THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHADRAK.
Present- Sri Raghunath KarPresident, Sri Basanta Kumar Mallick ,Member
Afsara Begum, Member
Dated the 28th day of October, 2017
C.D case No. 101 of 2015
Minati Senapati
W/o Late Jitendriya Senapati
At-bania, P.O- Saragadia
Via- Charampa, P.s-Bhadrak ®
District- Bhadrak ………...Petition/Complainant
VERSUS
Proprietor
M/S Panda Tyers
At- Tahasil road, N.H.5 (Now N.H.16)
P.o/P.s/dist- Bhadrak
02. The office Manager
M.R.F. Ltd, Plot No-502/165,
Jeypore, on N.H.5 (Now N.H.16)
P.s- Balianta
Dist- Khurda ……….Opposite Parties
Advocate for complainant- Sri R.K Nayak & Associates
Advocate for Op No-1 - Sri Giridhari Natha & others
Advocate for OP No-2- Sri Abani Kumar Bal
Date of hearing - - 28.08.2017
Date of order - - 28.10.2017
SRI BASANTA KUMAR MALLICK, MEMBER
This dispute arises out of a complaint filed by the complainant alleging deficiency of service and unfair trade practice.
The facts described in the complaint are to the effect that the complainant is a widow earning her livelihood from the income of transport operation business and a regular customer of M/s Panda Tyres ( OP NO-1) who trades in tyers of MRF Brand as the authorized dealer of MRF Tyers Ltd. Being allured by the convincing words of the owner of M/s Panda Tyers and advertisement in printing media & electronics Media, complainant evinced interest to purchase a MRF tyre and also placed order for such tyre. Subsequently after a few days the OP supplied a bus tyre of MRF Brand on receipt of the cost of tyre of Rs 16300/-on dt.24.03.2015. Before purchase of the tyre, OP NO-1 assured one year warranty and verbally guaranteed replacement of tyre if damaged within 1 year from the date of use. But the said tyre got damaged within a period of four months due to manufacturing or any other material defects while the bus was playing on the road endangering the lives of more than 50 passengers boarded in the said bus on 14.07.2015. Immediately after such incident, complainant intimated the proprietor of M/s Panda tyres verbally and face to face who assured to resolve the matter very shortly and after being convinced about the condition of tyre suffers from various defects, and assured to replace the damaged tyre with new one. But despite repeated request and persuasions, OP No-1 went on consoling that the matter has been refered to the manufacturer (OP NO-2) to conduct an inspection of the tyre in question and unless the said inspection is conducted, no relief could be considered by OP NO-1. Finally on 20.07.2015, the inspection of tyre was conducted by the authorized technician deputed by OP NO-2 and submitted a report which was issued on 21.07.2015 mentioning as “the tube is free from any manufacturing defeat & rejected” when the claim was rejected, complainant, being aggrieved, personally met OP NO-1, time and again, who has assured to compensate the loss if any within one year, but did not replace the old damaged one with a new tyre and bluntly refused to settle complainant’s claim as per his assurance. In this situation, complainant, finding no other way, preferred this dispute seeking relief to get a new tyre along with cost and compensation.
Although OP No-1 engaged an advocate who executed power on dt26.09.2015 but did not submit written version till 26.08.2016 as a result OP NO-1 was set ex-parte.
OP No-2 resisted the claim and contested the case. In the written version submitted by the OP No-2, it is stated that as the inspection report of the tyre in question inspected by the authorized technician of the manufacturer discloses the said tyre was free from all manufacturing defects and the damage has been caused for the reason of it’s usage and ran under low inflation or no inflation . It is further explained that the damage caused to the tyre is true but may be damaged due to negligent driving or otherwise but cannot be certainly said to be defects in material or manufacturing defect. It is also raised by OP No-2 that the alleged manufacturing defect in the tyres could have been tested in a laboratory as per the provisions of section 13(1) © of CP Act and without any such report the complainant cannot claim the damage was caused to the tyre due to manufacturing defects. The said OP has also submitted that as it is not involved in any negligence, OP No-2 is not liable to pay any compensation. Hence the case is liable to be dismissed with cost.
Admittedly the complainant has purchased the tyres from OP NO-1 on payment of cost and the said tyre bears the warranty of 3 years and the damage, if any, caused to the tyre shall be compensated within the ambit of the terms of warranty. After going through the complaint and written version of OPs and hearing the pleadings of the parties to this case it is observed that the following issued are to be discussed to reach at the conclusion.
Whether there was warranty for a period of three years and the said tyre was damaged within the warranty period.
Whether the claim was to be settled under the terms of warranty and whether the rejection of claim, amounts to any deficiency of service.
How far it is true to say that both the OPs are willful negligent in providing service to the complainant.
Whether the complainant deserves to any relief against the damaged tyre.
OBSERVATION
The complainant alleged that the tyre in discussion was purchased on dt.24.03.2015 for her bus having route permit from Balasore to Bhubaneswar & back .There is no probability to ply the bus on rough roads only other than to run on national High way. The tyre so purchased covers warranty for a period of one year as verbally told by OP No-1 at the time of purchase and the said tyre was fitted in the rear axle of the bus on the next day of purchase. Regularly the bus was plying from Balasore to Bhubaneswar and the regular check up of pressure in the tyre is done at least once in a day. Hence the there is no chance for the bus was running under low inflation or no inflation. Since the tyre has been damaged while the bus was in a running condition, it can be firmly said that the tyre was defective. On the other hand the OP NO-2 admitted that there is warranty for a period of 3years but not applicable in the present case as demanded by the complainant.
Heard the parties and perused materials on record. It is observed from the warranty policy issued by OP NO-1without seal and signature that the tyre covers the warranty for a period of 3years which has already been admitted by one of the OPs .
Complainant, at the time of hearing pleaded that since the tyre has been damaged within a period of four months from the date of purchase and the tyre was punctured while the bus was running on the N.H.5 ( Now N.H.16) certainly due to defects in the tyre. On the contrary OP No-2 resisted the complainant in stating that on receipt of claim information from OP No-1, one technical service person was deputed to inspect the tyre and reported that the damage was caused due to negligent driving and the tyre run under low inflation or no inflation . Hence this may not contribute to manufacturing defect and claim was rejected. Complainant further argued drawing the attention of the Forum to Paragraph-4 of written version wherein the pleadings of OP No-2 as “may be damaged due to negligent driving or otherwise……”. This makes the intention of the OP NO-2 clear that the tyre itself was defective and the OP is trying it’s best to avoid settlement of claim on various plea which are not tenable and sustainable.
Perused the materials on record and heard the counsels of OP and complainant. The statement made by the technical service person using the word “may be” does not attribute to any conformity. It can be the fact that the points raised by the technical service person may not be correct. Unless any concrete reason confirming the damage was caused due to negligent driving is shown by the OPs, it is held that there was defect in the tyre since the date of purchase and therefore it was damaged within four months of it’s use as it was fitted on the rear axle of the bus. The ground shown by OPs to reject the claim is fabricated to repudiate the claim which amounts to negligence of service and for the vested interest of OPs.
Complainant in course of hearing alleged that despite all genuine explanations and repeated persuasions, OPs did not pay any heed to his grievance rather rejected the claim showing fake reasons under the instruction of OP NO-2. It cannot be disputed that the technical service person is the paid employee of OP No-2 has acted according to the instruction of the authority. It cannot be over ruled that the said technical person has not acted according to the instruction of his authority to prepare the report in a manner which would help OP NO-2 to reject the claim. The report so prepared is based on probability for which “may be” has been used and relying on probability claim so raised by the complainant cannot be rejected. On the other hand counsel for OPs contented with the statement not to state more than the pleadings made in the written version.
Perused the documents on record and heard both the parties. The ground of rejection of claim is based on presumption and probability and OP NO-2 failed to prove its point of rejection. Therefore it is held that the complainant is entitled to the privileges under benefit of doubt. Hence the OPs are liable to augment the loss sustained by complainant.
As it is a matter of loss caused due to defect of tyre and the OPs failed to prove the objections with concrete evidence that the damage has been caused either due to negligent driving or the bus was running in low inflation or no inflation, complainant deserves to get 100%loss with cost. Hence it is ordered:-
ORDER
The complaint be and the same is allowed against the OPs on contest. OP No-1 is directed to make over a new tyre of the same size and brand to the complainant along with Rs2000/- as cost of litigation. Further OP no-2 is directed to reimburse the cost of tyre and cost amount to OP No-1. This order must be complied by both of the OPs within 30days from the date of receipt of this order failing which compensation @Rs100/- per day shall be charged for payment to complainant.
This order is pronounced in the open Forum on this 28th day of October 2017 under my hand and seal of the Forum.
(Raghunath Kar) (Afsara Begum) (Basanta Kumar Mallick)
PESIDENT MEMBER MEMBER
Dictated & corrected by
SRI BASANTA KUMAR MALLICK, MEMBER
