KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.433/05 JUDGMENTDATED.21.08.08 PRESENT:- SRI.M.V.VISWANANTHAN : JUDICIAL MEMBER SRI.S.CHANDRA MOHAN NAIR : MEMBER 1.M/s.CEAT Ltd., Registered Office, 436, Dr.AnnaI Besant Road, Mumbai – 400 025. 2. The Regional Manager, : APPELLANTS M/s.CEAT Ltd., Safeena Mansion, Main Road, Ernakulam. (By Adv.A.Abdul Kharim) Vs 1.V.Sarathchandran, S/o.Valayudhan, Contractor, residing at Mashaba, Pallithottam P.O., Kollam 2. M/s.Cheppally Traders, : RESPONDENTS T.V.M Road, Kottiyam, Kollam JUDGMENT SRI.M.V.VISWANANTHAN : JUDICIAL MEMBER The above appeal is preferred from the order dated.6.4.05 of the CDRF, Kollam in OP.No.70/04. The complaint in the aforesaid original petition was filed by the first respondent as complainant against the appellants and the second respondent as opposite parties claiming refund of Rs.14,000/- representing the price of the two tyres purchased by the complainant from the opposite parties with compensation of Rs.5000/-. The opposite parties denied and disputed the alleged defects in the tyres. But, the Forum below accepted the case of the complainant to certain extent and passed the impugned order directing the opposite parties to pay a sum of Rs.5000/- to the complainant as compensation with cost of Rs.1000/-. Aggrieved by the said order the present appeal is filed by the opposite parties 1 and 2 therein. 2. We heard the counsel for the appellants and 1st respondent. The learned counsel for the appellants submitted his arguments based on the grounds urged in the memorandum of the present appeal. He canvassed for the position that there was no findings regarding the manufacturing defect in the tyres and so the Forum below cannot be justified in awarding compensation of Rs.5000/- On the other hand, the learned counsel for the first respondent/complainant supported the findings and conclusions of the Forum below, and requested for dismissal of the present appeal. 3.The points that arise for consideration are: 1. Whether there was any sort of deficiency in service on the part of the opposite parties as alleged by the complainant? 2. Is there any sustainable ground to interfere with the impugned order passed by the forum below in OP.No.70/04? 4. Points 1 and 2: For the sake of convenience the parties to this appeal will be referred to according to their status before the forum below in OP.No.70/04. 5. There is no dispute that the complainant purchased two tyres for his vehicle at the cost of Rs.14,000/- and that the purchase was effected on 6.12.02. Admittedly the complainant approached the opposite parties in June 2003 making complaint of defects in the said two tyres. But, after testing the tyres, the opposite parties convinced the complainant that there was no such defects in the tyres. But, again the complainant approached the opposite parties in December 2003 alleging complaint regarding defects in the tyres. The opposite parties admitted some defects in one of the two tyres and they rightly agreed to give some concession for the said defects noticed in one of the two tyres. Thereby, the opposite parties agreed to replace the defective tyre with a new tyre on payment of Rs.4204/- + tax thereon. But, the complainant was not amenable for the said offer made by the opposite parties. Hence the complaint was preferred before the Forum below. 6. Thus, the materials on record would make it clear that there was defect in one of the two tyres. The opposite parties themselves admitted the defects in one of the two tyres. It is to be noted that the said defects in the said tyre developed during the warranty period. So, it would given an indication that there was some manufacturing defects in the said tyre. It is also to be noted that the opposite parties, the manufacturer of the tyre agreed for replacement of the defective tyre with a new tyre on payment of Rs.4204/-. Thereby, the opposite parties agreed to give the concession of Rs.2796/-. The discretion is of the complainant to opt for purchasing the tyre of very same manufacturing company or to get the amount refunded. The opposite parties cannot be justified in insisting the complainant to purchase their tyre by making payment of Rs.4204/-. The aforesaid action on the part of the opposite partied would tant amount to deficiency in service. If that be so, the opposite parties are to be made liable to compensate the complaint. 7. The next aspect for consideration is regarding the quantum of compensation due to the complainant. It is come out in evidence that the complainant used the aforesaid defective tyre for a period of one year. There is difference of opinion regarding the distance covered by the said tyre. According to the opposite parties the complainant used the said tyre to ply his vehicle for a distance of 60,000 kms. The aforesaid case of the opposite parties cannot be believed or accepted without any supporting materials. It is well known fact that no tyres would covered the distance of 60,000 kms. The opposite parties has not given any statement to that effect. On the other hand, the case of the complainant is that he used the said tyre only for covering the distance of 6000 KMs. But there is no supporting evidence. It is to be noted that the complainant was examined as PW1 and a witness was examined as DW1 on the side of the opposite parties. Thus, there is oath against oath. It can be concluded that the complainant used the tyre for a period of one year. The evidence of the complainant as PW1 would also give such indication. 8. The Forum below has ordered a compensation of Rs.5000/- considering the fact that the opposite parties themselves assessed the loss at Rs.2796/-, it can be concluded that the complainant suffered a loss of Rs.3000/-. It is be noted that the complainant had to approach the Forum below to get the order in his favour. The action of the opposite parties in repudiating the claim of the complainant should have caused inconvenience and hardship to the complainant. Considering all these aspects, a sum of Rs.1000/- also to be awarded as compensation for the inconvenience and mental agony caused to the complainant. We are of the strong view that a sum of Rs.4000/- can be awarded as compensation to the complainant. The Forum below has also ordered a sum of Rs.1000/- towards costs. It is argued by the learned counsel for the appellants that there was no prayer for getting cost. The fact that the complainant was dragged to the Forum below and in appeal to this Commission would make him entitled to get cost. We are of the view that a sum of Rs.1000/- awarded as cost by the Forum below is on the higher side. The ends of would meet by awarding a cost of Rs.500/- The impugned order passed by the Forum below is modified accordingly. In the result the appeal is allowed partly. The impugned order passed by the Forum below is modified. The opposite parties (appellants and as second respondent) are directed to pay compensation of Rs.4000/- with cost of Rs.500/- to the complainant (first respondent). The opposite parties are made jointly and severally liable for the said amount and the same is to be paid within one month from the date of receipt of copy of the judgment in this appeal. M.V.VISWANANTHAN : JUDICIAL MEMBER S.CHANDRA MOHAN NAIR : MEMBER R.AV
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