State Consumer Disputes Redressal Commission
Goodyear India Ltd. vs Dr. M.S.Bhasin on 19 January, 2016
2nd Additional Bench
PUNJAB STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 719 of 2015
Date of institution: 30.06.2015
Date of decision : 19.01.2016
M/s Good Year India Ltd, through its Managing Director Mathura
Road, Faridabad, Haryana.-121004
2nd address: Ist Floor, ABW Elegance Tower, Jasola, New Delhi-
110025
.....Appellant/OP No. 2
Versus
1. Dr. M.S. Bhasin, Medical Officer, Civil Hospital, Mandi
Gobindgarh, Organizing Secretary of Indian Medical
Association, Punjab.
2. Auto Serve, near Hero Chowk, opposite Appollo Hospital, GT
Road, Ludhiana-141003
......Respondents/opposite parties
Appeal against the order dated 24.04.2015
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Before:-
Sh. Gurcharan Singh Saran, Presiding Judicial Member
Sh. Jasbir Singh Gill, Member Mrs. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. Vishal Satija, Advocate For respondent No. 1 : Sh. Rajat Malhotra, Advocate For respondent No. 2 : Ex-parte GURCHARAN SINGH SARAN (PRESIDING JUDICIAL MEMBER) This appeal has been preferred by appellant/OP No. 2 (hereinafter referred as 'OP No. 2') under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'Act') against the First Appeal No. 719 of 2015 2 order dated 24.04.2015 in C.C. No. 645 of 24.04.2015 passed by the learned District Consumer Disputes Redressal Forum, Ludhiana (in short the 'District Forum') vide which the complaint filed by the respondent/complainant (herein after referred as 'complainant') was allowed with directions to OPs to replace the two defective tyres of the complainant with new tyres or in the alternative to refund the amount of Rs. 36,000/- and also to pay Rs. 5,000/- as compensation and Rs. 2,000/- as compensation.
2. Complainant filed the complaint under section 12 of the Act against respondents/opposite parties (hereinafter referred as 'OPs') on the averments that in the month of October, 2013, complainant purchased four run flat tyres of OP No. 1 @ Rs. 18,000/- per tyre. OP No. 1 had assured about excellent quality of tyres and standard warranty as per OP No. 1 Policy. However, he failed to issue bill or warranty. On 08.06.2014, two tyres from the above purchased four tyres busted on G.T. Road, near Shahabad, Haryana when he was returning with his family from Delhi. When he approached OP No. 1, OP No. 1 expressed his inability to do anything and started to make lame excuses that it was Sunday, therefore, he could not provide for any make shift arrangement. Then he called Mr. Bhogal of BMW Krishna Automobiles, Dhandari, Ludhiana and he provided remedial measures in the form to two make shift tyres to help the complainant to shift his family to Karnal. On 09.02.2014, complainant approached OP No. 1. Instead of addressing to the grievances of the complainant, Mr. Navneet started convincing the complainant to purchase two new good year tyres so that all the four tyres of the car remained same and regarding bursting of the tyre, the issue will be First Appeal No. 719 of 2015 3 taken with the company. Accordingly, he purchased two tyres for Rs. 36,000/- on 09.06.2014 against a bill. On 12.07.2014, he was shell shocked to observe that both the new tyres purchased subsequently from OP No. 1 developed a bulge on their side walls when they had covered just about 3000 KM. He immediately called upon OP No. 1 and complained about poor quality of tyres. Mr. Rampal of OP No. 1 examined the tyres on 14.07.2014 and remarked that there is crack on inner side of the tyres, due to which it had bulged out, due to pot hole hit theory. Complainant objected to this that there was no sign of any pot hole hit on any of two alloys or a corresponding cut on the outside of the tyres. Then he consulted Mr. Manpreet Mankoo, Tyre expert from M/s Dhiman Tyre and Wheel Care Centre who opined that quality of RFT tyres was poor, therefore they had bulged out. Then he consulted Mr. Harmeet Ahuja, a qualified Mechanical Engineer who had worked in General Motors, Honda, Mercedes Benz, BMW both in India and Abroad and as per his assessment the bulging out was due to manufacturing defect. Complainant again approached OP No. 1 apprised them about the poor quality of the tyres but OP No. 1 refused to do anything. OP No. 1 was selling spurious tyres manufactured by OP No. 2 and this act of OPs amounted to deficiency in service. Hence the complaint with a direction to OPs to replace the defective tyres and issue bill of four tyres purchased by him from OP No. 1, compensation of Rs. 5,00,000/- and litigation expenses of Rs. 11,000/-.
3. OP No. 1 did not contest the complaint as he did not appear despite service, therefore, he was proceeded ex-parte on 21.10.2014. However, OP No. 2 contested the complaint and filed written First Appeal No. 719 of 2015 4 reply/version taking preliminary objections that the complaint was not maintainable qua OP No. 2 as OP No. 2 was a limited company; that on receipt of complaint and as a matter of goodwill, gesture OP No. 2 deputed its engineer to inspect the tyres and said engineer vide its spot report dated 14.07.2014 observed that damage to the sidewall ply cords was due to impact/Bruise from external object, when the vehicle was driven over pot holes/curbs/dividers/bumps on roads at high speeds and they does not have any manufacturing defect. Accordingly, the claim of the complainant was rightly refused according to warranty terms. Complainant had no locus standi to file this complaint, therefore, it be dismissed. On merits, averments stated in the preliminary objections were reiterated. Other averments in the complaint were denied for want of knowledge. It was again reiterated that as per report of their engineer there was no manufacturing defect. Damage to the tyre was due to wrong use of the vehicle by the complainant himself, therefore, there was no deficiency in service on the part of OPs. The complaint was without merit and it be dismissed.
4. Before the District Forum, parties adduced evidence in support of their contentions. Complainant tendered into evidence his affidavit of Dr. M.S. Bhasin Ex. CA, affidavit of Rajbir Singh Ex. C-B, affidavit of Dr. Harchand Singh, Ex. C-C affidavit of Manmeet Mankoo, Ex. C- D, affidavit of Harmit Ahuja Ex. C-E, affidavit of Rajbir Singh Ex. C-1, identity certificate Ex. C-2 copy of certificate issued by Dr. Harchand Singh Ex. C-3, copy of mail dated 31.08.2014 Ex. C-4, copy of retail invoice dated 09.06.2014 Ex. C-5, copy of certificate dated 19.08.2014 Ex. C-6, certificate of Harmit Ahuja Ex. C-7 and closed First Appeal No. 719 of 2015 5 the evidence. On the other hand OP tendered into evidence affidavit of R.K. Gupta Ex. R2A, copy of policy Ex. RW2/1, spot inspection report Ex. RW2/2 and closed the evidence.
5. After going through the allegations as alleged in the complaint, written reply filed by OP No. 2, evidence and documents on the record, the learned District Forum allowed the complaint in terms stated above.
6. In the appeal, it has been argued by the counsel for the appellant that the order passed by the District Forum is based upon conjectures and surmises and passed without applying its mind. The evidence of OPs specifically of their engineer was not taken into consideration. District Forum has failed to take into consideration and that burden of proof was on the complainant to prove manufacturing defect. No expert report (as per section 13 (c) of the Act) was taken. District Forum has wrongly disbelieved the report of the engineer of OPs. Therefore, it was requested that the order of the District Forum is without any merit and it be set-aside.
7. Whereas on the other side counsel for the complainant argued that report of their engineer of OPs is not sufficient to say that the damage was due to some external damage on account of wrong driving of the car by the complainant because in case, the damage would have been from external side, then there would have been some marks on rim etc but no such marks were noted by the engineer of OPs. Otherwise it was not possible that the tyre will burst within one month. The report of the expert is of their own company who will not give any report against the company. No independent expert was examined by OPs whereas complainant had examined First Appeal No. 719 of 2015 6 independent experts. Therefore, District Forum was justified to accept the complaint of the complainant after appreciating the evidence of the parties on the record.
8. We have considered the contentions as raised by the parties.
9. The main grouse of OPs is that report of their engineer was wrongly declined and evidence was not properly appreciated on the record. The report of the engineer of OPs dated 14.07.2014 is as under:-
Observations:- On observation found damage to the sidewall ply cords due to impact/Bruise from external object. Such damages normally occurs when tyre is driven over pot holes/curbs/dividers/bump on roads at high speeds. Tyre does not suffer from any manufacturing defect hence not covered under warranty. However as pointed out by the counsel for the complainant that in case this impact/Bruise had occurred when vehicle was driven over pot holes/ curbs/dividers bumps on roads at high speed, then this damage can be to the tyres but similarly in case, there is some damage to the tyre, on such a road which not good for driving condition, then its impact would have been on the rim etc, but no such marks were noted by engineer of OPs. Whereas on the other hand complainant has examined on the record Mr. Manmeet Mankoo of Dhiman Tyre and Wheel Care Centre Ex C-D has referred report Ex. C-6 who observed as under:-
1) That good year tyres in contention are manufactured in April 2013 and have been fixed in 10th June, 2014.
2) The quality of good year RFT tyres in contention is poor so they have budged out in less than 3000 Km.First Appeal No. 719 of 2015 7
3) God year tyres come with 5 year warranty which has not been delivering by Autoserve Ludhiana.
Then he has examined Mr. Harmit Ahuja, former CEO BMW Krishna Automobile Consultant (India) who has experience with General Motors, Honda, Mercedes Benz, BMW both in India and Abroad. He has given his report Ex. C-7. In his report has stated that the complainant had put on 4 new Goodyear RFTs in October 2013. Out of which two tyres burst on road in June 2014. Thereafter he got 2 new RFT which developed bulge within 3000 KM. Two tyres developed bubbles/cracks cannot be attributed to bad roads and to his mind is due to the internal crack failing as there was no clear evidence of impact. If a tyre crashes into a pathole, how will it develop a bulge? Then he will expect a tear and to his opinion, it is a manufacturing defect.
10. Another plea was taken by the counsel for the appellant that he had taken Good year tyre in June 2014, he changed two tyres out of four new tyres purchased by the complainant in June, 2013. There is no bill on the record of 2013. Bill is with regard to two tyres purchased in June, 2014, therefore it is to be determined whether the tyres purchased in 2013 had bursted or tyres purchased in 2014 had bursted. To reply to this query we can check bill produced on the record by the complainant. It is Ex. C-5 and description of the tyre has been mentioned as GY.225/50R17 TL RFT and in case we go through the inspection report of their engineer Ex. RW2/2, the same description has been mentioned in his report. Therefore, inspection report of the engineer of OPs tally with description of the tyres given First Appeal No. 719 of 2015 8 in bill Ex. C-5, therefore, sufficient evidence is on the record that the tyres purchased in June,2014 had bulged in July 2014. It is further supported by an affidavit of engineer Ex. C-7. Therefore, we do not see any merit in this contention raised by counsel for OPs/appellants. Moreover no affidavit of engineer of OPs is tendered by OPs to support the report that tyres purchased in 2014 were not damaged, so that the complainant could have a chance to put his own version to their expert. Therefore, we do not agree with the pleas raised by counsel for OPs that District Forum had failed to properly appreciate the evidence on the record that the report of their engineer was wrongly ignored. We are of the opinion that the District Forum appreciated the evidence on the record. Findings are correct. We do not see any illegality in the order and the same is hereby affirmed.
11. In view of the above, we do not see any merit in the appeal and the same is hereby dismissed.
12. The appellants had deposited an amount of Rs. 21,500/- with this Commission at the time of filing the appeal and Rs. 10,000/- in compliance with the order dated 13.07.2015. Both these amounts alongwith interest accrued thereon, if any, be remitted by the registry to respondent No. 1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days of sending the certified copy of the order to the parties, subject to stay, if any, by the higher Fora/Court.
13. Remaining amount shall be paid by the appellants to respondent within 30 days from the receipt of the copy of the order. First Appeal No. 719 of 2015 9
14. The arguments in these appeals were heard on 06.01.2016 and the order was reserved. Now the order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER (SURINDER PAL KAUR) MEMBER January 19, 2016 Rupinder