DOF.13.09.2010
DOO.27.02.2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR
Present: Sri.K.Gopalan: President
Smt.K.P.Preethakumari: Member
Dated this, the 27th day of February 2012
CC.No.223/2010
Ashraf,
TFC, Kappalam,
P.O.Taliparamba 670 141 Complainant
(Rep. by Adv.P.M.Nandakumar)
1. M/s.Tyre House,
Chiravakku, P.O. Taliparamba 670 141.
2. M/s.Appolo Tyres Ltd.,
A.M.Compelx, Cherooty Road,
Calicut 673 032. Opposite parties
(Rep. by Adv.K.N.Shaji)
O R D E R
Smt.K.P.Preethakumari, Member
This is a complaint fled under section 12 of consumer protection act for an order directing the opposite parties to pay compensation of `29,175 with interest and cost.
The case of the complainant in brief is that on 19.5.10 he had purchased a tyre worth `18,675 from the opposite parties. After use of few days it becomes damaged and flat. It is due to the manufacturing defect and low quality materials. So the complainant has approached 1st opposite party either to replace the defective tyre or to refund of the amount. The 1st opposite party sent the defective tyre to 2nd opposite Party on 14.7.10. There after the complainant has received a reply from 2nd opposite party stating that probable causes for failure to tyre are overload or continued running after puncture, under inflation in one of the dual sudden air loss in tube etc. The reasons stated re not true. So the complainant issued a lawyer notice to opposite parties on 6.8.10. But 2nd opposite party issued a reply enclosing a rejection letter. So the complainant has sustained financial loss and mental agony and all these was caused due to the deficient service of opposite parties. Hence this complaint.
In pursuance to the notice issued by the Forum 2nd opposite party appeared and filed their version.1st opposite party remains absent, even though they have received notice and hence 1st opposite party was called absent and set exparte.
2nd Opposite party filed version contending that the complainant is not a consumer since the vehicle was used for commercial purpose with the help of a paid driver and helper and the complainant is having 15 commercial vehicles. The complaint is not maintainable since the complainant has not produced any expert report to show that the tyre in question was suffering from manufacturing defect. Though the technical service in charge of the 2nd opposite party did not find any defect, the 2nd opposite party is ready and willing to take an expert repot. It is not correct to say that the tyre got damaged after two months duet o manufacturing defect and also denied the allegation that low quality material was used for the alleged tyre. The technical service Engineer of the 2nd opposite party who has adequate knowledge in tyre technology examined the tyre in question and not find any manufacturing defect. The cause of failure was Run flat, which causes due to overload or severe under inflation, continued running after puncture, under inflation in one of the duals, sudden air loss in tube. Customer friendly of the company stands only for manufacturing defects in its products on pro-rato basis. It is not correct to say that complainant suffered mental agony or financial loss on account of 2nd opposite party. There is no deficient service on the part of the 2nd opposite party. So the complaint is liable to be dismissed.
Upon the above contentions the following issues have been raised for consideration.
1. Whether the complainant is a consumer?
2. Whether there is any deficiency on the side of opposite
parties?
3. Whether the complainant is entitled to get any relief as
prayed in the complaint?
4. Relief and cost.
The evidence consists of the oral testimony of PW1,DW1 and Exts.A1 to A5 and Ext.B1 and B2.
Issue No.1
The 2nd opposite party contended that the complainant is not a consumer since he has been using the vehicle for commercial purpose and he owns fifteen vehicles On the other hand the complainant contended that the tyre in question was used for his lorry which has been using for transportation of fruits at his shop and he and his brother are used to drive the vehicle. The 2nd opposite party even though contended that he has more than 10 vehicles, has not produced any documents or takes any steps to call for documents from the concerned authority. Moreover the 2nd opposite party has not denied the contention that the complainant has been running a fruit shop. More over 2nd opposite party has no case that the complainant has other means for his lively hood. In this case the facts and circumstances of the case shows that the complainant has purchased the tyre for the vehicle, which he used to facilitate his business. More over in Gulab Industries Pvt.Ltd. Vs. RNG Suiting Ltd. the National Commission held that Jurisdiction of consumer Forum cannot be ousted even for rendering of service for commercial purpose. So we are of the opinion that the complainant is a consumer within the purview of Consumer protection Act and hence issue No.1 is found in favour of the complainant.
Issue Nos. 2 to 4
The complainant’s further case is that the tyre purchased from the opposite parties became defective due to manufacturing defect within few days itself and even after repeated request opposite parties are not ready to replace the same. In order to prove his case he was examined as PW1 and produced documents like purchase bill dt.19.5.10 issued by 1st opposite party, copy of lawyer notice, postal receipts, postal acknowledgements, rejection letter with covering letter etc. In order to disprove the case 2nd opposite party also produced rejection letter and copy of technical evaluation and disposition report. The documents produced by the complainant shows that he had purchased a tyre worth `18675 on 19.5.10 from 1st opposite party and within two months itself it became defective and the opposite parties rejected the complainant’s claim by saying so many reasons such as over load for severe under inflation, continued running after puncture, under inflation in one of the dual, sudden air loss in tube etc. But they have not stated the exact reason for rejecting the claim. It is true that the complainant has not taken any steps to examine the tyre by an expert and to call for a report. But the 2nd opposite party has taken steps to call for a report and the complainant has produced the tyre before the Forum as per the direction of the Forum upon the petition filed by 2nd opposite party. But after allowing the petition the 2nd opposite party dropped the attempt by not sending the tyre for experts opinion. The complainant pleaded that this was due to fear of 2nd opposite party in detecting manufacturing defect, if an expert was examined the tyre. The tyre is before the Forum and it is seen damaged and flat when it examined through the naked eye. According to 2nd opposite party as per Ext.A5 so many reasons are stated for rejecting the claim. More over they have not examined the person who was examined the tyre and issued Ext.A5. So an inference can be drawn in favour of the complainant that the tyre has some manufacturing defect and Ext.A5 was issued due to deficient service on the part of opposite parties for which they are liable to replace the tyre along with `500 as cost of the proceedings and order passed accordingly.
In the result, the complaint is allowed directing the opposite parties to replace the defective tyre with a new one with `500 (Rupees Five hundred only) as cost of the proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant can execute the order as per the provisions of consumer protection act.
Sd/- Sd/-
President Member
APPENDIX
Exhibits for the complainant
A1.cash bill dt.19.5.10 issued by OP
A2.Copy of the lawyer notice sent to Ops.
A3 & 4. Postal receipts and postal AD
A5.Rejection letter dt.14.8.10issued by OP
Exhibits for the opposite parties:
B1.Copy of the rejection letter sent to complainant
B2.Copy of the technical evaluation & Disposition report dt.15.7.10
Witness examined for the complainant
PW1.Complainant
Witness examined for the opposite parties:
DW1.Ajith Krishnan
/forwarded by order/
Senior Superintendent
Consumer disputes Redressal Forum, Kannur.
