SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint seeking to get an order directing opposite parties to pay Rs.21,000/- towards the value of damaged tires or to replace the damaged tires with new one and to pay Rs.1,00,000/- towards compensation for the mental agony, damages and sufferings suffered by complainant and also to pay cost of the proceedings of this case to the complainant.
The allegations made in the complaint, briefly stated are that the complainant purchased a Mahindra Thar D1 vehicle from the OP by paying an amount of Rs.5,74,819/- in the month of January2014. At the time of purchasing the vehicle OP assured that vehicle is having warranty and offered free service also. OP offered and guaranteed that tyres of the vehicle will be best for 35,000 KM. journey and they under take to replace the tyres if any damages happened during that period. But on the contrary of assurance made by the OP No.1 all the four tires of vehicle become damaged before completing 9000KM. Thereafter several times complainant approached the OP to replace the tires. They evaded him by saying one or another reason. Thereafter 21/08/2014 complainant issued a lawyer notice to the OP No.1 and required to replace the tires or to pay Rs.21,000/- the amount which was spent by this complainant for purchasing the new tires. But, the OP neither ready to repay the amount nor replaced the tires. On 28/10/2014, OP No.1 sent a false and fabricated reply. The act of the OPs is deficiency in service and unfair trade practice defined under Consumer Protection Act. Hence this complaint.
After receiving notices OPs 1 and 2 appeared before the commission through their counsels and filed reply denying the allegations of the complainant, pleading by OP No.1 that this OP admits the purchase of Mahindra Thar D1 vehicle bearing chassis No. EIA 10230 by the complainant from OP on 24/01/2014. The 1st and 2nd free service of the said vehicle was conducted on 23/04/2014 and 22/07/2014 respectively. The tyre used in the car was a product of Ceat Tyre, a well known branded company of tyre manufacturing and this OP is only a dealer of the vehicle. It is submitted that the vehicle was produced to this Op on 22/07/2014 for 2nd free service where In service demanded for washing and cleaning, 10,000KM service, to check Tak Tak noise while running tor rreplace RH rear door knobb, to check LH inner lock not working, to check all tyre wear and to check rear door not opening. All the requirements except tyre wear have been rectified and on initial verification since it was observed excessive wear at center portion of four tyres, the same was sent to CEAT company Ernakulam 23/07/2014. As per the inspection conducted by the company, it was informed the the tyre has been worn out and since any wear related issues are not coming under warranty, tyre could not be replaced. This might have been caused due to rash and negligent continuous usage of vehicle by plying in the hill area. This OP has no role in it. Being the fact is as mentioned above, this OP is not responsible in any manner for the loss if any sustained by the complainant. On receiving the lawyer notice from the complainant this OP has replied to him on 20/10/2014 by narrating the real facts. No deficiency in service. As such the complainant is not entitled o claim any relief and prayed for the dismissal of the complaint.
OP No.2 Submitted that the tyres of the vehicle is a proprietary item not covered under the standard warranty. It is submitted that there is no defect in the vehicle purchased by the complainant or any deficiency in service involved in the case. It is submitted that the transactions between this OP and OP No.1 are on principal to principal basis. This OP never had any transactions with the complainant and therefore there is no privity of contract between the complainant and this OP. Therefore the complainant as against this OP is to be dismissed. Further stated that OP is not admitting the allegation that the OP offered any guaranteed that the tyres of the vehicle will be best for 35000 Kms journey and they undertake to replace the tyres if any damages happened during the period. The complainant has reported the tyre wear concern on 22/07/2014 at 11610 Kms. It was informed that the technicians of the dealer has inspected the vehicle thoroughly and no manufacturing defects were observed by them. It is submitted that the OEM M/s. Ceat Ltd. had rejected the request observing that there is no manufacturing defect and the damages occurred to the tyres due to extraneous reasons. Hence the dealership suggested the complainant to replace the tyres under paid basis. It is submitted that no lawyer notice was issued to this OP. There is no deficiency in service and unfair trade practice on the part of this OP. Hence, prayed for the dismissal of complaint against OP No.2. It is submitted that M/s Mahindra & Mahindra is selling every vehicle with specified warranty. It is submitted that het dealer of this OP had complied with the condition of warranty by referring the matter to the manufacturer of tyres. The complainant is not entitled to claim any compensation as claimed.
On the basis of the contention raised by OPs, complainant has impleaded the manufacturer of the disputed tyre as additional OPNo.3 as per IA No.222/16 dated 22/08/2016.
On receiving notice additional OP No.3 filed their version stating that this OP is engaged in the manufacture and sale of tyres, tubes and flaps and sells the same to the dealers or original equipment manufacturers on a principle to principle basis under the terms and conditions of sale as mentioned on the reverse of the invoice. The terms and conditions stipulate that this OP gives no guaranty or warranty what so ever. This OP is not aware of the subsequent sales made by the dealers or original equipment manufacturers as there is no privity of contract between this OP and the customers of the dealer or original equipment manufacturers. It is submitted that his OP gives no guaranty or warranty in respects of products manufactured or sold by them. The tyres referred to in the complaint were not shed to this OP for inspection and there for have not been given an opportunity to inspect the tyres with regard to any alleged defects and hence this OP denies the claims and allegation as stated into the complaint. This OP submits that since the tyre is the only item in a vehicle which comes into contract with the road both while the vehicles is in motion and stationer the same is liable to be subjected to misuse and the refor this OP does not give any guaranty or warranty in respect of their product manufactured or sold. This OP further submits that they sells their product to various dealers or original equipment manufacturers on a principle to principle basis and they are no privy to what has been transpired after the sale of their product to the dealers or original equipment manufacturers. Hence, prayed for the dismissal of the complaint against OP 3.
At the evidence stage, complainant has filed his chief-affidavit and documents. Examined as Pw1, marked Ext.A1 to A6 and the disputed tyres 4 in numbers produced before the commission are marked as MO1 series. Pw1 was subjected to cross-examination by OPs 1 to 3. On the side of OPs, manager of OP1 Mr. Ramith Gangadharan filed his chief affidavit and was examined as Dw1. Customer care Manager of OP No.2 Mr.Akarsh Das filed his proof affidavit and was examined as Dw2. Warranty details of the vehicle was marked as Ext.B1.
After that the learned counsels of complainant, OPs 1 and 2 made argument, the learned counsel of OP No.2 filed argument note also. Ext.A3 shows that complainant had purchased the vehicle on 21/01/2014 from OP No.1 after paying Rs.5,74,819/- Rupees to OP No.1. It is a fact that when the car produced on 22/07/2014 for 2nd free service 10,000 Km service before OP No.1, complainant reported complaint to all tyre wear. OP No.1 submitted that on initial verification since it was observed excessive wear at center portion of four tyres, the same was sent to ceat company Ernakulam. As per inspection conducted by the company, it was informed that the tyre has been worn out and since any wear related issues are not coming under warranty, tyre could not be replaced free of cost. It is further stated that the damage of the tyre might have been caused due to rash and negligent continuous usage of vehicle by plying in the hill area.
From the evidence, it is established that within 10,000Km ie within 6 months of its purchase all the four tyres became damaged. Dws 1 and 2 deposed that the manufacturer of tyre, (OP3) issued warranty to the tyre. Dw2 deposed that it is mentioned in the owner’s manual. None of the OPs submitted the said warranty card before the commission. More over Dw2 gave evidence that the report sent by OP No.3 stating that the damage of the tyres was due to wear by plying the vehicle in excessive use in hilly are. There is no manufacturing defect of the tyres. So the damage of the tyres will not come under the warranty condition. But OP No.1 though adduced oral evidence, failed to submit the said report to establish their contention.
Here complainant produced all the disputed four tyres before the commission and also taken steps to appoint expert commissioner to inspect the tyres. Two experts were appointed but both of them was not ready to execute the order.
From the fact that within 6 months of the purchase of the new care, the tyres of the car was damaged means within the warranty period the tryers became damaged. So it was the duly of the manufacturer of the tyres OP No.3 to show reasons for the damage and they failed to do so. It was for the OP No.3 to prove before the commission that the damage caused to the tyre was not due to any manufacturing defect instead of taking such a contention in the version.
Ext.A6 shows that on 30/07/2014, complainant purchased new MRF tyres (4 in numbers) by virtue of Rs.19,602/- which itself reveals that the tyres in dispute could not be used in the vehicle.
Here OPs 1 and 2 have taken a contention that the tyrer of the vehicle is a proprietary item not covered under the standard warranty (Ext.B1). Further submitted that since there is no manufacturing or inherent defect in the vehicle purchased by the complainant, there is no deficiency in service on the part of OPs 1 and 2. They also denied the allegation of the complainant that OP No.1 offered and guaranteed that the tyres of the vehicle will be best for 35000KMS journey and untaken to replace the tyers if any damages happened during the period. OPs 1 and 2 vehemently contended that OP No.3 M/s Ceat Ltd. the manufacturers of the tyres alone is responsible, if the damage caused to the tyres were found due to manufacturing defect.
Here the question to be decided is whether manufacturer of the tyres alone is responsible?
It is an admitted fact that OP No.2 is the manufacturer of the vehicle who purchased parts including tyres from other companies and manufactured the vehicle. It is a fact that tyres are also an item of the vehicle under warranty issued by the manufacturer of it. It is also an admitted fact that OP No.1 is the authorized dealer of OP No.2. A Consumer is primarily concerned with the person from where he buys the goods as privity of contract is between them. Ordinarily, it is for the dealer to take care of the complainant’s concerns. A dealer cannot wash off his hand after making a sale. In M Subha Rao Vs. Avula Venkata reddy [II(2008)CPJ 269 NC) Held: “In our view, no doubt, the manufacturer would have been a proper party but at the same time the petitioner is a person who has supplied and sold the seeds to the complainant, therefore, complaint was maintainable against the petitioner. If petitioner has any grievance, it is open to the petitioner to recover the amount ordered from the manufacturer by filing appropriate proceedings, but it cannot be said that the petitioner, a dealer, who has sold the seeds, is not liable”.
This decision is applicable to this case against OPs 1 as well as 2. So both OPs 1and 2 are also responsible along with OPNO.3. From the available evidence we are of the view that there is deficiency in-service on the part of all OPs 1 to 3. So complainant is entitled to get relief. Here there is no meaning to order to replace the tyres of the vehicle with new one. So we are inclined to allow the price of the new tyres to the complainant.
In the result, compliant is allowed in part. Opposite parties 1 to 3 are directed to pay Rs.19,602 (Ext.A6) to the complainant together with Rs.45,000/- as compensation for loss, mental agony and Rs.15,000/- towards litigation expense of this complaint. Opposite parties 1 to 3 are jointly and severally liable to pay the awarded amount to the complainant within one month from the date of receipt of the certified copy of this order. Failing which Rs.19,602+Rs.45,000 carries interest @9% per annum from the date of order till realization. Complainant is at liberty to execute the order by filing execution application as per provision in Consumer Protection Act 2019.
Exts.
A1-Lawyer notice
A2-Reply notice
A3-Vehicle taking form
A4-Invoice dated 24/01/2014
A5-Invoice issued by Motor Pvt. Ltd.
A6-Bill issued by Faisal Tyers
B1-Warranty details
PW1-Sajeev M-Complainant
Dw1-Ramit Gangadharan-Witness of OP
Dw2-Akarsh Das-Witness of OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
/Forwarded by order/
Assistant Registrar
