IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Monday the 04th day of April 2022.
Filed on 17. 7. 2020
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. P R Sholy, B.A., LLB (Member) In
CC/No.162/2020
between
Complainant:- Opposite parties:-
1. Sri.Shaheer, 1. The Proprietor,
S/o. pareeth, K M H Traders,
Puthesnchira House, K M H Building
Ambanakulangara, Kakkazham, Alappuzha (Exparte)
Mannancherry, 2. The General Manager,
Alappuzha Michelin India Tyres Pvt. Ltd.,
(Adv.Sunitha G) No.136, Arcot Rd, R V Nagar,
Mettupalayam, Saligramam,
Chennai, Tamil Nadu.
(Rep.2nd OP by Adv.Syamnath J G)
O R D E R
SMT.P.R SHOLY (MEMBER)
This is a consumer complaint filed under Sec.12 of Consumer Protection Act,1986.
Material averments briefly discussed are as follows:-
1. The complainant is having a Tipper lorry bearing Reg. No. KL 04 W 7948 and the complainant and his family are living on the income from the said lorry. Complainant purchased a Michelin Tyre, Tube and flap from 1st opposite party on 28.12.2019. 2nd opposite party is its manufacturer. Price of the tyre, 10.00-R20 XZY3 DTT 16 PR VMMI is Rs.22,121.48/-, Rs.1662.89/- for the tube and Rs.604.69/- for the flap. The bill was issued by the 1st opposite party to the complainant for the said payment.
2. After relaxation of lockdown, on 02.05.2020, at about 3 PM, the said tipper lorry while plying towards Alappuzha from Ernakulam, when the vehicle reached at Aroor, suddenly the tyre of the vehicle was burst with loud sound and on inspection it was seen that the Michelin tyre was burst.
3. Since the 1st opposite party made believe the complainant that the Michelin tyre is warranted against defect in material for a period of 5 years from the date of purchase, the complainant contacted the 1st opposite party and demanded to replace the defected tyre, but the 1st opposite party did not responded. Later the complainant contacted the 2nd opposite party for redressing his grievances, but it was all in vain. Thus despite after investing an amount of Rs.23,784.37/- for purchasing the said tyre and tube, it is proved to be useless for the complainant that his very purpose of purchasing the said tyre and tube is thwarted due to the manufacturing defects, gross negligence and deficiency of service on the part of the opposite parties. The acts of the opposite parties caused intolerable mental agony and other hardships to the complainant and thus they are liable to compensate the complainant and filed this complaint for the intervention of this Commission for the same and for other reliefs directing the opposite parties to replace the said Michelin tyre, tube with a brand new tyre and tube or to refund its price of Rs.23,784.37/- together with interest to the complainant.
4. 1st opposite party remained exparte.
2nd opposite party filed version mainly contenting as follows:-
5. There is no unfair trade practice or deficiency of service as alleged by the complainant from the part of 2nd opposite party and complainant is not entitled to get any relief as prayed for in the complaint. The transactions between the complainant and 1st opposite party are not known to the 2nd opposite party. The complainant had willfully suppressed the usage of the vehicle to mislead this Commission. If the complainant is using the vehicle for commercial purposes, he is not a consumer within the provision of S.2 (d) of Consumer Protection Act 1986 which categorically states that the definition of consumer “does not include a person who obtains such goods for resale or for any commercial purpose”. Hence this complaint is not maintainable.
6. On receiving the complaint from the complainant regarding the defect in tyre, a team of technical experts inspected on behalf of 2nd opposite party and prepared a Tyre Inspection Report on 24.08.2020, it was found that “the damage on the tyre sidewall is due to tyre ran in over loading condition or improper tyre inflation pressure caused tyre sidewall to over flex which led to dislocation of tyre casing plies and resulted tyre sidewall rupture. There is no evidence of tyre manufacturing defect”. The damage to the side wall of the tyre is caused by aggressive road surfaces, aggressive driving, improper inflation pressure and overloading and is therefore road hazard damage and it was not a result of design, workmanship or materials defect and is purely related to the usage condition of the tyres.
7. All Michelin Passenger Car and Light Truck Tyres (PCLT) come with a standard limited warranty. Michelin warranty does not cover any damage caused by road hazard injury such as cuts, snag, bruise, impact damage, puncture, repair failures and other tyre usage related damages such as misapplication, improper maintenance, racing, under-inflation, over-inflation or other abuse of tyres. Vehicles, which are carrying loads or running at speeds higher than the load and speed index marked on the tyre side walls or that recommended for the vehicle are not covered by the warranty. The damage to the sidewall area was not due to any manufacturing defect. The filing of this complaint is on an experimental basis and does not having any strong footing of any technical reports or such other valid documents regarding the alleged manufacturing defects of the tyre. The 2nd opposite party has been doing business in the field meritoriously and has followed standard and accepted procedure with due care and caution and there was no negligence or deficiency in service on their part. Hence the complaint may be dismissed with exemplary cost.
8. On the above pleadings the following points were raised for consideration:-
- Whether there is any deficiency in service on the part of opposite parties?
- Whether the complainant is entitled to get the reliefs sought for in the complaint?
- Reliefs and cost?
9. Evidence in this case consists oral evidence of PW1 and Ext.A1 to A3. No oral as well as documentary evidence on the side of opposite party No.2. Opposite party No.1 remained exparte. Heard the complainant’s counsel.
Point No.1 and 2
10. PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and got marked Ext.A1 to A3.
11. Admittedly the PW1 had purchased a Michelin 10.00-R20XZY3 DTT 16PR VMMI TYRE, Tube and flap from 1st opposite party on 28.12.2019. He alleged that there occurred a damage on the said tyre while the vehicle was running on 02.05.2020, ie, within a short span of time from its purchase. The complainant also contented that the 1st opposite party made him believe that the said product is warranted against defect in material for a period of 5 years from the date of purchase. According to the complainant the defect occurred to the tyre in question within the period of warranty. The document produced along with the version by the 2nd opposite party also reveals the same. The matter being so, the 2nd opposite party contented that they are not liable to replace the said tyre as claimed by the complainant since the damage resulted due to tyre inflation pressure caused tyre sidewall to over flex which led dislocation of tyre casing plies and resulted tyre sidewall rupture as reported by the team of technical experts deputed by 2nd opposite party on 24.08.2020. In the report the above said technical experts also categorically denied the manufacturing defect of the disputed tyre.
12. In the said circumstance it is to be pertinent to note that though the 2nd opposite party filed a detailed version denying all the allegation of the complaint they were not made any attempt to disprove the evidence of the PW1 when he mounted in box by filing chief affidavit on oath. 2nd opposite party also did not enter in witness box to face cross examination by the complainant. Besides that it is also to be noted that there is no substantive evidence on record except the report of their own expert team. In the above circumstance as held by the Hon’ble Supreme Court in 1999 SAR (Civil) 431 (Iswar Bhai C Patel @ Bachu Bhai Patel V.Harihar Behera and Another, Non-entering into witness box and abstaining of a party from presenting himself for cross examination – Entitles the Court to draw adverse presumption against such party on the basis of principles contained in Illustration (g) of S.114.
13. More over that as per the warranty details of the tyre in question, if there is a defect in workmanship and materials during the life of the original usable tread or six years from date of purchase (whichever comes first) four tyre may be replaced on a pro rata basis under this warranty. Accordingly we are of the opinion that the complainant is entitled to replace the disputed tyre with new one. Considering the facts and circumstance we allow compensation for mental agony which of course, caused in the event of occurring complaint to the tyre on road while the vehicle was running and it limits for Rs.5,000/-
14. Point No.3
In the result complaint stands allowed in part.
- Opposite parties 1 and 2 are directed to replace the disputed tyre of the complainant (Michelin tyre) with a brand new one or to refund its purchase price of Rs.23,784/- to the complainant.
- Opposite parties 1 and 2 are directed to pay jointly and severally Rs.5,000/- as compensation for mental agony.
- Complainant is entitled to recover Rs.2,000/- as litigation cost from opposite parties 1 and 2 jointly and severally.
The order shall be complied within one month from the date of receipt of the copy of this order.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 04th day of April, 2022.
Sd/-Smt. P.R.Sholy (Member)
Sd/-Sri.S.Santhosh Kumar (President)
Appendix:-
Evidence of the complainant:-
PW1 - Sri. Shaheer (Complainant)
Ext.A1 - Tax Invoice
Ext.A2 - Copy of R C Book
Ext.A3 - Copy of Motor Driving Licence
Evidence of the opposite parties:- NIL
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:-Br/-
Compared by:-
