BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.86/2014

Dated this the 14^th day of February 2018

(Date of Institution: 16.12.2014)

V. Pallavi rep. by her Power Agent                  

Vinayagamurthy,               

No.100, Mariamman Koil Street         

Sompet, Mannadipet Commune

Puducherry.

….     Complainant

vs

1. The Proprietor

    M/s J.K.V. Tyres

    No.76, 100 Feet Road,

    Sunder Raja Nagar

    Puducherry – 605 004.

2. The General Manager (Sales and Marketing)

    Bridgestone India (P) Ltd.,

    BSID, Plot No.5/4-5^th Floor

    Mirchandani Business Park

    Shalimar ONYX, Off Andheri Kurla Road

    Mumbai – 400 072. 

                                       ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

Tmt. D. KAVITHA, B.A., LL.B.,

MEMBER

FOR THE COMPLAINANT:  Thiru T. Gunasegaran, Advocate

FOR THE OPPOSITE PARTY:  Thiru K. Balaji, Advocate           

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 (3) of Consumer Protection Act for directing the Opposite Parties jointly to replace a new tyre in the place of old one;  to pay a sum of Rs.1,30,000/- towards damages and compensation, mental agony, deficiency in service, monetary loss and loss of income to the complainant; and to pay a sum of Rs.5000/- towards cost of this proceedings.

2.  The case of the complainant is as follows:

          That on 05.07.2013, the Complainant purchased 2 Bridgestone 165/65 R-14 (S322) T/L BS Tyres for her Car from the first opposite party for a sum of Rs.9,000/-;  that on 06.07.2013 when her brother Krishnakumar was driving the car on the Thirukannur- Vikravandi Road, near Panayapuram Village, one of the new tyre busted and the vehicle jumbled, went zigzag and it was stopped with great difficulty.  Immediately after the tyre burst, the running condition of the vehicle was seriously affected and the complainant forced to bring the vehicle with the help of another vehicle by pulling the same form Panayapuram to service station situated at Manakular Motors, Reddiarpalayam, Puducherry.  That after replacement of the new tyres on 05.07.2013 the vehicle was used only for 30 kms.  On 06.07.2013, the complainant had communicated the fact of new tyre bust to the first opposite party and she has claimed for replacement of new one.  The dealer had enquired about what was the type of road and number of persons travelling & time in which the tyre got bursted etc and asked the first opposite party to hand over the defective tyre and promised him to replace it after getting approval from Bridgestone   Head office  i.e the second opposite party.  The complainant had handed over the defective tyre with the dealer, the first opposite party herein and had obtained a receipt.  The complainant had spent a sum of Rs.13,641.00/- for repairing & servicing the vehicle which was damaged due to the tyre burst.  The first opposite party had insisted the complainant to pay a sum of Rs.2500/- for replacement.  The complainant further stated that the tyre had busted only because of the manufacturing defect since it has bursted on 06.07.2013 within 24 hours from the date of purchase.  The complainant was constrained to arrange a loan of Rs. 20,000/- on interest to buy a retreaded tyre and for repairing charges to run her vehicle.  The complainant sustained huge loss due to the acts and misdeeds of the opposite party.  The complainants also sustained shock, mental agony and sufferings due to the acts and attitudes of the opposite parties towards them.  The acts and deeds of the opposite parties amount to deficiency of service to the customers the complainants herein.  The opposite parties have to replace the new tyre for the busted tyre and rupees one lakh for the defective tyre sold to the complainant and Rs.10,000/- for negligence carelessness and inordinate delay, distress and Rupees 10,000/- towards loss of income.  The acts and attitudes of opposite party attract deficiency of service.  The complainant was constrained to issue a lawyers notice dated 20.07.2013 to the opposite parties calling upon them to compensate the complainants for deficiency in service committed by them.  The above said notice was acknowledged by the first opposite party on 23.07.2013 and the second opposite party on 29.07.2013.  After the receipt of the lawyers notice, the second opposite party has issued a vexatious reply dated 06.08.2013.  Hence this complaint for replacement of tyre, mental agony, damages and compensation.

3. The reply version filed by the opposite parties briefly discloses the following:

          This complaint is not legal, baseless, frivolous and it has been filed with ulterior motive to harass the opposite parties and to extort money and gaining wrongfully.   That, as per the provisions of the Consumer Protection Act, 1986, if the complaint relates to any defects in the goods then proper adjudication of the complaint  test / analysis of the alleged defective goods, in the present matter the tyre, as per as per section 13(1) of the Consumer Protection Act, 1986 needs to be carried out in the interest of justice for ascertaining the real cause of the alleged defectiveness  of the tyre.  It is stated by the opposite parties that the tyre manufactured by OP No.2 is governed in accordance with the warranty policy and any damage in the tyre is to be inspected by the qualified and trained technical service engineer of OP No.2 and if after inspection tyre reports damage attributable to manufacturing defect then the same is replaced in accordance with the warranty policy of second opposite party.    It should be noted that the tyre is under warranty for the period of three years from the date of purchase, however warranty stands only against the tyre damaged due to manufacturing defect and not against damages caused by road hazards and other external factors.  On  16.07.2013, one tyre of size 165/65 R14 pattern S322 bearing serial No. CED 1513 was inspected and after duly inspecting the tyre it was reported that damage in the tyre was shoulder cut penetration caused due to hit/impact from sharp external object and such kind of damage being not attributable to manufacturing defect, thereby the claim of the complainant was rejected in accordance with the warranty policy of second opposite party.  However considering the request of the complainant replacement tyre  @ 30% discounted value purely on goodwill basis was offered to the complainant however the same was not accepted by the complainant.  The opposite parties further stated that when the tyre runs at high speed on unpaved road, the sharp object like nails, sharp stones, pothole edges dividers and such external objects with proper cutting angle may cause damage irrespective of its mileage covered.  Such damages are not treated as manufacturing defect and can happen in any brand of tyre.  This is why each tyre should be checked on a regular basis. Tread  part is directly in  contact with road and sidewall is the flexible part of tyre to deliver ride and handling performance and absorb road shocks and the shoulder is most thickest part of the tyre, it is the joint of tread and sidewall.  Since the tyre is made of rubber and different features are provided based on performance requirement, abuse of tyre can lead to certain common damage like shoulder cut penetration which is not attributable to manufacturing defect.  The complainant has not produced any iota of evidence in support of serious allegations made against the second opposite party of the tyre being having defect.  If the complainant alleges defect in the tyre, then the defect could be proved only by laboratory test considering that complainant is not satisfied with inspection done by the qualified and trained technical service engineer of OP No.2.  Without such  test, the complainant being not a technical expert cannot reach to the conclusion about the manufacturing defect in the tyre.  The complainant has sent a legal notice through his Counsel.  The same was duly and timely replied by second opposite party, wherein, OP No.2 have comprehensively explain the reasons for rejecting the claim of the complainant and about the damage mechanism of shoulder cut penetration.  All the allegations made by the complainant that there was unfair trade practices on part of opposite parties are not admitted considering the fact that the complaint of the complainant has been timely attended and decided solely on the basis of merits.  Hence, prayed for dismissal of the complaint. 

4.       On the side of the complainant, the power agent of the complainant was examined as CW1 and Exs.C1 to C10 were marked.  On the side of opposite parties, no evidence was let in and no documents was marked. 

5.       Points for determination are :

1. Whether the Complainant is the Consumer?
2. Whether the opposite parties attributed any deficiency in service and unfair trade practice?
3. To what relief the complainant is entitled for?

6. Point No.1:

          The complainant has purchased two numbers of 165/65 R-14 (S322) T/L Bridgestone Tyre from the first opposite party on 05.07.2013 vide Ex.C2 Cash Bill.  The second opposite party is the manufacturer of the tyre.     Hence the Complainant is the Consumer for the opposite parties as per the Consumer Protection Act.

          7.  Point No.2:

It is the allegation of the complainant that she had purchased two Bridgestone tyre manufactured by the second opposite party for her car on 05.07.2013 from the first opposite party for Rs.9,000/-.  On 06.07.2013 when the car was driven by one Krishnakumar,  brother of the complainant on the Thirukanur – Vikravandi Road, near Panayapuram Village, one of the new tyre got burst.  The said fact was informed to the first opposite party and asked for replacement of new tyre and they promised to replace the same after getting approval from the second opposite party and received Ex.C4 the Dealer Claim Application Form.  The complainant further alleged that due to burst of the tyre, the vehicle got some defects and spent a sum of Rs.13,541/- vide Ex.C6 to rectify the same.  All the efforts taken by the complainant ended in vein.  Hence, the complainant sent legal notice Ex.C7 dated 20.07.2013, which was acknowledged by the opposite parties vide Exs.C8 and C9.  The second opposite party sent reply notice Ex.C10 dated 06.08.2013 stating that the damage in the tyre was shoulder cut penetration caused due to hit by some sharp external object and not due to manufacturing defect was reported. 

          8. The opposite parties alleged in their reply version and reply notice that the complaint is not maintainable as frivolous and filed to get illegal gain by the complainant.  The opposite parties stated that they have inspected the tyre and found that the damage was shoulder cut penetration caused due to hit / impact from sharp external object and the same would not attribute manufacturing defect.  The complainant has not produced any documentary evidence in support of her allegations.  If the complainant is not satisfied with the inspection report of the opposite parties, the complainant should test the tyre of her own and should prove that the tyre has got manufacturing defect.  The opposite parties denied the allegation of the complainant that the unfair trade practice on the part of opposite parties. 

9. We have perused the complaint, evidence of CW1 and Exs.C1 to C10 and the reply version of opposite parties.  Though the opposite parties filed their reply version, did not appear before this Forum to adduce evidence.  There is no dispute that the complainant has purchased two numbers of car tyre from the first opposite party.  The complainant stated that after replacement with the new tyre, the car was run to only 30 kms. during that time one of the new tyres got bursted for which the car went zigzag and the complainant caused to repair the vehicle by spending a sum of Rs.13,641/-.  The complainant alleged that the tyre persist manufacturing defect and the opposite parties committed deficiency in service. 

          10. On the otherhand, the learned Counsel appearing for the opposite parties alleged that they are not permitted to inspect the tyre in dispute, that is why, the complainant's tyre was inspected by the qualified and trained Technical Service Engineer on 16.07.2013 and reported that the damage in the tyre was shoulder cut penetration caused due to hit / impact from sharp external object and it should not be termed as manufacturing defect. 

          11. Under the above facts and circumstances, this Forum has to determine whether the complainant has proved her case with material records.  Admittedly, though the complainant alleged that the tyre got manufacturing defect, she has not subjected the tyre for analysis and for report.  Whereas, the opposite party No.2 filed an application in M.P. 129/2015 seeking direction to send the tyre to Government Approved Laboratory for testing and for report and the same petition was allowed on 19.08.2017 and the tyre was sent to The Rubber Research Institute of India, Kerala,  who is the approved Central Government Institution for analysis of rubber products.  A team of the Expert of The Rubber Research Institute of India inspected the tyre and reported that the damage cannot categorically stated to be due to manufacturing defect.  The opinion of the Expert is reproduced hereunder.

          "The damage seen on the tyre is due to factors related to impact of the tyre with some external object / Pothole / Kerb / road hazards etc.  Hence, the damage cannot categorically stated to be due to manufacturing defect."

          12. The learned Counsel appearing for the complainant vehemently objected the opinion alleging that the Expert report is based on physical observation only and hence, the report is not valid under law.  The Expert has to send the dispute tyre along with his report, but they failed to do so.  This Forum also taken into consideration the objection made by the learned Counsel for the complainant.  In the instant case, as required by the second opposite party, the tyre was sent for inspection to the  Government of India Institution, who also filed its report.  If there is any objection in the opinion of the Expert, it is the bounden duty of the complainant to examine the Expert.  On perusal of materials available on record, this Forum observed that neither the complainant nor the opposite parties chosen to summon the expert and examine him.  Under the above circumstances, this Forum relied the testimony of the expert in this case.  On perusal of the Expert opinion, this Forum found that the opinion given by the Expert is sufficient to come to a conclusion. 

            13. In this complaint, the complainant seeking replacement of tyre.  For replacement of tyre, it is essential that the complainant should prove that the tyre got manufacturing defect with expert opinion.  On the other hand, the opposite party No.2 who is the manufacturer of the tyre sent the same for inspection with a Government of India Institution who opined that the damage is not caused due to the manufacturing defect, this Forum left with no other option except to go with the findings of the Expert Report.     Thus, the complainant did not prove her allegation that the opposite parties are indulged in deficiency in service.  On the other hand, the opposite parties have established that the tyre has no manufacturing defect.   

          14. Point No.3:

In view of the discussions made supra,  this Forum held that this complaint lacks merits and therefore the complaint is liable to be dismissed.  MO1  was subjected to laboratory test, it was not returned  back to this Forum by the Rubber Institute. 

          15. In the result, this complaint is dismissed. No costs.

Dated this the 14^th  day of  February 2018.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

MEMBER

COMPLAINANTS' WITNESS:

CW1           21.01.2016           Vinayagamoorthy

OPPOSITE PARTY'S WITNESS:  NIL

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS: NIL

LIST OF MATERIAL OBJECTS: 

MO1           165/65 R-14 (S322) T/L Bridgestone Tyre - 1 no.

[MO1  was subjected to laboratory test, it was not returned  back to

this Forum by the Rubber Institute]

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

MEMBER