br /> <br /> <br /> For the opp.party DW.1 is examined. Ext. D1 is marked.<br /> <br /> <br /> <br /> Points:<br /> <br /> As a matter of fact there is no dispute that the complainant purchased tyres from the 1st opp.party as per Ext.P1 and that he returned one of the above tyre to the first opp.party as per Ext. P2 series. The contention of the complaint is that the tyre returned as per Ext.P2 has manufacturing defect and the same got damaged in less than 2 months. It is the further case of the complainant that when he approached the first opp.party, the first opp.party agreed to exchange the defective tyre with a new one. But when he went to the opp.party firm to take the new tyres he was asked to pay additional amount of Rs.3276/- which amounts to deficiency in service.<br /> <br /> The definite contention of the opp.party is that the tyre has no manufacturing defect at all but the same got damaged due to the negligence use of the same by the complainant. It is the further case of the opp.party that the tyre surrendered by the complainant was got examined by the inspection wing of the 2nd opp.party and it was noticed that there is no manufacturing defect but the damage was sustained due to the negligent use of the tyre. It is further contended that the returned tyre was used by the complainant and 49% of the tread has been worn out from which it is obvious that the complainant has enjoyed 49% of the life of the tyre. However, as a good will gesture they offered to replace the tyre on payment of Rs.3,011/- .<br /> <br /> The definite contention of the opp.party is that the complainant failed to prove that the tyre had any manufacturing defect. It is argued by the learned counsel for the complainant that there is no expert evidence to show that the tyre suffers from any manufacturing defect. According to him when the complainant is alleging manufacturing defect the burden is on the complainant to establish that aspect by adducing expert evidence and in support of the contention he has relied on the decision of the Kerala State Commission reported in 2008 [1] CPR 120 wherein it was held that “when complainant alleges manufacturing defect in the goods, same should be proved by taking out a commission who should be competent in the field” . Admittedly the complainant herein failed to take out a commission to establish his contention of manufacturing defect. Therefore it cannot be said that the complainant established that the tyre had any manufacturing defect. In the light of the decision referred to above we are of the view that the complainant is not entitled to get the tyres replaced . Point found accordingly.<br /> <br /> In the result the complaint fails and the same is hereby dismissed. No costs.<br /> <br /> Dated this the 13th day of November, 2008.<br /> <br /> <br /> <br /> <br /> I N D E X<br /> <br /> List of witness for the complainant<br /> PW.1. – Sethu<br /> <br /> List of documents for the complainant<br /> P1. – Bill dated 21.4.2005<br /> P2. – Bill dated 30.5.2005 <br /> <br /> List of witnesses for the opp.party<br /> DW.1. – Kurian Thomas<br /> <br /> List of documents for the opp.party<br /> D1. – Copy of report.<br /> <br /> <br />