(Delivered on 10/01/2022)

PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL MEMBER.

1.         Appellant- Mr. Ketan Bhupendra Dave has preferred the present appeal feeling aggrieved by the order dated 26/02/2019 passed by the learned Additional District Consumer Commission, Nagpur in Consumer Complaint No. RBT/CC/18/333(old No.CC/735/2016) by which the complaint filed by the present  appellant  came to be dismissed.  (Appellant shall hereinafter be referred as  complainant  and respondents  as O.Ps. for the sake of convenience  )

2.         Short facts leading to filing of the present appeal may be narrated as under,

            Appellant /Complainant –Mr. Ketan Bhupendra Dave has claimed that  he was resident  of Vardhaman Nagar, Nagpur. Respondent No. 1 /O.P. No. 1- J.K. Tyre and Industries  is engaged in manufacturing  of the car tyres and other  allied products and the Respondent No. 2/O.P. No. 2 is the regional  office of the O.P. No. 1. Respondent No. 3/O.P. No. 3- M.H.K.S. Mohamed Ali is the retailer and authorized distributor to sell the products namely tyres for O.P. Nos. 1&2. Complainant – Mr. Ketan Dave purchased  four tyres  for his car  of the  Make No. 205/60 R16 J.K. Vectra Tubeless Tyre vide bill  dated 17/07/2014 from the Telephone Exchange shop  of the O.P.No. 3 for a valuable consideration of Rs. 23,200/-. At the time of purchasing of tyres the complainant was assured of the quality and durability but the  tyres were  of the year 2012 and were  kept  in the godown from 2012 to 2014 till  the date of purchase.  The O.P.No. 3 had given  assurance  that  though  the tyre was  manufactured  in the year 2012 it will  not affect their durability  and quality. After purchase of the tyre the car of the complainant   travelled about 2000 Kilometers on a Tar Road  in the city. In the month of April-2016 the  Appellant/complainant  noted that  on the upper side of the tyre  there  was  swelling and the tyre  developed  tear on the swelling.  Complainant   immediately  without wasting any time  reached  the office of the respondent No. 3/O.P. No. 3 and  handed over  the tyres to respondent No. 3/O.P.No. 3. The respondent No. 3/O.P. No. 3 kept the tyres to be sent  to the respondent Nos. 1&2/O.P. Nos. 1&2 for replacement  and so appellant /complainant  purchased new  tyres and handed over the old tyres to the O.P. No. 3.  The O.P.No. 3 then sent  the tyres for replacement  to   the O.P.Nos. 1&2 who were manufacturers but  the O.P. Nos. 1&2 refused to  replace  the said tyres without any justifiable  reason  by giving  a  false reason that  the tyres were damaged  due to  “Rim Digging/Rim Damage” but the reason given  was false.  The complainant  has therefore  alleged that  the O.P. Nos. 1&3 had committed  an unfair trade practice  and also there was  deficiency  in service  on the part of the  O.P. Nos. 1 to 3 for selling  sub standard product. The complainant then  issued a notice to the O.P. Nos. 1 to 3 on 19/09/2016 asking  for replacement  of tyre but the O.P. Nos. 1 to 3 failed to replace the tyre  and so  the complainant  was compelled  to file the instant  complaint  under  section 12 of the Consumer Protection Act, 1986.

3.         O.P. Nos. 1 and 2 appeared and filed written version on record denying all the allegations made in the complaint.   The O.P. Nos. 1&2 have admitted that the complainant had purchased tyres from the O.P. No.3 for consideration of Rs. 23,200/-. The O.P.Nos. 1&2 have also  admitted  that the  tyres were  manufactured in the year 2012 and were kept  in the godown  till the year 2014 but has denied  that the quality and durability was affected as alleged by the  complainant.  O.P.Nos. 1&2 have taken a plea that  in order  to  avail the benefits of the warranty  several measures   are required  to be taken  by the complainant  for  maintaining  the quality  of tyres like  inflation  pressure, load, wheel alignment and tyre rotation, etc.  The O.P.Nos. 1 and 2 have also  taken a plea that  the present  complaint  is not maintainable  as  complainant has not produced  any report  of Expert on record so as to  show that  the tyres purchased  by the complainant  were  suffering from any manufacturing  defects. The O.P.Nos. 1&2 have also taken a plea that the tyres purchased from O.P.No. 3 were also likely to be damaged due to negligence by the  driver  of the complainant.  For the forgoing reasons the O.P.Nos. 1&2 have contended that the complaint deserves to be  dismissed  with cost.

 4.        The complainant thereafter filed his evidence affidavit along with documents on record. The O.Ps. also placed  reliance  upon  the evidence affidavit  and documents. The  learned   Additional District Consumer Commission, Nagpur  then  went through the contents  of the evidence affidavit  as well documents  filed by both the  complainant  and O.Ps. on record.  The learned Additional District Consumer Commission, Nagpur also went through the written notes of argument filed by both the parties.  After  appreciating  the oral  and documentary  evidence  adduced on record  the learned  Additional District Consumer Commission, Nagpur has reached  the conclusion  that  though  the complainant  had filed  the Consumer Complaint alleging  defects in the tyres but no report  of expert was filed  on record to support  their contentions.  The learned Additional District Consumer Commission, Nagpur also gave afinding that the O.P.Nos. 1 to 3 had  not  indulged  in unfair trade practice  or deficiency  in service  and  so the learned  Additional District Consumer Commission, Nagpur dismissed  the complaint by judgment and order dated  26/02/2019. Against this judgment and order dated 26/02/2019 passed by the learned Additional District Consumer Commission, Nagpur   the present appellant /complainant – Ketan Dave has come up in appeal.

5.         We have heard appellant - Mr. Ketan Dave in person as well as Mr. Samdekar, learned advocate for the respondent Nos. 1&2.We have also gone through the record of the learned Additional District Consumer Commission, Nagpur, copies of which are placed on record. On the basis of the facts stated above the only point which arises for our determination is as under with our finding recorded thereon and reasons to follow:

Reasons for findings

6.         There is no serious dispute  that the appellant –Ketan Dave had purchased  four tubeless tyres  vide  bill dated 17/07/2014 for his car of the Make No. 205/60 R16 J.K. Vectra from the shop of the  respondent No. 3/O.P. No. 3 who are  retailer. There is also no dispute that the respondent Nos. 1&2/O.P.Nos. 1&2 namely J.K. Tyre and Industries Ltd. were the manufacturers of the said tyres. There is also no serious dispute   that  the four tyres  of the  complainant  had come to be damaged but  the respondent Nos. 1&2/O.P.Nos. 1&2 declined to replace the said tyres as per warranty.

7.         At the outset  the appellant  has contended  before  us that the  learned Additional District Consumer Commission, Nagpur  has not  appreciated  the documents  as well as law in proper  perspective  and has given  finings  which  were  erroneous  in nature. According to the appellant  the learned Additional District Consumer Commission, Nagpur has not appreciated the fact that though the report was filed by the respondent Nos. 1&2/O.P.Nos. 1&2  but the said  expert  report  was accepted  without  examining  the Rim. At this stage it is necessary to point out that after the four tyres were returned to the respondent No. 3/O.P.No. 3 retailer the same were sent by the respondent No. 3/O.P.No.3 to the service engineer of the respondent Nos. 1&2/O.P.Nos. 1&2 and the service engineer had given a report copy of which is placed on record. In this report it is mentioned that the damage to the tyres had taken place due to “ Rim Digging/Rim Damage”. Entire controversy in the present appeal revolves around this Report copy of which  is  on record. Appellant/ complainant  has taken  a  specific plea before us that  this Expert  Report submitted  on record  was not only false and bogus but could not be  taken into consideration  per se  as  the tyres  purchased  by the present  appellant  were not  having any rim but contained  alloy wheels and same were not at all examined.  The appellant  has  vehemently  argued  before us that  the  respondents  had given  specific assurance  regarding  durability  and quality  of the tyres purchased from them. Further, the report given  by the Expert  who was the service engineer  cannot be accepted  for  the simple reason  that the car owned by the appellant  does not have any Rim but has a Mack Wheel and  it was not  inspected  by the Engineer  at all.  The appellant has further argued that there was no defect or damage to the Rim or alloy wheel at all.

8.         Mr. Samdekar, learned advocate for the respondents have strongly rebutted this contention  and has submitted that  after  the tyres were returned  they were duly  examined  by the service engineer  of the respondent Nos. 1&2/O.P.Nos. 1&2 and report was also filed on record.  Secondly,  it is submitted  that  the appellant /complainant  who was a Consumer  alleges manufacturing  defect in the product and  that  burden  lies  upon  the appellant/ complainant  to establish  the  said manufacturing  defect  by placing  on record an expert  report  to that effect.  Mr. Samdekar, learned advocate for the respondent Nos. 1&2 has argued that in the present case the present appellant had made mere allegations regarding manufacturing defect in the four tyres sold by the respondent No. 3/O.P.No. 3 but the same are not supported by any Expert Report.  Mr. Samdekar, learned advocate for the respondent No. 1&2 has further  argued  that  the appellant  had not taken  necessary and  proper care  of the tyres  as per conditions  in  the warranty and so the appellant  was not  entitled  for warranty.  According to the respondent Nos. 1&2/O.P.Nos. 1&2 tyres were received   by the respondent No. 2/O.P.No. 2 from respondent No. 3/O.P.No. 3 on 31/05/2016 and after examination on 31/05/2016  the service engineer submitted the report .

9.         Now, in order  to support his contentions  Mr. Samdekar, learned advocate  has heavily  relied upon one judgment  delivered  by the Hon’ble National Commission in the case of Classic Automobiles  Vs. Lila Nand Mishra & others, reported  in I(2010) CPJ 235 (NC). In this judgment  the Hon’ble  National Commission was  dealing with   similar facts relating  to manufacturing  defects  alleged by the Consumer  and it was observed  that  in order to allege manufacturing defects the report  of expert  or some other  evidence  on manufacturing  defect  was essential.  Similarly  he has also  relied upon  another  judgment  in the case of The Manager, Tata Engineering  Vs. Bachchi Ram Dangwal, reported in II(2009) CPJ 90 (NC) and case of Sukhvinder Singh Vs. Classic Automobile & another, reported  in I(2013) CPJ 47 (NC). We have gone through both these judgments.  In both these judgments it has been observed that in order to allege manufacturing defects report of an expert was necessary to be filed by the complainant.  Herein the present case we find that the respondent Nos. 1&2/O.P.Nos. 1&2 has filed report of expert stating  that  there was  damage  to the tyre due to  Rim Digging/Rim Damage. The appellant  has taken a plea that  there was no rim to his tyre and there was  mack wheel but we feel that  mere submissions or averments  of the appellant/complainant  is not  sufficient  and it was necessary  for th  appellant /complainant to  rebut the  evidence  of the service engineer by proper report of expert  so as to  allege  the deficiency in service on the part of the respondents/O.Ps. regarding manufacturing  defects. Here  the appellant  has not placed  on record or  come  forward with  any such  evidence  and so in the light of observations  made by the  Hon’ble National Commission in the aforesaid  cited judgments,  the contentions of the  appellant  that  the learned Additional District Consumer Commission, Nagpur has given  erroneous  findings or that   it had not considered  the report  of Expert  in proper  perspective  cannot be  accepted.  We therefore, do not find any infirmity or error in the findings given by the learned Additional District Consumer Commission, Nagpur and so we hold that the appeal is devoid of any substance. Accordingly, we answer to the Point No. 1 in the negative and by way of sequel we proceed to pass the following order. 

ORDER

i.          Appeal is hereby dismissed.

ii.          No order as to costs.

iii.         Copy of order be furnished  to both the parties,  free of cost.