Before the District Consumer Disputes Redressal Forum, Mandi, H.P.



Complaint Case No.132/2008

Date of Institution 30-5-2008

Date of Decision 23-3-2009



Balam Ram son of Sh.Netar Singh age 57 year Village Laka Post Office and Tehsil Sarkaghat, District Mandi, H.P.

…Complainant

V/S



Aman Tyres through its Proprietor NH-21 Bhangrotu, Ner Chowk, District Mandi, H.P



…..Opposite party



For the complainant Sh. Videsh Kumar Palsara, Advocate

For the opposite party Sh.Amar Singh Thakur ,Advocate



Complaint under Section 12 of the

Consumer Protection Act, 1986.

ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he is “B” class Govt. contractor and deals in construction work of buildings and roads etc.. The complainant is in possession of tractor bearing No. HP-28 B-4900 and the owner of the tractor is Smt. Bisan Devi his wife . The complainant is using the tractor for his works at different places. The complainant is at present working as PWD contactor on Cholthra- kothi road under Pradhan Mantri Gramin Sadak Yojna ( PMGSY). On 1-3-2008 the opposite party visited Sarkaghat for the collection of tyres for retreading and the opposite party collected the vehicle tyre of MRF make Size 13-6-28 bearing No.20070966469 of the complainant from the shop of Sh.Hardev Singh son of Sh. Khalifa Ram of Sarkaghat who at present is the owner of the shop near Paul service station Barchawar Post Office Surajpur Bari, Tehsil Sarkaghat and he is working as tyre man in the shop of the complainant .. The complainant had left the tyres in the aforesaid tyre shop and vide receipt No.073 dated 1-3-2008 in presence of Sh. Ashok Kumar Puri given the tyre to the opposite party The opposite party had assured the complainant for the delivery of the tyre in question within seven days from the receipt of tyre but the same was not returned till March 2008. The complainant and one Sh.Ashok Kumar Puri contacted the opposite party telephonically but the opposite party lingered on the matter . The complainant visited the office cum shop of the opposite party number of times and requested to deliver the tyre as the vehicle was standing idle in the absence of tyre . It has been alleged that the non return of the tyre is deficiency in service on the part of the opposite party . The complainant is not able to ply the tractor and suffered loss of Rs.1000/- per day as he has to hire another tractor of Sh.Vinod Kumar . With these allegations, the complainant had sought direction to the opposite party to deliver the tyre in question after retreading the same as early as possible , to pay Rs.70,000/- as compensation on account of damages and Rs.50,000/- on account of mental pain and agony etc apart from costs of litigation.

2. The opposite party resisted the complaint by filing reply. The opposite party has raised preliminary objection that the present complaint is not maintainable before this Forum and that there is commercial transaction between the parties that the complainant is not a consumer of the opposite party and the complainant has no locus standi to file the complaint. On merits the opposite party admitted that the opposite party had collected the tyre for retreading from Sarkaghat but rest of the allegations of para no.4 and 5 of the complaint have been denied . It has been pleaded that the opposite party collected the tyre for retreading on preliminary inspection and told the complainant that tyre in question will be retreaded subject to final mechanical inspection and on final mechanical inspection the same was found not retreadable Thereafter the opposite party sent the tyre in question to the complainant 2/3 times and told about the condition of the tyre but the complainant refused to accept the same and at present is lying with it. The opposite party had denied the contents of para No.6 to 9 of the complaint being wrong . The opposite party had prayed for dismissal of the complaint .

3. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.

4. We have heard the ld. counsel for the parties and have carefully gone through the record. It is admitted by the opposite party in its reply that one tyre of the complainant was collected for the purpose of retreading. But the case of the opposite party is that the complainant was told that the tyre in question will be retreaded subject to final mechanical inspection of the tyre and on its final mechanical inspection , it was found that that the tyre is not treadable. However, the complainant has denied that the tyre which was handed over to the opposite party was not treadable . Therefore, it was incumbent upon the complainant to prove and establish by placing on record documentary evidence in the shape of mechanical report regarding the fact that the tyre in question was retread able . In the absence of any expert opinion in this respect, no direction can be issued to the opposite party to retread the tyre in question. The complainant had further alleged that due to non-return of the tyre , the work of the complainant suffered as he could not ply the tractor and suffered a loss of Rs..1000/- per day as he had to hire another tractor of Sh. Vinod Kumar. The complainant has also placed on record the affidavit of Sh. Vinod Kumar and the receipts dated 3-4-2008,4-5-2008, 28-5-2008, given by aforesaid Sh.Vinod Kumar. In the affidavit filed by Sh.Vinod Kumar , he deposed that his tractor was hired by the complainant. However, there is no evidence on record to suggest that since one tyre of the tractor of the complainant was lying with the opposite party, he had to hire the tractor of aforesaid Sh.Vinod Kumar. It is beyond imagination that just for the non delivery of one tyre , the tractor of the complainant would remain idle for such a long period and the complainant had suffered a loss of Rs.1000/- per day. Nothing prevented the complainant from fitting another tyre in the tractor so as to avoid the alleged loss. Moreover , there is no evidence on record that the complainant was earning Rs.1,000/- per day from the tractor in question. However , the fact remains that the tyre was collected by the opposite party on 1-3-2008 and thereafter it is lying with it as admitted by the opposite party in its reply. Though the opposite party had stated that the tyre in question was sent to the complainant 2/3 times , but the complainant had refused to take the delivery of the same . However, there is no material on record to establish that the opposite party had sent tyre in question to the complainant or sent any intimation to the complainant to collect the tyre from it. No letter of intimation has been placed on record by the opposite party. The bald assertion of the opposite party cannot be treated as gospel truth that the complainant refused to accept the tyre when delivery was offered to him. Therefore , in such a situation the non returning of the tyre to the complainant by the opposite party from 1-3-2008 till date amounts to deficiency in service for which the complainant has suffered mental agony and tension. Therefore , it would in the interest of justice , if we award a sum of Rs.1500/- on account of compensation.

5 In view of above discussion, the complaint is partly allowed and the opposite party is directed to hand over the tyre in question to the complainant within 15 days from the receipt of this order and also to pay Rs.1500/- on account of harassment and a sum of Rs.1,000/- as costs of litigation. 6 Copy of this order be supplied to the parties free of cost as per Rules.

7 File, after due completion be consigned to the Record Room.

Announced (Sushil Kukreja) President