Haryana

Karnal

CC/337/2020

Naresh Kumar - Complainant(s)

Versus

Apollo Tyres Limited - Opp.Party(s)

Balwan Singh Dhaunchak

23 Jan 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 337 of 2020

                                                        Date of instt.02.09.2020

                                                        Date of Decision:23.01.2023

 

Naresh Kumar son of Shri Jeeta Ram, resident of VPO Barsat, Ward no.6, near Bus Stand, Tehsil Gharaunda, District Karnal.

 

                                               …….Complainant.

                                              Versus

 

Apollo Tyres Ltd. Regional Headquarter, 7 Institutional Area, Sector-32, Gurgaon-122001 through its Managing Director.

 

                                                                      …..Opposite Party.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Balwan Singh, counsel for the complainant.

                    Shri Vineet Rathore, counsel for the OP.

 

                    (Jaswant Singh President)

ORDER:   

                

                  The complainant has filed the present complaint under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant purchased a vehicle Mahindra Blazo-4923 Truck bearing registration no.HR-45C-4045 on 28.02.2014 fitted with Tyres of make Apollo Tyres Ltd. On 15.04.2018 at about 12.30 a.m. near Indian Petrol Pump, beside Geeta Colony, towards Ladwa while proceeding from Karnal to Yamuna Nagar, one of the tyres Apollo make Sr. no.C2225404717 burst while the vehicle was on road the tyre fitted on front right side due to bursting resulted into unbalancing of the vehicle and colluding with another vehicle no.HR-55K-5490 as a consequence of which the vehicle got damages to the tune of Rs.7,52,596/- (amount received from insurance company Rs.3,91,046/- which further resulted into loss of Rs.35,43,500/- due to lying off of the vehicle (going off the road) for repairs. A general diary sr. no.011 dated 15.04.2018 was registered with Police Station Ladwa resulting into estimated loss of Rs.7,52,596/- which further resulted into lying of the vehicle for carrying out repairs and replacements and in this way the vehicle remained off the road until January, 2019. The vehicle did not earn any exchequer for the complainant, for paying installments of vehicle rather additional expenses were made in the shape of payment of salary to driver, cleaner/co-driver, parking expenses, wear and tear etc. It is further pleaded that the vehicle when it was being used for business it was plying between Panipat refinery to Ropar and Ropar to Gaziabad carrying Coal (A crude oil bi-product) dust and clinker charging thereby the freight of Rs.26,000/- +31200/- of both sides totaling to Rs.57200/- in every two days. The details of trip are as under:-

Freight of both sides                          = 57,200/-

Less Diesel expiry for both sides          = 20,000/-

Less Daily Travelling expenses   

5000/- of driver, cleaner, toll tax,        =  5,000/-

refreshment etc.

Balance                                             =32,200/-

Total Earning for 30 days

(32200x15)                                       =4,83,000/-

Less loan installments                        =  70,000/-

Less salary to driver and cleaner         =   20,000/-

Less other miscellaneous exp.             =   20,000/-

Net earnings for a month                    =3,73,000/-

 

Then complainant sent a legal notice dated 14.08.2019 to the OP to get settle the claim but OP did not pay any heed to the genuine request of complainant. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability. On merits, it is pleaded that Section 38(2)(c) of the Consumer Protection Act, 2019 contemplate that where the complaint alleges a defect in the goods, the District Commission shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory alongwith a direction that such laboratory make an analysis or test to find out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect. It is further pleaded that complainant has neither produced report of any laboratory recognized by the Central Government or Recognized by a State Government or laboratory or organization established by or under any law. It is further pleaded that complainant failed to show by leading any evidence whatsoever to prove any “manufacturing defect” in the tyre. It is further pleaded that complainant is not consumer under section 2(7)(i) of Consumer Protection Act, 2019 as the tyres were used for commercial purpose. It is further pleaded that as per warranty policy of the company replacement on pro-rata basis is give only in case of any manufacturing defect and manufacturing defects are only traceable only after expert inspection. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of legal notice dated 14.08.2019 Ex.C1, copy of postal receipt Ex.C2, copy of reply of legal notice Ex.C3, copy of replacement of front tyre dated 04.08.2018 Ex.C4, copy of DDR no.11 dated 15.04.2018 Ex.C5, copy of photographs of inspection and technical report of Mahesh Kalra dated 10.01.2019 Ex.C6 and closed the evidence on 31.05.2022 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Anil Kumar Singla Service Engineer Ex.OP1/A and closed the evidence on 03.10.2022 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant purchased a vehicle Mahindra Blazo-4923 Truck fitted with Tyres of make Apollo Tyres Ltd. On 15.04.2018, at about 12.30 a.m. one of the tyres Apollo make Sr. no.C2225404717 burst while the vehicle was on road. Due to bursting of the tyre vehicle become imbalance and colluded with another vehicle as a consequence of which the vehicle got damaged. A general diary no.011 dated 15.04.2018 was registered with Police Station Ladwa. Due to damage of the vehicle complainant has suffered a great loss. The vehicle did not earn an exchequer for the complainant, for payment the installment of the vehicle and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that Section 38(2)(c) of the Consumer Protection Act, 2019 contemplate that where the complaint alleges a defect in the goods or suffer from any other defect. Complainant has neither produced report of any laboratory recognized by the Central Government or Recognized by a State Government or laboratory or organization established by or under any law. Complainant failed to show by leading any evidence whatsoever to prove any “manufacturing defect” in the tyre. He further argued that complainant is not consumer under section 2(7)(i) of Consumer Protection Act, 2019 as the tyres were used for commercial purpose. He further argued that as per warranty policy of the company replacement on pro-rata basis is give only in case of any manufacturing defect and manufacturing defects are only traceable only after expert inspection. Learned counsel for the OP relied upon the case laws titled as Apollo Tyres Ltd. Vs. P Ayyavar Reddy and Anr. in Revision Petition no.4013 of 2007, decided on 19.04.2012 and M.L. Aggarwal Vs. Apollo Tyres Ltd. in Revision Petition no.2483 of 2007, decided on 19.08.2011 and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, complainant has purchased Mahindra Blazo-4923 Truck bearing registration no.HR-45-C-4045 on 28.02.2017 fitted with tyres of make Apollo tyres Ltd. i.e. OP.

11.           On 15.04.2018 at about 12.30 a.m. one of the tyres Apollo make sr. no.C2225404717 burst while the vehicle was on road and due to bursting resulted into imbalance of the vehicle and colluded with another vehicle. As a consequence of which complainant vehicle got damaged.

12.           As per version of the complainant, the tyre in question was having manufacturing defect due to accident took place. To prove his version, complainant has relied upon the report Ex.C6 dated 10.01.2019 prepared by Mahesh Kalra, Automobiles Engineer, Surveyor and Loss Assessor. In the said report, the surveyor has opined that accident took place due to bursting of tyre on account of manufacturing defect.

13.           The OP has failed to rebut the said evidence produced by the complainant by leading any cogent and convincing evidence. OP has taken a plea that complainant failed to produce alleged burst tyre before the OP to ascertain the manufacturing defect, after repeated requests but OP has not placed on file any letter/notice/email to prove that OP has asked the complainant to produce the burst tyre. Hence plea taken by the OP has no force. Rather, complainant has already placed on file, Technical Examination Report Ex.C6 wherein technical expert has clearly opined that bursting in tyre has occurred due to manufacturing defect. It has been proved from this report that tyre was having manufacturing defect and tyre in question got burst during warranty period. Hence, the act of the OP amounts to deficiency in service and unfair trade practice while denying the claim of the complainant.

14.           The case laws cited by the OP are not applicable to the facts of the present case.

15.           Complainant has sought a compensation of Rs.39,05,050/-, which is in very higher side and unjustified. Hence, we are of the opinion that complainant is entitled to replace/refund the cost of the burst tyre alongwith compensation on account of mental harassment and litigation expenses.

16.           Thus, as a sequel to abovesaid discussion, we partly allow the present complaint and direct the OP to refund the cost of the tyre in question. We further direct the OP to pay Rs.20,000/- to the complainant on account of mental agony and harassment and Rs.5500/- towards the litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:23.01.2023

                                                                       

                                                        President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

 

 

                (Vineet Kaushik)        (Dr. Rekha Chaudhary)      

                      Member                        Member

 

 

Sushma

Stenographer