State Consumer Disputes Redressal Commission
M/S Apollo Tyres Ltd. vs M/S Virk International Trading Company ... on 2 January, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 233 / 2011
M/s Apollo Tyres Ltd.
Head Office: Apollo House,
7 Institutional Area, Sector 32, Gurgaon
......Appellant / Opposite Party No. 3
Versus
1. M/s Virk International Trading Company
Through its partners
a. Sh. Kulwant Singh
b. Sh. Balveer Singh
c. Sh. Khem Singh
d. Sh. Manmohan Singh
All Sons of Sardar Arjun Singh
R/o Village Lalpul, Tehsil Kitcha District Udhamsingh Nagar
......Respondent No. 1/ Complainants
2. M/s Anand Automobiles
Through its Proprietor, opposite Telephone Exchange,
Rudrapur, District Udhamsingh Nagar
......Respondent No. 2 / Opposite Party Nos. 1 & 2
Mr. T.S. Bindra, Learned Counsel for the Appellant
None for the Respondent Nos. 1 & 2
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 02/01/2015
ORDER
(Per: Mr. D.K. Tyagi, Member):
This is an appeal under Section 15 of the Consumer Protection Act, 1986, filed by the appellant-opposite party No. 3 against the order dated 10.10.2011 passed by the District Forum, Udhamsingh Nagar in consumer complaint No. 85 of 2009. By the impugned order, the District Forum has allowed the consumer complaint and directed the opposite parties to pay the claim amount of tyre in question, Rs. 2,000/- as cost of tube, Rs. 1,500/-2
for litigation charges and Rs. 2,500/- towards damages to the complainants, within 15 days from the date of order.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainants are the partners and proprietors of M/s Virk International Trading Company and are real brothers. The complainants are the joint owners of JCB bearing registration No. UA06- E-9984. The complainants purchased two Apollo tyres size 16x28 @ Rs. 22,500/- per tyre and one tube size 16x28 for Rs. 2,000/- for their JCB from opposite party No. 1-M/s Anand Automobiles, Rudrapur, Udhamsingh Nagar on 20.11.2008 on the basis of attractive advertisement regarding quality and durability. They used the said JCB conveniently, uninterrupted and without any mechanical defect. But on 06.04.2009 one of the tyres, purchased from the opposite party No. 1, became defective due to breakage of wire, which was placed inside the tyre, resulting burst of tube for which the complainants informed the opposite party No. 1. The opposite party No. 1 took defective tyre and tube under claim and assured the complainants that he will replace the tyre and tube, but after so many reminders the opposite party No. 1 did not change the defective tyre and tube. Therefore, the complainants sent a legal notice to the opposite parties on 21.04.2009. Prima-facie there was a manufacturing defect in the tyre. On the basis of advertisement of Apollo tyres and assurance of the opposite party No. 1 that the life of tyres are 10 years or more and in case of any defect tyres will be replaced by the opposite parties, the complainants had purchased the tyres and tube for their JCB. The opposite parties even after finding the manufacturing defect at the spot neither replaced the defective tyre and tube nor returned the same, resulting loss of Rs. 3,000/- per day to the complainants. Therefore, there is deficiency in service on the part of opposite parties. The complainants are entitled to get Rs. 3,000/- per day since 06.04.2009 and cost of defective tyre Rs. 22,500/-, cost of tube Rs. 2,000/- and Rs. 5,000/- as litigation expenses from the opposite parties.
33. The opposite party Nos. 2 & 3-M/s Apollo Tyres Limited filed its written statement/objections before the District Forum, Udhamsingh Nagar and pleaded that as per the knowledge of the answering respondent alleged vehicle is being run for commercial purpose, with the help of a paid driver and helper. It is well settled law that a person using his vehicle for commercial purpose is not a "consumer" within the definition under the Consumer Protection Act, 1986. The consumer complaint is not maintainable as the complainants have not produced any evidence/report of any expert on record to prove that the tyres in question were suffering from any manufacturing defect. Technical service in-charge of the answering respondent did not find any defect in the alleged tyre. The complainants are filing the present consumer complaint with ulterior motive to extract undue benefit from the respondents devoid of any cause of action against the answering respondent. Answering respondent is not aware of the transaction between the complainants and opposite party No. 1. It is incorrect that the alleged tyre got damaged all of a sudden because of any manufacturing defect only after 5 months of fitment. It is denied that alleged tyre was used without any mechanical defect. The alleged tyre was accepted for technical inspection. It is incorrect that any manufacturing defect was seen prima facie in the tyre. It is also denied that any warranty for 10 years was given to the complainants as our Customer Friendly Policy stands only for manufacturing defects in our products. In case of manufacturing defect, we replace the tyres on Pro- Rata basis only. It is incorrect that any manufacturing defect was accepted in the alleged tyre. Alleged tyre submitted by the complainants was inspected by our technical expert and the cause of defect was find out as Broken Beed meaning thereby that alleged tyre was damaged due to improper mounting demounting by unskilled labour, usage of improper size, deformed rims and components, overload/improper inflation pressure. The complainants were well informed giving inspection report. Tyre being a rubber product may damage any time due to non- manufacturing reasons. This is not a manufacturing defect and reason 4 given in the rejection letter is correct. Alleged tyre was returned on the same day to the dealer. It is also denied that the complainants suffered any loss of business on account of answering respondent. The answering respondent is not deficient in service nor under any obligation to replace the tyre in view of no manufacturing defect in the tyre. The demand of the complainants for new tyre alongwith compensation is also incorrect and baseless.
4. The opposite party No. 1 has also filed written statement before the District Forum and admitted that the complainants had purchased two tyres and one tube on 20.11.2008 from the answering opposite party. It is denied that there was any manufacturing defect in the said product. M/s Apollo Tyres Ltd. assures to change the product on the basis of any manufacturing defect.
5. The District Forum on an appreciation of the material on record, allowed the consumer complaint vide order dated 10.10.2011. Aggrieved by the said order, the opposite party No. 3-appellant has filed the present appeal.
6. We have heard learned counsel for the appellant and have also gone through the record. None has appeared on behalf of the respondents for submissions.
7. There is no dispute with regard to the fact that the complainants- respondent No. 1 have purchased two Apollo tyres size 16x28 @ 22,500/- per tyre for Rs. 45,000/- and one tube size 16x28 for a sum of Rs. 2,000/- for their JCB bearing registration No. UA06-E-9984 from respondent No. 2-M/s Anand Automobiles. It is also not disputed that one defective tyre and tube of JCB were given to the respondent No. 2-opposite party No. 1, which were forwarded to the opposite party No. 2 on 07.04.2009 with Complaint Docket. Authorized person of the opposite party Nos. 2 & 3-appellant has rejected the claim of the complainants-respondent No. 1 on 5 09.04.2009 through award No. 1369900091 and returned the tyre and tube to the opposite party No. 1-respondent No. 2 M/s Anand Automobiles, Rudrapur, Udhamsingh Nagar.
8. Learned counsel for the appellant has submitted that the complainants had purchased the tyres and tube for their JCB, which was being used for commercial purpose in a partnership business. Therefore, the complainants are not a "consumer" within the provision of Section 2(d) of the Consumer Protection Act, 1986. Learned counsel also submitted that there was no manufacturing defect in the tyre, but instead the said damage was because of improper mounting and demounting by unskilled labour, usage of improper size, deformed rims and components, over load/improper inflation pressure. Therefore, there was no deficiency in service on the part of the appellant. The tyres were admittedly purchased for a JCB owned and run by a partnership firm comprising of several partners and it was also driven through a driver. Learned counsel also argued that the goods were not sent to an appropriate laboratory and expert for necessary analysis by the District Forum.
9. Learned counsel for the appellant has cited the following decisions:-
a) Revision Petition No. 2483 of 2007; M.L. Agarwal vs. Apollo Tyres Ltd., decided on 19.08.2011 by the Hon'ble National Commission.
b) Omprabha Malviya vs. Godrj Photo-Me Ltd. & Ors., I (2012) CPJ 14( NC)
(c) Nav Bharat Press vs. Sahara Prime City Ltd. & Ors., IV (2013) CPJ 227 (NC)
10. In the case of M.L. Agarwal vs. Apollo Tyres Ltd. (supra), the Hon'ble National Commission has held that the petitioner had purchased 12 Apollo tyres and according to him one of the tyres had burst and other tyres had manufacturing defects. The respondent-Apollo Tyres Limited had taken the plea that it was commercial transaction and the petitioner is 6 not a consumer. When a person buys 12 tyres in one go that itself show that the tyres are not purchased for one vehicle but for a number of vehicles. In such an eventuality the transaction, in question, will be a commercial transaction and the petitioner cannot be considered a 'consumer' within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. Hon'ble National Commission has also held in this case that no evidence was filed by the petitioner to establish that the tyres, in question, suffered from any manufacturing defects. Since the petitioner had failed to prove that the tyres had any manufacturing defects, the Fora below had very rightly dismissed the complaint and the appeal filed by the petitioner. With due respect to the Hon'ble National Commission, this citation is not applicable in the present case, as the respondent No. 1- complainants are the real brothers who have jointly purchased the tyres and tube for their JCB. There is no evidence on record that the complainants had more than one JCB for use of their livelihood. Therefore, the JCB used by the complainants-respondent No. 1 was not for commercial purpose. So far evidence regarding manufacturing defect in tyre and tube is concerned, it is evident from the impugned judgment and order passed by the District Forum that the complainants have already filed an affidavit of one Sh. Sardool Singh, who had 20 years' experience of repair of tyres and tubes of trucks, buses, cars and jeeps. Contrary to it, the appellant-opposite party No. 3 had not filed any expert report regarding the manufacturing defect in tyres. In the case of Omprabha Malviya vs. Godrej Photo-Me Ltd. & Ors., (supra) the Hon'ble National Commission has held that the complainant was housewife and had no knowledge about mechanical operation of photo-imager machine. She does not possess any technical skill so as to highlight manufacturing defects. She also failed to place on record any opinion of expert. The appellant-complainant failed to prove that the said machine suffered from any manufacturing defect. With due respect to the Hon'ble National Commission, this citation is also not applicable in the present case, as the respondent No. 1-complainants have already filed an affidavit of a person 7 having 20 years' experience in dealing with tyres and tubes of heavy vehicles. In the case of Nav Bharat Press vs. Sahara Prime City Ltd. & Ors. (supra), the Hon'ble National Commission has held that a partnership firm which is transacting business of printing and publication of newspapers, cannot be said to be consumer. Employees, representatives, correspondents would transact the commercial activity. Therefore, the complainant is not a consumer. But with due respect to the Hon'ble National Commission, in the present case the respondent No. 1- complainants are real brothers and a JCB is being used by them for their livelihood. The appellant has not filed any evidence that the respondent No. 1-complainants are doing commercial business by JCB. Therefore, purchasing tyres and tube by the respondent No. 1-complainants from the opposite party No. 1-M/s Anand Automobiles, dealer of the opposite party Nos. 2 & 3, is not a commercial transaction.
11. In the case of Tata Engineering & Locomotive Co. Ltd. & Ors. vs. Bachchi Ram Dangwal & Anr.; II (2009) CPJ 90 (NC), the National Commission has held that deficiency in warranty period services alleged in that case, if no reliable expert evidence produced in support of manufacturing, order allowing complaint set aside. Conduct of opposite parties not consumer-friendly. In the case of Classic Automobiles vs. Lila Nand Mishra & Anr.; I (2010) CPJ 235 (NC), it was held that the onus to prove manufacturing defect lies on complainant. No expert evidence produced to prove manufacturing defect in vehicle. Alleged defects cannot be termed as manufacturing defect. Vehicle repeatedly brought to service station for repairs, no ground to hold that vehicle suffering from manufacturing defects. Manufacturing defects in vehicle not proved. Order of lower Fora set aside. In the case of Sukhvinder Singh vs. Classic Automobile & Anr.; I (2013) CPJ 47 (NC), it was held that the service history only reveals that there was overheating once. No evidence that vehicle became defective again. Report of expert was essential or some other evidence showing manufacturing defect should have been adduced.
8Mere fact that vehicle was taken to service station for one or two times does not ipso facto prove manufacturing defect. These three above discussed citations are applicable in the instant case. The respondent No. 1-complainants have adduced the affidavit of Sh. Sardool Singh having experience of 20 years in dealing with tyres and tubes of trucks, buses, cars and jeeps, but the appellant has not adduced either any expert report or affidavit of any expert before the District Forum.
12. From the perusal of the record and submissions raised by the learned counsel for the appellant, it is evident that the respondent No. 1- complainants have purchased the tyres and tube for their JCB on 20.11.2008 under "Customer Friendly Claim Policy", as mentioned in the rejection letter of appellant-M/s Apollo Tyres Limited (Paper No. 23). One of the tyres became defective due to broken bead/wire resulting burst of tube. The respondent No. 1-complainants informed the dealer-opposite party No. 1-M/s Anand Automobiles about the defect in tyre as well as burst in tube on 06.04.2009 and handed over the defective tyre and tube to the dealer, who forwarded the said tyre and tube to the appellant. One Sh. Abdul Sattar rejected the claim of respondent No. 1-complainants showing broken bead in his technical finding and no manufacturing defect was found by him and cause of defect was "broken beed, which causes due to improper mounting demounting by unskilled labour, usage of improper size, deformed rims and components and over load/improper inflation pressure". Sh. Neeraj Agarwal, Technical Service In-charge in appellant company has adduced his affidavit in support of the above noted findings. He has not inspected the said tyre and tube and has not prepared any inspection report. The appellant has not filed any detailed inspection report or affidavit of Sh. Abdul Sattar, who was working earlier as technical service engineer in the appellant company. Learned counsel for the appellant did not apply before the District Forum under Section 13 of the Consumer Protection Act, 1986 for sending the goods to an appropriate laboratory for necessary analysis, test or expert report. Contrary to it, the 9 respondent No. 1-complainants have filed an affidavit of one Sh. Sardool Singh, who is an expert having experience of 20 years in dealing with tyres and tubes of heavy vehicles.
13. The District Forum has considered all the facts and circumstances of the case and has passed a reasoned order, which does not call for any interference. The appeal lacks merit and is liable to be dismissed.
14. For the reasons aforesaid, the appeal is dismissed. The impugned judgment and order dated 10.10.2011 passed by the District Forum, Udhamsingh Nagar in consumer complaint No. 85 of 2009 is hereby confirmed. No order as to costs.
(MRS. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.C. KANDPAL)