National Consumer Disputes Redressal
Suresh Chand Jain vs Service Engineer And Sales Supervisor, on 16 December, 2010
\This Order shall dispose of Revision Petition No
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION
PETITION NO. 3845 of 2006
(From
the Order dated 12.10.2006
in Appeal No. 1136/04 the
State Consumer Disputes Redressal Commission, Haryana)
Suresh Chand Jain
S/o Munna
Lal Jain
R/o 608 Honian
Street,
Jagadhri (Yamuna Nagar), Haryana Petitioner
VERSUS
1.Service Engineer and Sales
Supervisor,
M.R.F. Ltd., W-9, Industiral
Area,
Yamuna Nagar (Haryana)
2.
M/s. Krishan Lal Makkar & Sons,
Radour Road,
Yamuna Nagar, (Haryana) Respondents
REVISION
PETITION NO. 3846 of 2006
(From
the Order dated 12.10.2006
in Appeal No. 1137/04 the
State Consumer Disputes Redressal Commission, Haryana)
Suresh Chand Jain
S/o Munna
Lal Jain
R/o 608 Honian
Street,
Jagadhri (Yamuna Nagar), Haryana Petitioner
VERSUS
1.Service Engineer and Sales
Supervisor,
M.R.F. Ltd., W-9, Industiral
Area,
Yamuna Nagar (Haryana)
2.
M/s. Krishan Lal Makkar & Sons,
Radour Road,
Yamuna Nagar, (Haryana) Respondents
BEFORE: -
HONBLE MR. JUSTICE ASHOK
BHAN, PRESIDENT
HONBLE MRS. VINEETA RAI, MEMBER
For the
Petitioner in both :
In Person
the Petition :
For the Respondents in both :
Ms. Surekha Raman and
the Petitions Mr. Anuj Sharma,
Advocates
PRONOUNCED ON:
16.12.2010
O R D E R
ASHOK BHAN, J., PRESIDENT This Order shall dispose of Revision Petition No.3846/2006 and 3846/2006 as the parties to this litigation are the same and point involved in both the cases is same.
Petitioner-Complainant filed two Complaint being No. 85/03 (Revision Petition No.3846/06) and 493/03 (Revision Petition No.3845/06) respectively, before the District Consumer Disputes Redressal Forum (for short, the District Forum). In Complaint No.85/03 it was averred that the complainant purchased one tyre No.42413070899 from the market (dealer) of M.R.F. in the month of August, 2002 but the said tyre was damaged on the side on 29th January, 2003 due to some manufacturing defect. In the second complaint No.493/03 it was mentioned that the complainant had purchased five tyres of MRF M/s. Krishan Lal Makker and Sons, Radaur Road, Yamuna Nagar vide bill No.427 dated 24.8.2002 for his Maruti Car bearing No.HR-02E-233. The complaint related to tyre bearing No.60388993133. That the respondents despite having been approached, did not replace the tyres. Aggrieved by this, Petitioner filed complaints before the District Forum.
Upon notice Respondents put in appearance and filed their written statements stating that the allegations made in the complaints are totally false and frivolous. That there was no manufacturing defect in the tyres and that the tyres were damaged due to careless driving of the driver. That the complainants had been filed after one year of the purchase of tyres which showed that there was no manufacturing defect in the tyres. The complaints were filed beyond the period of limitation. That the complainant failed to prove the manufacturing defect. That the Respondents had got the tyres examined from their Technical Service Engineer who pointed out that that the tyre bearing No.42419070899 (Complaint No.85/03) was damaged due to Sidewall Concussion/Side Wall Cut which was caused due to sudden impact with some sharp/stationary object while the vehicle was in motion.
District Forum allowed complaint No.85/03 in the following terms:
Resultantly, we allow the complaint of the complainant and direct the respondents to pay the amount of tyre on pro-rata basis after deducting the period of guarantee of one year out of total five years warranty (as is clear from the guarantee issued by the respondents) i.e. Rs.1300 260 = Rs.1040/- to the complainant as value of one year which was got deposited with the respondents on 29.1.2003 along with interest @ 12% p.a. interest from the date of deposit till the date of realization of payment. The complainant has also suffered mental agony, harassment etc. due to the negligence and deficiency in service on the part of the respondents. So, we also direct the respondents to pay a sum of Rs.500/- to the complainant as compensation on account of mental agony, harassment and litigation expenses etc. The above said order be complied within one month from the date of this order. File be consigned to the record room.
The District Forum also allowed Complaint No.493/03 by passing a similar order.
Aggrieved by the orders of the District Forum, the Petitioner filed two separate appeals being First Appeal No.1136/04 (complaint No.85/03) and First Appeal No.1137/2004 (complaint No.493/03). The State Commission, inter alia, relying upon the report of the Technical Service Engineer allowed the appeals and set aside the orders passed by the District Forum by two separate orders dated 12.10.2006. The State Commission has recorded the following reasons for allowing the Appeal No.1137/2004:
It is settled law that in order to succeed, the complainant has not only to allege the nature of manufacturing defect in the tyre but also to prove the same by leading evidence including expert evidence. In this case surprising enough in the complaint the complainant has deliberately avoided to mention the specific nature of the defect in the tyre in question when he diecided to make the report to the dealer on 30.8.2003. The only averment made in the complaint is that damaged tyre in question was handed over to the dealer on 30.8.2003 which was delivered on 5.9.2003 to the opposite party No.1 being the manufacturer of the tyre but thereafter they failed to replace the same during the warranty period.
Even the stand taken from the opposite side is totally ignored, on the strength of the allegations made in the complaint it deserves to be rejected out rightly. In this case no better position is spelled out in the affidavit filed by the complainant. Apart from that he has not led ny expert evidence with regard to the nature of the damage of the tyre in question, rather, nature of the damage has been specified by Technical Service Engineer Shri Ashrati De, who has clearly stated that the tyre was found damaged due to cut in the tyre with sharp edged object and this cut had resulted due to side wall cut while the tyre was in motion and had come into contact with some shart object.
The only reason for such a cut can be due to the negligent driving of the complainant or his driver. In fact it was the duty of the complainant to have explained as to how this cut had resulted in tyre. It is not his case that at the time of its purchase when the tyre was delivered to him on 24.8.2002, he had noticed any manufacturing defect in the tyre. He used the said tyre almost for a period of about one year, that too without any complaint and how this cut resulted all of a sudden. Under the circumstances of the case, the report of the Technical Service Engineer cannot be rejected on the ground that it has been submitted by the employee of the manufacturer company. There is no such rule of law that affidavit of Shri Ashrati Dev, Technical Service Engineer deserves to be rejected on the short ground that he is an employee of the opposite party No.1, rather, the only rule of caution required is that the stand taken by the Technical Service Engineer in his affidavit coupled with his report be scrutinized with proper care and caution. Copy of the affidavit has also been placed on record of this appeal. No expert evidence has been led from the side of the complainant to dislodge the above report. Even otherwise we find no other material on record to draw an inference that report is based on data other than the factual position spelled out from the examination of the tyre in question. All these aspects have not been given due consideration by the District Forum while accepting the complaint and for that reason the impugned order cannot be sustained Appeal No.1136/2004 was also allowed by recording similar reasons.
Petitioner who has appeared in person contends that the State Commission has erred in relying upon the report of the Technical Service Engineer as the tyre numbers given in the report do not tally with the tyres which were purchased by the Petitioner.
We do not find any substance in this submission.
In Complaint No. 85/2003 the tyre number given is 42413070899 whereas in the report of Technical Service Engineer it is mentioned as 42419070899. It would be seen that only fifth digit of the tyre number mentioned by the Technical Service Engineer is different that that of mentioned by the complainant and all other digits are the same. In Complaint No. 493/2003 the tyre number given is 60388993133 whereas in the report of Technical Service Engineer it is mentioned as 617388993133. In this case the first three digits of the tyre mentioned by the complainant and Technical Service Engineer are different. It seems that the difference in the digits is due to some typographical mistake otherwise rest of the digits as well as size of the tyres tally.
Apart from the above, the tyres in question were purchased by the Petitioner in August, 2002 whereas report was made to the dealer after four months (complaint No.85/03) and about one year (complaint No.493/03). The Petitioner used the tyres during the above period without any complaint. Had there been any defect in the tyre, it would have been noticed immediately after the purchase. The nature of the damage caused to the tyres pointed out by the Technical Service Enginner in complaint No.493/03 was due to thorough cut, caused due to sudden impact with some sharp object while the vehicle in motion and in complaint No.85/03 damage was due to sidewall concussion/side wall cut due to sudden impact with some sharp/stationary object while the vehicle was in motion.
The cut in the tyres may be due to negligent driving or otherwise but certainly cannot be said to be a manufacturing defect. Onus to prove that there was a manufacturing defect in the tyres was on the Petitioner which he failed to discharge by leading any cogent evidence. The Petitioner did not produce any expert evidence to either show the nature of defect or proof of manufacturing defect. The Petitioner has failed to prove that the tyres purchased by him suffered from any manufacturing defect. We agree with the view taken by the Fora below that the Petitioner had failed to prove the allegations made by him in the complaints.
For the reasons stated above, we do not find any merit in these Revision Petitions and dismiss the same with no Order as to costs.
A copy of the order be sent to the parties free of cost.
. . . . . . . . . . . . . . . .
(ASHOK BHAN J.) PRESIDENT . . . . . . . . . . . . . . . .
(VINEETA RAI) MEMBER