State Consumer Disputes Redressal Commission
Ajayan vs Md,M/S Ceat Company Ltd on 23 June, 2015
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.594/2013 JUDGMENT DATED 23/06/2015 (Appeal filed against the order in CC No.71/2004 on the file of CDRF, Kollam dated, 31/07/2013) PRESENT: SMT. A. RADHA : MEMBER SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER SMT. SANTHAMMA THOMAS : MEMBER APPELLANT: Ajayan, S/o. Sidhan, Bungalavil Veedu, Perumpuzha P.O., Kundara, Kollam District. (By Adv: Dinesh Sajan) Vs RESPONDENTS: The Managing Director, M/s. CEAT Ltd., Company, Regd. Office 463, Dr. Annie Besant Road, Mumbai-400 025. (By R1 Adv: Ushas) 2. Mr. K.J. Abraham, Regional Manager, M.s.CEAT Ltd. Company, M.G. Road, Cochin-682 016. M/s. J.S.M. Tyres, Authorised Dealer, Kallumzhatham, Kilikolloor P.O., Kollam District. (By Advs: K. Dharmajan & S. Navajoth) JUDGMENT
SMT. A. RADHA : MEMBER Appellant is the complainant in O.P(Q)71/2004 on the file of CDRF, Kollam who preferred this appeal.
2. In brief, complainant purchased two tyres for Rs.20,050/- on 9/7/2002 from the 3rd opposite party who is the authorized dealer of 1st and 2nd opposite party. The tyres were used in a JCB belonging to his mother. The complainant was an un-employed youth and used the JCB for self-employment purpose. The complainant generated Rs.2000/- per day out of the JCB operation and an amount of Rs.23,150/- was remitting towards the KFC loan taken for the purchase of the vehicle in his mother's name. The allegation of the complainant is that the tyres could be used for hardly one year and two months and got burst due to defective edges and air bulging between the plights in different parts. It is alleged in the complaint that the defect occurred due to manufacturing defect of the tyres and returned the defective tyres to the 3rd opposite party on 15/9/2003. The 3rd opposite party never heeded to the request of the complainant and filed this complaint against the opposite parties for deficiency in service and unfair trade practice. The complainant claimed Rs.1,30,050/-.
3. The 1st and 2nd opposite parties filed version contenting that the complainant is not a consumer under Section 2(d) of the Consumer Protection Act and complaint is to be dismissed in-limine. The complainant is not authorized to file the present complaint. The 1st and 2nd opposite parties have only principal to principal relation with the dealers. It is contended that the Territory Manager recommended replacement offer of new tyre for Rs.1561/- + taxes taking into consideration of the actual use of the tyre for over one year. Moreover the 3rd opposite party, the dealer, is in possession of the tyre and the 1st and 2nd opposite parties are not liable to pay any compensation and cost claimed by the complainant. There is no privity of contract between the complainant and these opposite parties after the sale of tyres. The tyres were used exclusively in JCB for more than one year and if at all there has any allegation regarding manufacturing defect it should be proved on expert opinion. It was revealed on examination that the tyres failed due to 'Rim digging' which is not a manufacturing defect. Hence no liability can be fastened upon the 1st and 2nd opposite parties.
4. The contention raised by the 3rd opposite party is that the JCB is owned by the complainant's mother, Smt. Geetha Bai and JCB has been used as public carriage for commercial purpose. Neither the complainant nor his mother is a consumer as defined in Section 2(d) of the Consumer Protection Act. It is admitted that the complainant purchased 2 tyres on 9/7/2002. It is also admitted that the 3rd opposite party is one of the authorized dealers of the 1st opposite party. On inspection it was found that the failure of tyres was due to Rim digging which is not a manufacturing defect. Considering the extend of use of the tyre the territory manager recommended for a replacement offer of a new tyre on payment of Rs.1561/- + taxes on taking into consideration the actual use of the tyres. The complainant was not amenable and as there is no manufacturing defect the complaint is only to be dismissed. There is no deficiency in service and no loss caused on behalf of the 3rd opposite party. The complainant is not at all a consumer as envisaged under the Consumer Protection Act and complaint is not maintainable.
5. The evidence consisted of the oral testimony of the complainant as PW1 and Exbt:P1 to P6 were marked. The Expert Commissioner as PW2 was examined and marked Exbt:X1. On the part of opposite parties DW1 was examined and Exbt:D1 to D3 were marked. On appreciation of evidence and documents the Forum Below dismissed the complaint on ground of maintainability after long lapse of years and after taking evidence. If at all the maintainability question is to be decided it is to be done at the very 1st instance itself. The complaint was filed in 2004 and the order passed in 31/7/2013 finding that the JCB had been using by the complainant for commercial purpose and the complaint is not maintainable and dismissed the complaint.
6. It is true that the JCB belongs to the mother of the appellant and the appellant used the vehicle for commercial purpose The vehicle was purchased on availing loan from KFC exclusively for the livelihood of the family by providing a self-employment to his son who is the complainant/appellant in this case and the Forum Below failed to consider that the vehicle was used for the purpose of earning the livelihood of the complainant. The evidence adduced by the complainant was not appreciated by the Forum Below and rejected the entire evidence. The counsel also pointed out that the 3rd opposite party was declared exparte appeared, before the Forum Below after a lapse of 8 years and proceeded with irregularity which is un-sustainable under law. The bill dated 9/7/2002 was in the name of the appellant and the mother of the appellant is not a necessary party in this case and is not at all directly involved in this transaction. One tyre burst due to defective edges and the manufacturing defect of air bulging was not considered by the Forum Below. The Expert Commissioner failed to ascertain and report the condition of the rim which was fatal to the case of the complainant. The complainant had to spend Rs.22,500/- for the purchase of a new set of tyres and the 2nd set of tyres also used in the same wheel ring. There had no rim digging found out and the contentions raised by the respondents are contrary to the set of facts. After taking whole evidence the District Forum dismissed the complaint denying natural justice without considering the evidence on the sole question of maintainability. It is also prayed that the complaint is to be admitted and consider the valuable evidence adduced by the complainant.
7. It is argued by the counsel for the respondent that the 2 tyres purchased for JCB on 9/7/2002 were used in the JCB owned by the mother of the complainant. It is stated in the complaint that the complainant is using the vehicle and earning Rs.2000/- per day as it is used for earth-work under different contractors. The complainant was using the vehicle. The complaint is filed by the complainant alone whereas his mother is not a party to the proceedings. The complainant was not authorized to contest the case on behalf of his mother. It is argued that the complainant is not a consumer as defined under Section 2(d) of the Consumer Protection Act and complaint is to be dismissed in-limine. It is pertinent to point out that the Expert Commissioner deposed that the vehicle was exclusively used for more than one year and the only defect found out was 'Rim digging' which is not a manufacturing defect and there is no liability for 1st and 2nd respondents against the claim made by the appellant/complainant. The question is to be decided is whether the complainant is a consumer. While taking evidence the appellant deposed that his mother is no more. Nothing is on evidence to show that the complainant has impleaded the legal heirs of his mother in order to proceed the case. The appellant/complainant is not authorized to conduct the case nor he is a consumer of the respondents. The claim for compensation against the respondents is not liable to be responded on the ground that the complainant is not a consumer and the Forum Below rightly dismissed the complaint.
8. Heard both sides in detail and on going through the documents it is clear that the complainant purchased 2 tyres for the JCB which is owned by his mother. In the instant case his mother was not made a party nor he is authorized by his mother to file the complaint. The vehicle was exclusively used for the works under different contractors which clearly shows that JCB was used for commercial purpose. In the deposition of PW1 he has stated that his mother died and she is not a party in this case. No impleadment is carried out as the legal heirs of his mother. Hence the allegations made by the complainant cannot be taken into evidence as he is not a consumer under the Consumer Protection Act. The District Forum rightly concluded that the complainant is not a consumer and dismissed the complaint as not maintainable.
In the result, appeal is dismissed and we uphold the order passed by the Forum Below.
The office is directed to send a copy of this order to the Forum Below along with LCR.
A. RADHA : MEMBER
K. CHANDRADAS NADAR : JUDICIAL MEMBER
SANTHAMMA THOMAS : MEMBER
Sa.
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION
THIRUVANANTHAPURAM
APPEAL NO.594/2013
JUDGMENT DATED 23/06/2015
Sa.