State Consumer Disputes Redressal Commission
The Associate Tractor Branch ... vs Solomon,127-B, Antoniar Street,South ... on 23 February, 2012
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.S.Sambandam, B.Sc., MEMBERF.A.8/2011
[Against order in C.C.56/2009 on the file of the DCDRF, Dindugal] DATED THIS THE 23rd DAY OF FEBRUARY 2012
1. The Associate Tractor Branch Office, | Appellants / 1st & 2nd Ops.
Rep. by its Manager, | 211/2, Palani Main Road, | Paaraipatti Medu, Meenakshi Naicken Patti, | Dindigul. | |
2. The Associate Tractor, | Rep. by its Manager, | 11, Heber Road, Beema Nagar, Trichy. | Vs. Solomon, | Respondent/Complainant S/o. Sargunan, | 127-B, Antoniar Street, HoH | South Street, A.Vellodu Village, Dindigul. | The Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.2,00,000/- towards replacement of defective tyres, to pay Rs.50,000/- towards mental agony and Rs.1 lakh towards non-plying of the vehicle. The District Forum partly allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.06.07.2010 in C.C.56/2009.
This appeal coming before us for hearing finally on 06.02.2012, upon hearing the arguments of the either counsel and perused the documents, as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellants /1st & 2nd Ops : Mr. M. Palani, Advocate.
Counsel for the Respondent/Complainant : M/s. J. Franklin, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The opposite parties are the appellants.
2. The complainant/respondent had purchased from the first opposite party, who is the Branch Office of the second opposite party, a Sonalika International Tractor on 12.06.2009 for Rs.5,33,600/- for his personal use. Within the few weeks, cracks developed in all the four tyres, which was informed to the first opposite party, who informed that the Tyre Company will come and inspect and thereafter alone, the tyres could be exchanged. Though promised so, till date, despite notice, the opposite parties failed to replace the defective tyres, thereby caused monetary loss and mental agony to the complainant and thereby he is entitled to a sum of Rs.3,50,000/-, in addition to, replacement of the tyres also.
3. The opposite parties admitting that the complainant had purchased a Tractor from the first opposite party, challenged the claim, on the ground with among other grounds that as dealers, they have obtained the vehicles from the manufacturer and the Tractors were sold as such, if without any defect, that if there was any manufacturing defect in the Apollo Tyres fixed in the Tractor, that should be certified by them and replaced by them, that upon report, the manufacturer inspected the Tyres and noted the defects as Neglected Tread Cuts which should have happened, for other reasons, not by manufacturing defect, that the case is bad for non-joinder of necessary parties, namely the manufacturer of the Tractor as well as the manufacturer of the tyres, praying for the dismissal of the complaint.
4. The District Forum very generously has come to the conclusion, as if, no law is applicable to the parties and there is no burden upon the complainant, to prove the manufacturing defect, directing the opposite parties to pay the value of four tyres fixing at Rs.50,000/-, not based on any documents, as well as fixing a damage of Rs.1 lakh, totaling a sum of Rs.1,50,000/- with interest thereon from 9.7.2009 till the date of payment at 15% per annum with costs of Rs.5,000/-, as per the order dated 06.07.2010, which is challenged, on various grounds.
5. The learned counsel for the appellants would contend that as dealers, they have not given any warranty for the Tractor or Tyres and in the absence of any warranty, the directions issued by the District Forum to pay the value of the tyres, as well as compensation must be held as illegal. It is the further submission of the learned counsel for the appellants, that there is no plea regarding negligence or deficiency in service and as contemplated under Section 14 of the Consumer Protection Act not finding also given and in the absence of any finding on these two aspects, ordering compensation is erroneous. A final submission was made that the Trial Forum has committed a blunder in not appreciating the defence that the case is not maintainable, because of the non-joinder of necessary parties, which are all opposed.
6. There is no dispute between the parties that the complainant had purchased from the first opposite party a Sonalika International Tractor for a sum of Rs.5,33,600/-, which is evidenced by Invoice also. According to the complainant, within few weeks, cracks erupted in all the four tyres and therefore, he sought replacement, not accepted, resulting this complaint. By going through the pleadings, in the consumer complaint, we are unable to find any reason pleaded, how and on what ground, the complainant claims replacement of the tyres, even assuming there were cracks, subsequent to the purchase. It is not the case of the complainant, that at the time of purchase of the tyres itself, there were cracks or defect in the tyres. Therefore, ordinarily, the dealer is not entitled to answer the defect, occurred if any, after the sale and if at all any warranty was given by the dealer, they are answerable. No case is pleaded, that the dealer has given any warranty, either for tractor or for tyres. This being position, it is unfortunate, the District Forum has slapped an order, for the cracks developed or occurred in the tyres, after purchase against the opposite parties. There is no plea of manufacturing defect, there is no plea of warranty given by the manufacturer of the tractor or the manufacturer of the tyres or by both as the case may be. In the absence of warranty pleaded, proved, generally if any defect had occurred after the sale, the dealers cannot be held responsible. If at all, on the basis of the warranty, the manufacturer of the tractor or the manufacturer of the tyres also can be preceded and unfortunately, they were not impleaded as party to the proceedings, and therefore, as rightly urged on behalf of the appellants, it should be held, that the case is bad for non-joinder of necessary parties, namely manufacturer of tyres.
7. It is the settled preposition of law, if manufacturing defect is alleged either directly or impliedly, the burden is upon the complainant, to prove the same.
In this case, the tyres in question were not subjected to any expert opinion, to find out the manufacturing defect. The District Forum has also not recorded any finding, on seeing the tyres that the cracks should have occurred due to inherent manufacturing defect, thereby showing that there was visible manufacturing defect. If that is so, Section 13 of the Consumer Protection Act contemplates, what is the procedure to be followed, here not followed and therefore, it is unfortunate, the District Forum presumed, which is not acceptable to law.
8. Admittedly, within few weeks from the date of purchase, tyres fixed in the tractor had some problems and the same was reported to the first opposite party, who in turn, reported the same to Apollo Tyre Company. The Apollo Tyre Company deputed his men, for inspection and after inspection, they have noted the defect as Neglected Tread Cuts, which is not coming within the meaning of manufacturing defect. Therefore, they declined to accept the replacement on the basis of warranty claim. Atleast thereafter, the complainant should have taken steps to send the defective cracks tyres, for independent expert opinion recognized by the Government or to some other agencies. Therefore, when there is a prima facie evidence that the defects cracks in the tyres had happened, due to Neglected Tread Cuts, the opposite parties/dealers cannot be held responsible. This kind of defect will happen, as per the Written Version, supported by affidavit, due to overloading or insufficient pressure in the tyre or driving the tractor in an uneven surface, having possibility of tearing the tyres, which cannot be ruled out. The District Forum, without considering all these facts and evidentiary value of Ex.B1, not even rejecting the same, has unilaterally come to the conclusion, that this kind of crack will not occur except in the case of manufacturing defect, and we are unable to see any logic, how this conclusion was reached, as if, Apollo Tyres had issued a report, suppressing the manufacture defect, when the manufacturing defect is not proved. As said above, there is no plea, that the defect had occurred due to manufacturing defect, by the Tyre Company.
But the District Forum has given a finding, that the defects in the tyres had happened due to manufacturing, by the Tyre Company. If that is to be accepted, then the District Forum should have given a direction against the Tyre Company, impleading them as a party, which was not done, whereas a dealer who has not given any warranty, was penalized, by the District Forum, which finding, we are unable to concur. For the above reasons, the complainant has miserably failed to prove the manufacturing defect, whereas it is made out by the opposite parties, that the cracks should have developed for some reasons, for that ordering compensation or ordering price for the tyres, that too, without any basis, is erroneous and therefore, we are constrained to interfere with the findings of the District Forum, allowing, the appeal.
9. Appeal is allowed, the order of the District Forum in C.C.56/2009, dt.06.07.2010 is set aside, and the complaint is dismissed.
Considering the facts and circumstances of the case, we make no order as to cost, throughout.
10. The Registry is directed to handover the Fixed Deposit Receipt made by way of mandatory deposit, to the appellants/opposite parties, duly discharged.
S. SAMBANDAM M.THANIKACHALAM MEMBER PRESIDENT