State Consumer Disputes Redressal Commission
M.R.F.Ltd.Dk Warehouse vs Mahendra Mahadeo Kapade on 8 February, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/14/207 (Arisen out of Order Dated 09/01/2014 in Case No. CC/52/2013 of District Amravati) 1. M.R.F.Ltd.Dk Warehouse murtizapur road,sisa,post-dongagaron,akola akola ...........Appellant(s) Versus 1. Mahendra Mahadeo Kapade shivani rasulapur,tah-nandgaon,khandeshwar,dist-amravati amravati 2. m/s.vidarbha tyres shop no.31-35 divisional sports complex morshi road,amravati amravati ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Appellant: For the Respondent: Dated : 08 Feb 2018 Final Order / Judgement (Delivered on 08/02/2018) PER SHRI B.A. SHAIKH, HON'BLE PRESIDING MEMBER.
1. This appeal is filed by the original opposite party No. 2, the manufacturer of the tyres it is hereinafter referred to as appellant. The original opposite party No. 1 is the dealer of the said tyres appointed by the appellant. The said dealer is hereinafter referred to as respondent No. 2. The original complainant is hereinafter referred to as respondent No. 1.
2. The respondent No. 1 had purchased two tyres of truck from the respondent No. 2, manufactured by the appellant. Those tyres were purchased by the respondent No. 1 from the respondent No. 2 on 15/01/2013 for consideration of Rs. 34,400/-. However, the said two tyres were burst one after another and therefore the complainant had taken both the tyres one after another to respondent No. 2 and requested him to replace said tyres by new tyres as the period of guarantee was not expired. The respondent No. 2 sent the said tyres to the appellant for inspection. The appellant inspected the said tyres in its laboratory with the assistance of Technical person . The appellant submitted that both the tyres were damaged due to air formation and not due to manufacturing defects. Therefore, said tyres were not replaced by new tyres. Hence, the respondent No. 1 issued notice to the appellant and respondent No. 2 and on not getting positive reply, he filed consumer complaint before the District Consumer Forum seeking direction to appellant & respondent No. 2 to pay him total amount of Rs. 1,35,400/- including the price of both the tyres and compensation and further claiming the mesne profit at the rate of 1000/- per day with interest at the rate of 12% p.a.
3. The appellant appeared before the District Consumer Forum and resisted the complaint by filing reply. It raised preliminary objection that the complaint as against it is not maintainable. It also submitted that the complainant failed to explain as to how the tyres are found defective. Moreover, there is no expert opinion in support of allegation made in the complaint. It is admitted that the complainant had purchased two tyres manufactured by the appellant. It is the case of the appellant in brief that respondent No. 1 failed to disclose the weight of sand which he was carrying by the said truck. Moreover, the appellant has not given any performance/guarantee/ warranty/ assurance regarding tyres/tubes to the respondent No. 1 nor authorized any person to give the same. The tyres can catch air and can burst due to overweight. In inspection it was revealed that the tyres were damaged due to concussion caused due to sudden impact with some heavy object. Thus there is no manufacturing defect in the tyres and instructions were given to the respondent No. 1 to collect the tyres from the respondent No. 2 which he had handed over to the respondent No. 2- dealer for replacement. As there is no manufacturing defect in the tyres, the appellant is not liable to pay any amount to the respondent No. 1 and hence, it was prayed that complaint may be dismissed.
4. The respondent No. 2 had also filed reply before the District Consumer Forum as seen from the observation made in the para No. 12 of the impugned order. The respondent No. 2 denied its liability in the said reply.
5. The District Consumer Forum below after hearing both the parties and considering evidence brought on record passed the impugned order and thereby partly allowed the complaint. The District Consumer Forum did not agree with the aforesaid defence of the appellant and held that as tyres were under warranty period and as they were burst due to manufacturing defect, the respondent No. 1 is entitled to replacement of old tyres by new tyres of the same size and company. Therefore, the Forum directed the appellant and respondent No. 2 to replace both tyres accordingly within 30 days from the date of order and in case of default the original complainant /respondent No. 1 herein will be entitled to get recovered the price of both tyres with interest at the rate of 9% p.a. from appellant and respondent No. 2 and also to pay him compensation of Rs. 500/- and litigation cost of Rs. 500/-.
6. As observed above this appeal is filed by the original O.P. No. 2 i.e. manufacturer of the tyres.
The learned advocate of the appellant Mr. S.B.Solat reiterated the aforesaid case of the appellant as set out before the Forum below and further submitted that there was no expert opinion in support of the case of the respondent No. 1 about manufacturing defect in the tyres and that testing report of the laboratory of the appellant is sufficient to prove that there was no manufacturing defect in the tyres. Thus according to him, the Forum has not properly considered the evidence brought on record and therefore the impugned order is illegal and it may be set aside.
7. It is seen that the respondent Nos. 1&2 failed to appear in this appeal before this Commission though they were duly served with notice. Therefore, this Commission proceeded exparte against them. It is not disputed that two tyres were burst within period of 34 days and 75 days respectively from the date of their purchase and those tyres were taken by the respondent No. 1 to the respondent No. 2 for inspection. However, when both tyres were sent by the respondent No. 2 to the appellant , the test was done in their own laboratory and it was the case of the appellant that there was no manufacturing defect in both the tyres as found in the testing report. The sole defence of the appellant is that the tyres can catch air and can burst due to overweight . Moreover, the tyres were damaged due to concussion caused due to sudden impact with some heavy object.
8. However, we find that the aforesaid defence taken by the appellant is not supported by any independent opinion or evidence. The appellant simply relied on its own report obtained from its laboratory. The District Consumer Forum below has rightly disbelieved the said report as it is not given in detail. No details of scientific analysis are given in the report showing as to how no manufacturing defect is found in both the tyres.
9. In our view as both the tyres were not in possession of the respondent No. 1 during pendency of the complaint, it was incumbent upon the appellant to request the District Consumer Forum to send both the tyres to independent expert for opinion about manufacturing defect if any in both the tyres. However, no such request was made by the appellant to the District Consumer Forum below.
10. We also find that in the absence of any cogent evidence it can not be presumed that the tyres were burst due to carrying overweight in the vehicle. It cannot be presumed that the respondent No. 1 had over loaded the vehicle & due to that reason damaged was caused to both the tyres one after another. Thus taking into consideration that both the tyres were burst within a very short period after their purchase, a reasonable inference can be drawn that there was manufacturing defect in both the tyres.
11. Therefore, we are of the considered view that the Forum has rightly directed the appellant and respondent No. 2 either to replace both old tyres by new tyres of same company and same size or to refund the price of both tyres with interest at the rate of 9%p.a. We thus find no substance in this appeal and it deserves to be dismissed.
ORDER i. The appeal is dismissed. ii. No order as to cost in appeal. iii. Copy of order be furnished to both the parties, free of cost. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER