Sadananda Rai,

S/o Doomanna Rai,

Garodi House,

Punacha Post,

Bantwal Taluk, D.K. …….. COMPLAINANT



(Advocate: Sri.Sanjay.D)



VERSUS





1. Manager,

J.K.Tyres,

Panduranga Prasad Building,

Near Railway Gate,

Rosario Church,

Mangalore, D.K.



2. Manager,

Automotive Marketing Pvt. Ltd.,

1st Floor, Hassan Heritage,

Kankanady,

Mangalore, D.K. ……. OPPOSITE PARTIES


The Complainant submitted that he had purchased a Eicher Truck on 21.4.2008 from Opposite Party No.2 and 1st Opposite Party has supplied 4 brand new tyres and tubes to the above truck and it has 25000 km. of warranty.

It is submitted that the above four tyres of the Truck developed the problem of Air Packages after running only for 10569 km. Thereafter, the Complainant has approached the 2nd Opposite Party. The 2nd Opposite Party in turn sent to the four tyres to 1st Opposite Party. The 1st Opposite Party by way of rejection advise dated 25.6.2008 stated that the four tyres have failed due to Miscellaneous, External Injury/Accidental Damages/cuts, through cut at side wall and Worn threw piles/below TW1/Pattern smooth. The Complainant contended that the above four reasons cannot be the causes of the problem of Air Packages and submitted that four tyres supplied by the 1st Opposite Party has manufacturing defects.

The Complainant got issued registered notice dated 29.7.2008 but the Opposite Parties not complied the demand made therein and it is contended that the four tyres supplied by the Opposite Parties are defective which amounts to deficiency in service and hence the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to replace the four tyres or refund Rs.40,000/- i.e. the cost of the tyres and also pay Rs.30,000/- as compensation and cost of the proceedings.


2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed separate versions.

Opposite Party No.1 contended that, they have supplied four brand new tyres of size 8.25-20 14PRJTK along with tubes to the truck and also stated that after the complaint received from the Complainant the Opposite Party No.2 sent the tyres to Opposite Party No.1. It is submitted that, on a careful scrutiny on their technical service engineers inspected the tyres found that the cause of failure is not owing to any manufacturing defects the same was owing to through cut at side wall, external injury/accidental damages/cuts and the product having failed owing to miscellaneous further having worn out through plies PWI Pattern smooth. The Opposite Party No.1 contended that the same was brought to knowledge of the Complainant since there is no manufacturing defect Opposite Party No.1 is not liable to replace the tyres.

Opposite Party No.2 contended that there is no manufacturing defect, on receipt of the complaint of the Complainant they have sent the tyres to Opposite Party No.1 for investigation and Opposite Party No.1 during the process of investigation found that one of the tyre had some manufacturing defect and three tyres did not suffer from any manufacturing defect and taken the same contentions raised by the Opposite Party No.1 and prayed for dismissal of the complaint.

3. In view of the above said facts, the points now that arise for our consideration in this case are as under:


(i) Whether the Complainant proves that the tyres and tubes of the Eicher Truck purchased by him from 2nd Opposite Party proved to be defective?

(ii) Whether the Complainant proves that the Opposite Parties committed deficiency in service?


(iii) If so, whether the Complainant is entitled for the reliefs claimed?

(iv) What order?


4. In support of the Complaint, Sri Sadananda Rai (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on them. Ex C1 to C8 were marked for the Complainant as listed in the annexure. One Sri S.Muthry, Senior Service Engineer of Opposite Party No.1 (RW1) and one Sri.Janardhana Salian, Work Manager of Opposite Party No.2 (RW2) filed counter affidavits and answered the interrogatories served on him. Ex R1 to R8 were marked for the Complainant as listed in the annexure. Complainant submitted the notes of arguments and Opposite Party No.1 filed written notes of arguments and citations.

We have considered the oral/written arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:

Point No.(i): Negative.

Point No.(ii) to (iv): As per the final order.

REASONS

5. Points No. (i) to (iv):

The facts which are not in dispute are that, on 21.4.2008 the Complainant has purchased Eicher Truck from the 2nd Opposite Party and produced invoice dated 30.4.2008 issued by the Opposite Party i.e., Ex C1.

Now the point in dispute are that, the Complainant alleged that four tyres of the above truck developed problem of Air Package after running 10569 Kms. Only thereafter the Complainant approached 2nd Opposite Party and the 2nd Opposite Party inturn sent the tyres to 1st Opposite Party and the 1st Opposite Party issued a rejection advice dated 25.6.2008 which is not correct and it is contended that the four tyres have manufacturing defects.

On the contrary, the Opposite Parties contended that there is no manufacturing defects the technical personnel of the Opposite Party No.1 inspected the tyres in question and on a careful scrutiny by their service engineer one of the tyres and tube replaced on % prorata wear basis and three tyres and one tube were carefully inspected and found that the failure was not owing to manufacturing defect but they found that it is due to through cut at side wall, external injury/accidental damages/cuts and the product having failed owing to miscellaneous further having worn-out through plies PW1 Pattern smooth.

In the instant case, the Opposite Parties specifically disputed the manufacturing defect and issued three rejection advices dated 25.06.2008 pertaining to three tyres of the truck.

And it is undsiptued that the one of the tyre was replaced by the Opposite Parties by prorata wear basis. At the outset we constrained to observe that it is well settled position of law that where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods. In the case the entire burden lies upon the Complainant to prove before the Fora that the tyres supplied by the Opposite Parties to the truck suffers from defect. The Ex C1, C2, C3, C4, C5 and C6, on careful scrutiny of the above documents the Complainant approached the Opposite Party with a Complaint of Air Package in tyres and tube of the truck, the rejection advise issued in respect of the three tyres by the Opposite Party No.1 reveals that above tyre has no manufacturing defect but it has failed due to external injury/accidental damages/cuts and having failed owing to miscellaneous.

The rejection advice issued by the Opposite Party raised a contention that there are no manufacturing defect in the tyres. Under such circumstances, the entire burden lies upon the Complainant to refer the matter for analysis/get the independent expert report. Except the oral evidence, no expert opinion produced before the Fora in order to show the manufacturing defect. However, the documents produced by the Complainant do not show that the tyres of the truck having manufacturing defect. The Complainant ought to have taken steps to refer the defects to the expert in order to substantiate his grievances. No such attempt was made by the Complainant is fatal to his case and manufacturing defects alleged by the Complainant is not proved. Taking in view of the above discussions we are of the considered opinion that the Complainant has miserably failed to establish the case. Therefore, the complaint is deserves to be dismissed. No order as to cost.


6. In the result, we pass the following:


ORDER

The complaint is dismissed. No order as to cost.