State Consumer Disputes Redressal Commission
Bridgestone India Pvt. Ltd vs Sandeep Kumar on 13 January, 2020
1st Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.305 of 2018
Date of Institution : 21.05.2018
Date of Decision : 13.01.2020
Bridgestone India Private Limited, Plot No.12, Kheda Growth
Centre, Post Sagore, Pithampur, District Dhar (M.P.), through
its authorized representative.
.....Appellant/opposite party no.2
Versus
1. Shri Sandeep Kumar @ Sonu Goyal, Prop. of M/s Goyal
Sons Dhobi Bazar, Bhatinda.
.....Respondent no.1/complainant
2. M/s Hindustan Tyres, 100 Ft. Road, North Estate,
Bhatinda, through its proprietor..
.....Respondent no.2/opposite party no.1
First Appeal against order dated
18.01.2018 passed by the District
Consumer Disputes Redressal
Forum, Bathinda.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Ms. Kiran Sibal, Member
Present:-
For the appellant : Sh. M.P. Upadhyay, Advocate For the respondents : Ex-parte ............................................ Kiran Sibal, Member:
This appeal has been preferred by the appellant against the order dated 18.01.2018 passed by District Consumer Disputes Redressal Forum, Bathinda (in short, "the First Appeal no.305 of 2018 2 District Forum"), whereby the complaint filed by complainant/respondent, under Section 12 of the Consumer Protection Act, 1986, was partly allowed by directing appellant and respondent no.2 of this appeal to pay Rs.5000/- as cost and compensation and to refund the price of two tyres i.e. 12,300/- to respondent no.1/complainant.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
Facts of the Complaint
3. Brief facts, as averred in the complaint, are that complainant has been running the business under the name of M/s Goyal Sons, Dhobi Bazar, Bathinda, which is the only source of his livelihood and he is the sole proprietor of the said concern. He is owner of one Innova Car bearing registration No.PB-03S-2888 and being allured by opposite party no.2 (in short "OP") by various means about the Bridgestone tyres regarding its quality, durability etc., visited the shop of OP no.1 and purchased four tyres for his car @ Rs.6150/- per tyre i.e. for a total sum of Rs.24,600/-, vide bill No.2757 dated 17-08-2013 with full warranty on the tyres provided by OP no.1. OP no.1 assured him to provide best possible services and replacement of tyres in case of any defect during the period of guarantee. He started using the tyres in his above said car. On using the purchased tyres, these have been proved to be of poor quality. First Appeal no.305 of 2018 3 The tyres have been ingested and damaged and there are cracks at many places due to which the complainant could not properly use the tyres. He lodged complaint with OP no.1 regarding defects in the tyres and requested for the replacement of the said tyres with new one, as there was some manufacturing defect. The tyres have been ingested and damaged in the month of February, 2014 i.e. after about five months from the date of purchase. After checking the tyres, OP no.1 assured that the said tyres were defect free and there was nothing to worry. Thereafter some cracks also developed in the tyres. He again visited OP no.1 on 25-02-2014 and complained about the same. OP no.1 advised him to get the tyres checked from the service engineers of OP, who in order to avoid their liability to replace the said tyres, prepared a false report that the damage in the said tyres was a pinch cut i.e. sidewall bulge due to the inner plycord caused due to pinching of sidewall between external hard road object and rim flange. The said report was totally false, as the tyres have been ingested due to some manufacturing defect resulting cracks therein. He requested OPs for replacement of the defective tyres, but to no effect. He also issued legal notice dated 02-09-2014 upon OPs in this regard, but OPs gave false reply to it. He alleged deficiency in service and unfair trade practice on the part of OPs and prayed that OPs be directed to replace the defective tyres with new one or in the alternative to refund the amount of Rs.24,600/- to him. First Appeal no.305 of 2018 4 He also prayed for Rs.50,000/- as compensation and Rs.5500/- as cost of litigation.
Defence of the Opposite Parties
4. Upon notice, OPs appeared and filed joint written reply. OPs contested the complaint raising preliminary objections that complaint is baseless, frivolous and has been filed with the ulterior motive to harass the OPs and to extort money. The complaint is liable to be dismissed under Section 26 of the 'Act'. As per provisions of the 'Act' if the complaint relates to any defects (alleged) in the goods, then for proper adjudication of the complaint, test/analysis of the alleged defective goods is required. As per Section 13(1)(c) of the 'Act', said test/analysis needs to be carried out of the said tyres, in the interest of justice, for ascertaining the real cause of the alleged defect. This written version is subject to the report of the aforesaid test/analysis. OPs denied the contents of the complaint except which are explicitly admitted by them. OP no.1, being the responsible dealer of OP no.2, apprised about the quality and durability of tyres manufactured by OP no.2 to the complainant that tyres would be governed under Warranty for a period of three years. Warranty would stand only against the tyre damaged due to manufacturing defect and not against damages caused by road hazards and other external factors. The complainant purchased the tyres in the name of his First Appeal no.305 of 2018 5 business firm. It was denied that complainant used the tyres for personal use. It was further denied that all the tyres were got damaged. The complainant approached OP no.1 with the complaint in one tyre only. Any damage in the tyre is to be inspected by the qualified and trained technical service engineer of OP no.2 and if after inspection, tyre reports damage attributable to manufacturing defect, then the same is replaced in accordance with the Warranty Policy of OP no.2. It was denied that OP no.1 inspected the tyres and assured that there was no defect in the tyres. On receipt of complaint of the complainant, OP no.1 communicated about the complaint to the service engineer of OP no.2, so that the tyre could be technically inspected. On 25-02-2014, qualified and trained technical service engineer of OP no.2 inspected one tyre of size 205/65 R15 pattern ER60 bearing serial No. CEA 1713 and it was reported that damage in the tyre was sidewall bulge caused due to pinching of sidewall between rim flange and external hard object causing damage to inner plycords. Cut mark on the inner liner of the tyre was also found. This type of damage is also termed as "Pinch Cut/Pinch Bulge/Impact Bulge" and being not attributable to manufacturing defect. The claim of the complainant was rejected in accordance with the Warranty policy. The legal notice sent by complainant was duly & timely replied by OP no.2 explaining about the damage mechanism and reasons for not accepting the claim of the First Appeal no.305 of 2018 6 complainant. The OPs controverted the other averments of complainant. The complainant did not produce any evidence in support of serious allegations made against OP no.2 of the tyre having defect or manufactured with low quality material. Without such a test, the complainant being not a technical expert cannot reach to conclusion about the manufacturing defect in the tyre. The manufacturing defect is much more than an ordinary defect which can be cured by replacing the defective part.
"Manufacturing defect" is fundamental basic defect which creeps while manufacturing and to prove such a defect, opinion of an expert is necessary considering that complainant is not satisfied with the opinion of the technical service engineer of OP no.2. The tyre is the only part of the vehicle which touches the road surface directly. It is open to risk of impacts by any solid object, on the road like sharp stones, pothole edges, dividers and such external sharp objects. Pinch Cut/Impact Bulge/Pinch Bulge result from hitting stones, curbs, or sharp edges of holes in the road surface. The function of sidewall tyre is to provide ride and handling performance. Therefore, it is kept soft and flexible. Tyre sidewall, which is made up of the rubber and polyester cord, could get pinched between the road surface and rim when driven over an obstacle or external hard object, at high speed causing severe impact on the tyre sidewall. Due to such impact the plycords are broken/weaken resulting in sidewall bulge. Plycords are the skeleton of tyre and are First Appeal no.305 of 2018 7 responsible for holding and sustaining inflation pressure and load, hence any damage to sidewall plycords will cause sidewall rubber to stretch outward under the influence of air inside tyre chamber and will develop bulge at impact location. Such damages are not treated as manufacturing defect and can happen in any brand of tyre. That is why each tyre should be checked on a regular basis. OP no.2 being tyre manufacturers are responsible for claims related to manufacturing defects arising out of any deficiency in design, manufacturing, material or workmanship. It is the responsibility of the consumer to ensure that vehicle is driven properly for proper working of the tyre fitted in the vehicle. If the tyre gets damaged due to improper vehicle driving, then the manufacturer cannot be held liable for its replacement. It is also pleaded that complainant purchased tyres in the name of his firm, i.e. "Goyal Sons".
Therefore, complainant doesn't fall under the definition of "Consumer". Hence this complaint is liable to be dismissed. OPs denied any deficiency in service and unfair trade practice on their part and prayed for dismissal of complaint. Evidence of the parties and finding of the District Forum
5. The complainant tendered in evidence his affidavit dated 16-12-2014 (Ex. C-1), Retail invoice (Ex. C-2), photocopy of legal notice (Ex. C-3), postal receipt (Ex. C-4), photocopy of claim application form (Ex. C-5) and photocopy of warranty card (Ex. C-6).
First Appeal no.305 of 2018 8
6. On the other hand, OP no.1 tendered in evidence affidavit dated 15-01-2015 of Pokhar Dass (Ex. OP-1/1). OP no.2 tendered in evidence affidavit dated 15-01-2015 of Nitin Bakshi (Ex. OP-2/1), photocopy of pinch shop manual (Ex.OP- 2/2), photocopy of inspection report dated 25-02-2014 (Ex.OP- 2/3), photocopy of pinch shop manual (Ex.OP-2/4 to Ex.OP-2/5) and photocopy of reply of legal notice (Ex. OP-2/6).
7. The District Forum, after going through the record and hearing learned counsel on their behalf, partly accepted the complaint, vide impugned order. Hence, this appeal. Contentions of the Parties
8. We have heard learned counsel for the appellant and have carefully gone through the record of the case.
9. Ld. counsel for the appellant contended that the District Forum failed to appreciate the fact that the onus to prove that there was any manufacturing defect in the tyre was on complainant, but he failed to discharge it by leading any expert evidence except his own affidavit. The District Forum failed to appreciate the report of appellant company's engineer Mr. Nitin and has erred in holding that there is no affidavit of Engineer, who has signed the report, whereas the affidavit of Nitin Bakhsi Ex.OP-2/1 is on the record. The said report dated 25.02.2014 rejected the claim of complainant stating that "Pinch cut found in the tyre due to pinching of sidewall between rim flange and pothole causes ply cord damage results bulging." First Appeal no.305 of 2018 9 Moreover, the complainant lodged the complaint before OPs for one tyre only. The appellant, who had moved an application under Section 13(1)(c) of the Act for inspecting the tyre by the appropriate lab and the same was dismissed by the District Forum. That order was challenged before State Commission and on direction of the State Commission, the alleged tyres were sent to the Government Lab for inspection on the expenses of the appellant company. Subsequently no report was received from the laboratory reason best known to it. Without such a test, the complainant being not a technical expert cannot reach to the conclusion about the manufacturing defect in the tyres. The District Forum fell in error while holding that the report dated 25.02.2014, which is the basis of the rejection of the claim is not acceptable, as the reason of damage conveyed in reply to the legal notice is not accordance with the report dated 25.02.2014, whereas there was no difference between report of the Engineer and reply to legal notice. In reply to legal notice, the OPs only explained the reason of damage. The District Forum accepted the complaint in a hurried manner without going the complete file. Averring on similar lines and referring to various judgments as pleaded in the appeal, the counsel prayed for dismissal of the complaint.
10. On the other hand, the respondents are ex-parte in this appeal.
First Appeal no.305 of 2018 10Consideration of Contentions
11. We have given our thoughtful consideration to the contentions raised by the learned counsel for the appellant and have also gone through the record of the case.
12. First of all, we would like to deal with the point whether report (Ex.OP-2/3) of Nitin Bakshi, Senior Engineer in Technical Service Department in Bridgestone India Private Limited is valid one or not, because OPs have strongly relied upon this report on basis of which OPs rejected the claim of the complainant. We have perused the report (Ex.OP-2/3) of Nitin Bakshi, Senior Engineer, in this report, he has failed to mention the date on which he inspected the said tyre. OPs further failed to prove on record his technical experience/certificates to show that he is an expert person in this field. Moreover, Nitin Bakshi is the employee of OP no.2 company and is not an independent witness. As such an inference can be drawn that the report could be prejudiced in favour of the OPs. The OPs also failed to produce on record any certificate/document with regard to quality of tyres, which were sold to complainant or any testing report before launching the said tyre in the market in support of their contentions. So in the circumstances of the case, we cannot completely rely on the report Ex.OP-2/3 prepared by Nitin Bakshi. The District Forum rightly held that when this report stands excluded, there remains no evidence from the side of the OPs to rebut the evidence of the complainant. First Appeal no.305 of 2018 11
13. Another objection of appellants/OPs in this case is that no adverse inference can be drawn against OPs for non- receipt of laboratory test report. The District Forum sent the tyres in question to Rubber Research Institute of India (Rubber Board), Kottayam (Kerala), but no report was received for a considerable time. We have already rejected the report Ex.OP- 2/3, as per discussion above. A consumer cannot be made to wait for a long period for redressal of his/her grievance, which causes harassment to them. The principle can also be applied to the complainant in the present complaint that he had to wait for receipt of test report of laboratory on the basis of which the present controversy could be determined. The onus is on the OPs to prove that at the time of launching the tyres in question, it was free from any defect, but in the instant case, OPs failed to prove the same, through cogent evidence, as discussed above. The District Forum rightly held that complainant has not examined any expert witness but when the tyres were got inspected from the engineer, complainant's version cannot be disbelieved only for this reason.
14. The next objection of counsel for appellant is that the District Forum decided the case in a hurried manner. It is pertinent to mention that the very purpose of the C.P. Act is to provide speedy disposal of the cases in a summary manner. We are of this view that the District Forum rightly decided the complaint without wasting the time in waiting the laboratory test First Appeal no.305 of 2018 12 report and have relied upon the evidence placed before it. As such this objection is rejected.
15. As a corollary of our above discussion, we find no merit in the appeal and the same is hereby dismissed and the order of the District Forum is upheld.
16. The appellant/ OP no.2 had deposited a sum of Rs.8650/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, be remitted by the registry to the District Forum forthwith. The complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
17. The appeal could not be decided with the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (KIRAN SIBAL) MEMBER January 13, 2020.
MM