BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 22^nd DAY OF FEBRUARY 2024

ORDER

SMT. SUMA ANILKUMAR, MEMBER

The complaint filed U/S 35 of Consumer Protection Act 2019, complainant seeking direction towards OP for the following reliefs:-

1. Order for the replacement of goods (tyres).
2. Order for the compensation of Rs.50,000/- for the physical and mental agony suffered by the complainant.

2. Brief facts of this case are as follows:-

The OP No.1 is the manufacturer of four wheeler automotive, OP No.2 is the manufacturer of tyres and the OP No.2 is the authorized distributor of Toyota Motors and a Sub3dealer of OP No.1. The complainant has purchased a brand new Toyota Innova Crysta on date 21.06.2022 from OP No.3 who is the Authorized distributor. The new vehicle manufactured by OP No.1 came fitted with the new tyers which is manufactured by OP No.2. The complainant used the new vehicle for around five months and it has put on a mileage of about 10212 km. with a regular services carried out by the Authorized Toyota Garage. However, during the month of October-2022 the complainant has observed a crescent shaped bulge measuring about 2 inches on the outerside of the front end left hand side tyre. The bulge existed between the thread of the tyre and the rim which has arisen due to manufacturing defect.

3. The complainant has raised a claim regarding the defective tyre before the OP No.3. However the OP No.3 has not taken any necessary action at the outset. The complainant had to run pillar and post and after hectic efforts was able to convince the OP No.3 regarding the defect in the factory fitted tyre. The OP No.3 thereafter referred the claim of the complainant to OP No.2 who is the manufacturer of the tyre. The technical expert of the OP No.2 has dismissed the claim of the complainant through his Technical Inspection Report dated 09.11.2022 assigning no proper and valid grounds for his dismissal. The complainant has used the vehicle with great caution and due care and carried out timely service from the authorized Toyota Garage and the vehicle is put on a mileage of about 10,000 km only. In spite of the same the left hand side of the front end tyre has developed a bulge. The OPs with an intention to avoid their liability have dismissed the claim of the complainant without assigning any proper and valid reasons. Hence this complaint by the complainant

4. On issue of notice to OPs, the OP No.2, OP No.2 and OP No.3 have appeared before this commission, filed vakalath and version.

5. Version of OP No.1, OP No.1 submits that OP No.1 being a subsidiary company of Toyota Motor Corporation, which is the global manufacturer and supplier of a wide range of vehicles to consumers all across the spectrum and catering to various needs of its consumer base across the globe. The OP No.1 is an important vehicle manufacturer in the country and has been known for its good quality make and ease of access models in the consumer vehicle range. The OP No.1 has delivered innumerable vehicles to its consumers in impeccable condition and earned various accolades over the years for its quality driven approach that has never failed its consumers.

6. The OP No.2, Bridgesone India Private Limited is an uthorized distributor of tyres to OP No.1. It is relevant to state herein that the OP No.2 is the manufacturer of the tyres. Further, OP No.3, Ravindu Toyota is an authorized dealer of OP No.1. The business of OP No.1 is also in compliance with Indian laws and regulations and that all cars sold in India have obtained vehicle tyre approval certificates and various other certifications and permissions after compliance with various statutory tests including one from the Automotive Research Association of India (ARAI), an authorized testing agency established under Rule 126 of the Central Motor Vehicles Rules 1989, as notified by the Ministry of shipping, Road Transport and Highways. These regulations govern the testing and certification of manufactured cars, as well as their parts and engines.

7. The OP No.3 is an authorized dealer of OP No.1. It is pertinent to mention here that, OP No.3 the authorized dealer is appointed on a ‘Principal to Principal’ (P2P) basis, whereby the dealers are solely responsible for their own actions related to sales, services and other warranty related claims. The complainant purchased a “Toyota Innova Crysta 2.4Z (AT)” (herein after referred as vehicle) on 21.06.2022, from OP No.3. The sale of the said vehicle was an exclusive transaction that occurred between OP No.3 and the complainant, wherein the OP No.1 was nowhere involved in the sale transaction, in any manner whatsoever. The complainant alleged that during October 2022, the complainant has observed a bulge measuring about 2 inches between the thread of the tyre and the rim which was due to a manufacturing defect. It is pertinent to mention herein that the complainant is not a ‘consumer’ as defined under the Consumer Protection Act, 2019. It is apt to highlight herein that the OP No.1 is engaged in the business of manufacturing cars and is not a manufacturer of tyres. Furthermore, the tyre are outsourced from tyre manufacturers OP NO.2 and not manufactured by OP No.1. In addition to this, it is clearly encapsulated in the owner’s warranty manual that the tyres are not covered under warranty and respective tyre manufacturer’s own warranty would apply with respect to the defects in tyre. Pertinently, it is apparent that the complainant has approached this Hon’ble Commission to extract illegal sums by causing financial losses to OP No.1.

 8. OP No.1 is in no way related to the instant complaint and has been unnecessarily dragged as a party to the complaint with malafide intention. The complainant has failed to establish in the complaint any material fact or evidence against OP No.1 with respect to any deficiency of service or material defects in the said vehicle that could have been attributed to OP No.1. The liability of the OP No.1 only arises in the scenario where any manufacturing defect is present in the vehicle, and in the present complaint, the complainant has not claims of manufacturing defect in the said vehicle. The act of institution the present complaint by maliciously including the OP No.1, is a clear act of misjoinder of parties as there is no basis for the same anywhere in the complaint and the complainant has failed to establish any default on the part of the OP No.1. It is on this very ground itself that, the present complaint is liable to be dismissed as against the OP No.1. OP No.1 has referred to cases, Tata Motors Limited.

9. Version of OP No.2, OP No.2 submits that the complaint filed by the complainant is not legal and hence not tenable at law and is therefore liable to be dismissed on this ground alone:

Preliminary Objections

A) Test Analysis Not done –

a) Section 38(2)(c) & 38(2)(d) of Consumer Protection Act 2019, reads as under:

“38 (2) where the complaint related to any goods, the District Commission shall –

(c) If the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods obtain a sample of the goods from the complainant, seal it and authenticate in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Commission within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum;”

(d) before any sample of goods is referred to any appropriate laboratory under clause (c), the District Forum may require to complainant to deposit the credit of the Commission such fees as may be specified, for payment to the appropriate laboratory for carrying out the necessary analysis or test in relation to the goods in question.”

b. Hence as per section 38(2)(c) & (d) of the Consumer Protection Act, the complainant should be directed to prove the defect in the tyre by submitting inspection report of an appropriate laboratory defined under the section (2) of the Consumer Protection Act, 2019 which is authorized to conduct such tests for ascertaining the real cause of damage in the tyre involved in the question. For proper adjudication of the complaint, the Hon’ble Forum should direct the complainant to inspect the tyre/s through some Government approved laboratory at his own cost and risk.

c. The written version has been submitted by the OP No.2 in the Hon’ble Forum, subject to the complainant submitting the Claim Inspection Report after test analysis from Government Agency.

10. On intimation by the OP No.3 regarding the grievance of the complainant, OP No.2 inspected the said tyre through its engineer on 09.11.2022. After inspecting the tyre, it was reported vide Claim Inspection Report dated 09.11.2022 that damage in the tyre was on account of Impact Bulging. This happens when the tyres side wall get pinched between rim flange and external blunt object, the sidewall plies get damaged which leads to bulging of the tyre. This kind of damage to the type is not a manufacturing defect and such kind of damage being outside the purview of Bridgestone Warranty Policy (refer clause 17 of the Bridgstone Warranty Policy), the claim of the complainant for replacement of tyre was rejected. Tyre is the only part of the vehicle which touches the road surface directly and hence it is open to risk of impacts by any sharp external object on the road like sharp stones, pothole edges and such other objects. In the tyre the function of sidewall is to provide ride and handling performance and the tyre sidewall has to be flexible in order to deliver ride and handling performance. When tyre runs at high speed on upaved road the sharp objects like nail, sharp stones and such external objects with proper cutting angle may cause sidewall damage irrespective of its mileage covered. The failure of the tyre does not come immediately after a sidewall cut on the tyre occurs. Small initial cuts can grow into larger cuts resulting in a failure on a good road. Such damages are not manufacturing defects. That is why each tyre should be checked on regular basis. This kind of damage can happen with any brand of tyre which is not an inherent manufacturing defect. This kind of damage can be escaped, if the driver of the vehicle avoids road hazards while driving the vehicle or slows down the vehicle while driving over any such road hazards.

11. Indian Tyre Technical Advisory Committee (ITAC) is a specialized resource of Automotive Tyre Manufacturers Association (ATMA) formed in 1996 brings out a standards manual which is one of the most trusted reference documents on standards for Tyre, Rim and Valve. ITTAC also published Tyre Condition Guides for different category of tyres as a comprehensive compilation of different types of tyre damages, their appearances and recommendations which reflect the consensus of the member of ITTAC. There was no manufacturing fault in the said tyre and the tyre was free from defect which culd arise due to faulty manufacturing. It is further submitted that warranty of any consumer goods covers only manufacturing defect and not the damages which are caused by negligence or misuse of the product. Hence, the warranty of OP No.2 on any tyre stands against manufacturing defects only ad not against any damage from other reasons like improper use, road hazards, impact from external object, cut, improper inflation pressure, running flat, etc.

12. The inspection of the tyres is done by technically qualified & trained staff of the OP No.2, who have rigorous trainings at the plant of the OP No.2 During the training the staff is made to know the tyre and tube manufacturing process, damage happening mechanism to tyre and tube, poor maintenance, analysis, inspection of the damaged/defective tyre and tube and their proper care and maintenance methods. If the complainant alleges that the tyre was having manufacturing defect then the burden of proving the defect in the tyre lies on the complainant. The National Commission has taken a consistent view that any technical defect has to be proved by testimony of expert in the field and it is also well settled law that no order of replacement of any product or refund of price can be made except in the case where manufacturing defect has been established.

13. National Commission in TATA Engineering V/s Sunil Bhasin 2008 (2) CPJ 111 (NC), that – “No case can be adjudicated on the bit of pleadings only”. The judgement dated 16.12.2010 of Hon’ble National Consumer Disputes Redressal Commision, New Delhi given in the Revision petition No.3845/2006 Suresh Chand Jain vs. Service Engineer and Sales Supervisor, MRF Ltd. Anr. clearly states that onus to prove the manufacturing defect in the tyres is on the complainant for which expert evidence is required which the complainant failed to prove in the present case and is making attempts just to deceive this Hon’ble Commission by making misleading statements. Without prejudice to the above contention the OP No.2 states that the contents of the plaint are not true and correct and hence denied. Therefore complaint to be dismissed with cost.

14. Version of OP No.3, OP No.3 submits that OP No.3 is the dealer and service provider for the Toyota vehicles manufactured by the Toyota company is true and correct. That the complainant had purchased a brand new Toyota Innova Crysta on 21.06.2022 from OP No.3 which is fitted with new tyres which is manufactured by the OP No.2 is also true and correct. During the month of October 2022 the complainant observed a crescent shaped bulge measuring about 2 inches on the outside of the front end left hand side tyre is totally false and incorrect. The bulge existed between the thread of the tyre and the rim which has arisen due to manufacturing defect is totally false and incorrect and the complainant is directed to prove the same. When the alleged problem was brought to the notice of this OP, OP has referred the claim of the complainant to the OP No.2 who is the manufacturer of the tyre. OP No.3 submits that on referring the claim to the OP No.2, the technical expert of the OP No.2 has dismissed the claim of the complainant through his Technical Inspection Report dated 09.11.2022 and the OP No.2 opnioned that the damage in the said tyre is not a result of any design, workmanship or manufacturing defect, but due to impact bulging thus placing it outside the scope of warranty.

15. Averment that the complainant has carried out timely service from the authorized Toyota Garage is totally false and incorrect and that the left hand side of the front end tyre has developed a bulge which has arisen only due to the manufacturing defect is totally false and incorrect. The further averment that the OPs with an intention to avoid their liability have dismissed the claim of the complainant without assigning any proper and valid reasons is totally false and incorrect. Defect in the tyre came to be happened in the tyre solely due to the bad manner of usage/driving of the car and not with any other reasons. The tyres can undergo a lot of damage on account of running the vehicle in bad conditioned road. The tyres can develop egg-shaped protrusions or lumps, these deformities are called bulges. In order to come to the clear conclusion it is very essential to know, how tyre bulges are formed. Tyre is made up of ply and rubber. The ply provides the strength, and the rubber is glued to the ply. In case of a drastic impact, the sturdy sidewall becomes weak as the structural integrity suffers injury. This separates the rubber from the piles, which allow the air to escape and then this air forms a bulge.

16. The tyre bubbles are likely to occur due to the following reasons:

a) If the tyre had a hard impact, the intensity of which breaks the inner lining, this results in swollen tyre sections.

b) Sudden braking or acceleration has put extra pressure on a particular section of the tyre.

c) The tyres of overloaded vehicles suffer extra pressure which leads to the internal burnout.

d) Inadequate tyre pressure levels make tyres prone to bulges.

e) Living in frigid climates experience tyre bulges after the tyre rubber tends to lose flexibility due to the cold.

There is no cause of action for the above complaint. The cause of action mentioned in the complaint is totally false and incorrect and the cause of action mentioned in the complaint is only a speculative one as such the above complaint is required to be dismissed by this Hon’ble Commission.

17. The OP No.3 further submits that as and when the vehicle was brought for service, the same was done by the OP No.3 to the utmost satisfaction of the complainant and it is needless to mention here that as and when the services of this OP was sought for, this OP had tendered its best services to the complainant. The OP No.3 is in the automobile field for the last over 2 decade and it had huge number of satisfied customers. When such being the case, the complainant who used the car in abnormal manner may be the route cause for the alleged problem, by making false and baseless allegations had filed the above false and frivolous complaint. Hence required to be dismissed by this Hon’ble Commission.

18. The complainant has filed affidavit evidence with 4 documents. OP No.1 files affidavit evidence along with 4 documents marked as Ex.R.8 to Ex.R.11 and hence taken as nil, OP No.2 file affidavit evidence along with 6 documents marked as OP No.2 Ex.R.1 to Ex.R.6. OP No.3 files A/E with 1 document marked as Ex.R.7. Complainant filed written arguments. Heard OP No.2 and complainant.

19. On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant proves the deficiency of service on the part of OPs?

ii) Whether complainant is entitled for the relief?

3. What order?

20.  Our answers to the above points are as follows:-

Point No.1:- Affirmative.

Point No.2:- Partly Affirmative.

Point No.3:- As per the final order.

                      REASONS

21. Point No.1&2:- These points are inter-connected to each other and for the sake of convenience, to avoid repetition of facts, these points are taken up together for common discussion.

22. On perusal of the documents submitted by the complainant, in the Ex.P.1 which is tax invoice issued by Ravindu Motors Private Limited in the name of Sadananda P.N., clearly shows that the complainant has purchased Innova Crista 2.5 Z(AT) at the cost price of Rs.25,61,513.53/- from OP No.3. Ex.P.2 is registered document of the said vehicle. Looking into the Ex.P.3 which is the photos of the tyre submitted by the complainant, it is clearly seen that there is bulge in the tyre. The Ex.P.4 is the technical inspection report submitted by Bridge Stone Solutions for your journey i.e. OP No.2, which says that the left tyre side wall bulge formation is

“According to Bridgestone India Technical Expert, the damage in the said tyre is not result of any design workmanship or manufacturing defect, but due to impact bulging thus placing it outside the scope of warranty”.

 The Technical report is also submitted by OP No.2 marked as Ex.R.1. Op No.2 in their contention have submitted that the warranty policy marked as Ex.R.2, which says:-

3. This warranty is only applicable in India.

4. Tyres and tubes shall be covered under warranty for manufacturing defects only for a period of 5 years from the date of manufacturing, or 3 years from the date of purchase or till the exposure of tread wear indicators, whichever is earlier, irrespective of kilometer covered.

5. At the end of the relevant period stated above, all warranties, express or implied are terminated.

In the above warranty policy, the tyres and tubes shall be covered under the warranty for manufacturing defects only for a period of 5 years from the date of manufacturing or 3 years from the date of purchase irrespective of kilometer covered. Here we can see that the OP No.2 are liable for the tyre replacement as the warranty period is for 5 years from the date of manufacturing, as the said defect is seen within 5 months from the date of manufacturing.

23. As per the section 84 of Consumer Protection Act 2019, liability of the product manufacturer – (1) A product manufacturer shall be liable in a product liability action if-

a) the product contains a manufacturing defect; or

b) the product is defective in design; or

c) there is a deviation from manufacturing specifications; or

d) the product does not conform to the express warranty; or

e) the product fails to contain adequate instructions of correct usage to prevent any harm or any warning regarding improper or incorrect usage.

The OPs are liable for the replacement of the tyre as per the section 84 of Consumer Protection Act 2019.

24. On looking into the complaint, we see that the complainant purchased the car from OP No.3 who is the authorized dealer of the car manufactured by OP NO.1. The tyres fitted in the car are purchased by OP No.1 from OP No.2, wherein OP NO.1 and OP No.2 are in contract for the tyres to be supplied to OP No.1 for their products.

25. The complainant has purchased the car from OP No.3 which holds the warranty period of minimum 1 year and the said car is manufactured by OP No.1. The warranty holds for the whole car including all the parts of the car. There is no direct contract between the complainant and OP NO.2 and the complainant has not purchased the tyre from OP No.2, therefore OP No.1 and 3 are directly liable for the damage of the car as there is manufacturing defect in the tyres of the car within 5 months from the date of purchase of the car. OP No.1 and OP No.3 being the manufacturer and dealer of the car, are responsible for any defect in any part occurred in the car and OP No.2 is liable for the defect of the tyre toward OP No.1.

26. In the Ex.R.10 submitted by OP No.1:-

 Tyres are warranted under a separate warranty provided by the tyre manufacturer - in case the service network of respective manufacturer is not available in India, Toyota shall handle the warranty on behalf of their manufacturer as per manufacturer terms and conditions.

On the above exception for the tyre manufactured says that Toyota shall take responsibility of the warranty on behalf of their manufacturer as per manufacturer terms and conditions, in case the manufacturer is not available in need. This shows that the OP No.1, on any defect in tyre takes the responsibility of the warranty of the tyre towards its consumers. Hence is liable to replace the tyre for the complainant.

27. Looking into all the above reasons we see that OPs have shown deficiency in service by not responding to the complainant and made the complainant run around for the defect caused in the new vehicle purchased by the complainant and the OPs have also shown Unfair Trade Practice. Hence the OPs jointly and severally are liable to replace the tyre of the car and pay compensation of Rs.10,000/- and Rs.5,000/- towards litigation charges.

28. Point No.3:- In view of the discussion referred above, we proceed to pass the following:-

                                   ORDER

1. Complaint filed by the complainant U/S 35 of Consumer Protection Act, is hereby allowed in part.
2. OPs are jointly and severally liable to replace the tyre of the car with new tyre within 30 days from the date of order.
3. OPs are further directed to pay Rs.10,000/- towards compensation and Rs.5,000/- towards litigation charges.
4. OPs are directed to pay the total Award amount within 30 days from the date of order failing which, shall pay interest at the rate of 10% p.a. on the Award amount from the date of order till realization.

5.  Furnish the copies of the order and return the extra copies of pleadings and documents to the parties, with no cost.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 22^ndday of JANUARY, 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

Documents produced by the representative of opposite party – R.W.2;

Documents produced by the representative of opposite party – R.W.3;