DATE OF FILING : 30/05/17

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the 28th day of September  2018

Present :

SRI. S. GOPAKUMAR PRESIDENT

           SRI. BENNY. K. MEMBER

CC NO. 105/2017

Between

Complainant       : Vinod S.M.,

                                                                           Sooryankunnel House,

                                                                           Puthuppariyaram P.O.,

                                                                           Thodupuzha.

(By Adv: K.M.Sanu)

And

Opposite Party                                          :   1 . The Manager,

                                                                              Greenland Tyres,

                                                                              Pala Road, Chungam,

                                                                               Thodupuzha P.O.

                                                                         2 . The Manager,

                                                                               Bridge Stone,

                                                                               PSBN Building, Puthiya Road, 

                                                                               Erumpanam P.O.,  Kochi – 682 309.

(By Adv:  Fenil Jose)

 

O R D E R

SRI. S. GOPAKUMAR (PRESIDENT)

 

The case  of the complainant is that,  

 

Complainant purchased two tyres from the first opposite party, manufactured   by    the   second    opposite    party    by   paying   an amount of 

Rs. 6300/- for each tyre on 26/01/17.  While he using this tyre in his vehicle Bolero Pick-Up, one of the tyre's sidewall damaged within 4 months from its purchase.  At that time, the tyre was used for running only 4500 kms.  On noting this defect, the complainant intimated this matter to the first opposite party and entrusted the defective tyre to them and demanded for replacement with a new tyre.  For replacing the tyre, the first opposite  party entrusted it to the second opposite party.  But on examination the second opposite  party found that the damage to the tyre caused is not a manufacturing defect and the second opposite party denied its replacement.

                                                                                                                          (Cont.....2)

-2-

Complainant further averred that, at the time of purchase, the first opposite party assured warranty for one year and further averred its quality and durability.  But even though the damage noted in the tyre is a clear manufacturing the defect, the second opposite is failed to replace it  with a new one on some baseless grounds, and this act of the opposite parties  are gross deficiency in service and unfair trade practice.  Hence complainant filed this petition for directing the opposite parties to replace the tyre with a new one and also direct them to pay cost and compensation.

 

Upon notice the second opposite party entered appearance and filed detailed reply version.  Even though the first opposite party accepted the process from this Forum they failed to appear before this Forum and hence the first opposite party set ex parte.

 

In their written version the second opposite party contented that the first opposite party is not authorised to sell tyres manufactured by them, and the complainant purchased tyre from the first opposite party without proper Bridgestone warranty card.  Their warranty is given under certain conditions stipulated in the warranty  clause, one of the condition is no warranty is offered on tyres purchased from unauthorised sellers.

 

The second opposite party further contented that the service engineer of the second opposite party, received the complaint from M/s TNT Digital Wheels, the service engineer did the physical inspection of the tyre to ascertain the cause of damage.  On 22/05/17, the service engineer inspected this tyre, and after inspection it is reported that the tyre got sidewall damage due to excessive flexing of sidewall caused by over loading and under inflation.  It is the responsibility of the complainant to maintain adequate inflation pressure and maintain proper load as recommended by the vehicle manufacturer.    

 

The second opposite party further contented that, if the complainant alleges manufacturing defect, then it can be proved only by laboratory test considering that the complainant is not satisfied with these inspection.  Without such a test, the complainant not being a technical expert cannot reach to a conclusion about the manufacturing defect in the tyre.   Manufacturing defect is fundamental basic  defect,  which creeps while manufacturing  and to

                                                                                                                          (Cont.....3)

-3-

prove such a defect, opinion of an expert is necessary.  Further contented that the complainant's claim was timely handled and that the claim was solely decided on merits.  Hence no deficiency in service or unfair trade practice cannot be alleged against the second opposite party.

 

The evidence adduced by the complainant by way of proof affidavit and documents.  Complainant was examined as PW1 and Ext.P1 and Ext.P2 were marked.  Ext.P1 is the retail invoice of the first opposite party dated 25/01/17, Ext.P2 is the claim application form and claim advice letter dated 22/05/17.

 

On the part of the opposite parties, the second opposite party produced some documents which were marked as Ext.R1 to ExtR3.  Ext.R1 is the Bridgestone advisory notice to for customer, Ext.R2 is the warranty policy condition, Ext.R3 is the same copy of Ext.P2.

 

Heard both sides,

 

The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties, and if so, for what relief the complainant is entitled to ?

 

The Point:- We have heard the counsels for both the parties and gone through the evidence on record.  On perusing the Ext.P1, Forum convinced that the complainant purchased 2 tyres, from the first opposite party on 25/01/17 by paying an amount of Rs.12,600/-.  Immediately after its purchase, the complainant noted defect in one of the tyre and entrusted it to the first opposite party  and demanded its replace to a new one.  As per the version of the second opposite party, they received this defective tyre of the complainant from M/s TNT Digital Wheels and on inspection of the service engineers of the second opposite party, it is found that the damage caused to the sidewall of the tyre due to over loading and under inflation and the second opposite party rejected the claim of the complainant after explained the reason for rejection through telephones.

 

In their written version opposite parties categorically submitted that the first  opposite party is not an authorised agent of the second opposite party, and  the  second opposite party is not allowing the practice to sell tyre through

                                                                                                                           (Cont.....4)

-4-

unauthorised sources.  The second opposite party further contented that the complainant is well aware that, while purchasing product proper warranty card of the product should be taken from the sellers.  In this present case, as per the deposition of the complainant, the first opposite party issued retail invoice only at the time of purchase of the tyre.  From the evidence on record and the contention in the reply version the second opposite party, it is very clear that the first opposite party is not an authorised agent of the second opposite party, that is why the first opposite party is failed to issue the warranty card of the product along with the retail invoice.  This aspect is further made clear that, the first  opposite party handed over the defective tyre in question to one TNT Digital Wheels and from their  TNT Digital Wheels, the second opposite party collected the damaged tyre for inspection.

 

At this juncture it s very pertinent to go through the contention of the second opposite party, regarding the terms and conditions of the warranty, that they provided in their product.  Para 3 of the written version pointed out that, as per clause No.18 of warranty policy, ”Bridgestone India” do not offer warranty on claim of any one of the following categories (j) Tyre purchased from unauthorised sellers.

 

Here it is an admitted fact that, the first opposite party is an unauthorised seller of the second opposite party, or a sub-agent of TNT Digital Tyre.  To counter this point the first opposite party has not adduced any evidence.  Since the main allegation is against the first opposite party.  Here it is the bounden  duty of the first opposite party is to establish that, they are the authorised agent of the second opposite party with clear and cogent evidence.

 

Another reason pointed out by the second opposite party, in their version is that, onces to prove that there is a manufacture defect in the tyre was on the complaint, which he failed to discharge by leading cogent evidence.  The petitioner did not produce any expert evidence either to show the nature or defect or proof of manufacturing defect.  The petitioner has failed to prove that the tyre he purchased suffered from any manufacturing defect as laid down by the Honourable National Consumer Disputes Redressal Commission in Revision Petition No.3845/2006, Suresh Chand Jain Vs Service Engineer and Sales Supervisor, MRF Ltd.

 

                                                                                                                          (Cont.....5)

-5-

 

On appreciating the evidence adduced by both sides, Forum convinced that the version of the second opposite party is factually and legally sustainable, and nothing is brought out by the complainant or the first opposite party to against their version.  Here it is very clear that, the second opposite party is having no role in this dealing, and the first opposite party who sold the product of the second opposite party, without their consent, or knowledge to the complainant on the pretext that the first opposite party is the authorised dealer of the second opposite party.  More over the first opposite party has not raised any objection to averments of the complainant on the contention of the second opposite party.

 

Hence on the basis of above discussion, Forum is of a considered view that the first opposite party alone is liable to compensate the complainant.  Hence complaint allowed, the first opposite party is directed to pay Rs.5000/- as compensation and Rs.2000/- as litigation cost to the complainant within 30 days from the date of receipt of the copy of this order, failing which the compensation amount shall carry 12% interest per annum from the date of default  till the realization. 

 

Pronounced in the Open Forum on this the 28th day of September, 2018.

 

                                                                                                     Sd/-

                                                                                      SRI. S. GOPAKUMAR (PRESIDENT)

                                                                                                            Sd/-                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

             SRI. BENNY. K.  (MEMBER)

 

 

 

 

 

 

 

 

 

 

 

 

                                                                                                                        (Cont.....6)

-6-

 

APPENDIX

 

Depositions :

On the side of the Complainant :

PW1               - Vinod S.M.

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1          -  The retail invoice of the first opposite party dated 25/01/17

Ext.P2          - The claim application form and claim advice letter dated 22/05/17.

On the side of the Opposite Party :

Ext.R1  - The Bridgestone advisory notice to for customer

Ext.R2  - The warranty policy condition

Ext.R3  - The same copy of Ext.P2

 

 

            Forwarded by Order,

 

 

                  SENIOR SUPERINTENDENT