At, Maharshtra State Consumer Disputes Redressal Commission Nagpur
By, THE HONOURABLE MR. B.A. SHAIKH
By, PRESIDING MEMBER & THE HONOURABLE MRS. JAYSHREE YENGAL
B.A. Shaikh, Presiding Member.
1. This appeal is filed by the original opposite party No. 3 ( for short OP) No. 3 feeling aggrieved by an order dated 30/04/2013 passed by the Addl. District Consumer Forum, Nagpur by which the consumer complaint bearing No. 13/57, filed by the respondent No. 1 herein has been partly allowed.
2. The case of the respondent No. 1/original complainant as set out by him in the consumer complaint in brief are as under.
a. The respondent No. 1 purchased one vehicle from the appellant/original OP No. 3/appellant on 19/4/2012. However the two tyres of that vehicle were found defective and damaged within very short time and hence the respondent No. 1 handed over both the tyres to appellant on 1/9/2012. The appellant sent both the tyres to original OP Nos. 1 and 2/respondent Nos. 2 and 3 herein for inspection vide letter dated 1/9/2012. The respondent Nos. 2 and 3 vide their letter dated 27/09/2012 did not accept the claim of respondent No. 1 on the ground that the said tyres were damaged due to neglecting the injury caused by cuts to the said tyres and that there is no manufacturing defect in both the tyres. Hence the respondent No. 1 sent a notice dated 18/10/2012 to respondent Nos. 2 and 3 thereby called upon them to replace both the tyres by new tyres. But no compliance of the same was made. Hence respondent No. 1 alleging deficiency in service on the part of the appellant and respondent Nos. 2 and 3 filed a consumer complaint seeking direction to them to replace both the damaged tyres by new tyres or in alternative refund him price of the same and also to pay him compensation of Rs. 80,000/- with interest towards the loss suffered by him.
3. The said complaint was resisted by the appellant/original OP No. 3 by filing reply to it, in brief as under.
4. The appellant has not rendered deficient service to the respondent No. 1. The damage to both tyres was caused because the said vehicle was used by the respondent No. 1 by making change in it and therefore warranty of that vehicle was terminated. Due to change in the vehicle, adverse effect was caused on it and hence the respondent No. 1 cannot make any allegations against the company. It is also submitted that the complaint is bad in law for non joinder of necessary party and that the transaction of the vehicle took place at Nagpur and hence additional District Consumer Forum, Nagpur has no jurisdiction to entertain the complaint. Therefore it was requested by the appellant that the complaint may be dismissed.
5. The respondent No. 2/original OP No. 2 also filed reply to the complaint and resisted the complaint on the ground that there was no transaction in between it and respondent No. 1/original complainant and therefore the respondent No. 1 is not its consumer. Both the tyres were examined on receiving the same from the appellant on 27/9/2012 and it was found that there is no manufacturing defect in both the tyres and it was also found that both the tyres were damaged because no proper care of vehicle was taken while driving it. The tyres might have been damaged due to coming in contact with the hard and pointed substance. Hence it is denied that the respondent No. 2 rendered deficient service to the respondent No. 1.
6. The respondent No. 3 herein/original OP No. 2 failed to appear despite service of notice by the Forum. Hence the Forum proceeded exparte against it as per order dated 19/11/2013.
7. The learned Forum below after hearing both the parties and considering evidence brought on record, passed impugned order on 30/04/2013. The Forum below accepted the aforesaid case of the respondent No. 1 and disbelieved the defence of original OP No. 3/appellant herein and directed the appellant/original OP No. 3 to replace both the damaged tyres by new tyres and to give him fresh warranty card and alternatively to refund him price of both the tyres as on 19/4/2012 and also to pay him compensation of Rs. 3,000/- for physical and mental harassment and litigation cost of Rs. 3,000/-
8. Feeling aggrieved, the original OP No. 3 filed this appeal. We have heard learned advocate Mr. Gajbhiye appearing for the appellant. The respondent Nos. 1 and 3 failed to appear despite service of notice of appeal. Hence this Commission proceeded exparte against them. The learned advocate of the respondent No. 2 Mr. Solat though did not appear for making appeal oral submissions, he filed written notes of arguments in appeal. The appellant also filed written notes of arguments. Therefore we have considered the said written notes of arguments and other material placed before us in this appeal.
9. The learned advocate of the appellant mainly relied on the fact that in vehicle manual it was stated that the proprietary parts not manufactured by Ashok Leyland (AL) Company such as tyres, the warranty terms of suppliers of the tyres will be applicable. Thus, according to learned advocate of the appellant, the Forum below has not considered the same and that the appellant has been erroneously held liable by the Forum when the appellant is not a manufacturer of the vehicle or tyres. He submitted that the appellant is simply authorized dealer of Ashok Leyland Company Private Limited which is manufacturer of the vehicle in question and the appellant did not give any warranty of the tyres to the respondent No. 1 and hence the Forum erred in directing the appellant to replace tyres or to pay its price with compensation and cost. Hence he requested that impugned order may be set aside.
10. On the other hand, the learned advocate of the respondent No. 2 in his written notes of arguments submitted that there is no substance in this appeal and hence the appeal may be dismissed.
11. We find that it was the new vehicle purchased by respondent No. 1 from its dealer which is the appellant. Moreover, the said new vehicle was purchased on 19/4/2012 and its both tyres were damaged within the very short period, that is within a period of four and half months only. Therefore the respondent No. 1 had taken both the tyres to the appellant and the appellant then sent both the said tyres to respondent No. 2 herein.
12. Admittedly the appellant had sent both the tyres along with letter dated 1/9/2012 to the respondent No. 2. It is admitted by the appellant in that letter that some bubbles have been developed in both tyres and therefore they were being sent to the respondent No. 2 for inspection and advice.
13. The respondent No. 2 filed a letter dated 27/9/2012 to show that it informed the appellant that both the tyres were damaged as a result of run flat due to usage of the tyre after neglecting the injury caused by cuts and tyre run under low inflation/no inflation.
14. However, we find that the respondent No. 2 has not disclosed which test was applied and on which basis it came to the conclusion that the cuts injury to both the tyres were neglected and tyres were run under low inflation. In our view the said opinion given by respondent No. 2 is not based on scientific or technical analysis or test & hence same cannot be accepted.
15. It is not disputed that both the tyres developed the bubbles during very short period of four and half months. In the absence of any evidence to show that the bubbles were developed in both the tyres due to any fault in driving of the vehicle, it can be said that there is no substance in the defence raised by the appellant in its reply filed to the complaint. Thus, very fact that bubbles were developed in both the tyres causing damage to both the tyres, during period of warranty is sufficient to hold the dealer of the tyre/appellant as liable to replace the same by new tyre’s or to refund their price to the respondent No. 1
16. We also find that complaint is not bad in law for non joinder of manufacturer of the vehicle since the defects in the tyres were developed dur
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ing the period of warranty. In our view when the vehicle was purchased from the appellant being the dealer of manufacturer, it is now for the appellant to get replaced both the tyres by new tyres by obtaining the same from the manufacturer of the vehicle or to alternatively refund price of both the tyres as on 19/4/2012 17. We therefore hold that the Forum has rightly considered the evidence brought on record and passed the correct impugned order, which needs no interference in this appeal. Thus, the appeal deserves to be dismissed. ORDER I. The appeal is dismissed. II. The impugned order dated 30/04/2013, passed by the Addl. District Consumer Forum, Nagpur in consumer complaint bearing No. 13/57 is confirmed. III. No order as to cost in appeal. IV. Copy of the order be furnished to both the parties, free of cost.