Before the District Consumer Disputes Redressal Forum, Mandi H.P.
Complaint Case No.148/2008
Date of Institution 18-6-2008
Date of Decision 31-10-2009
Thirth Ram Sharma resident of village Sishal , Post Office Sidhyani, Tehsil Sadar, District Mandi, H.P.
…Complainant
V/S
1. M/S Krishna Automobiles , Village and Post Office Dadour, Tehsil Sadar, District Mandi, H.P. authorized dealer of JCB India Ltd through its Manager.
2. JCB India , Ltd Registered Office B-1/I-I 2nd floor
Mohan Co-operative Industrial Estate Mathura Road, New Delhi through its Managing Director.
3. District Manager, MRF Ltd ,Jalandhar, Punjab.
..Opposite parties
For the complainant Sh.T.R. Sharma, Advocate
For the opposite parties No.1 and 3 Sh.A.S.Thakur, Advocate
For the opposite party No.2 Sh. Nand Lal , Advocate
Complaint under Section 12 of the
Consumer Protection Act, 1986.
ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties. The case of the complainant is that he purchased a JCB machine for self employment from the opposite party No.1 being dealer of opposite party No.2 on 3-7-2007 under warranty for one year / 2000 hours . During the warranty period, due to some inherent manufacturing defect, one of the tyre of left hand side bearing Sr.No.1049832407 was found buldged out from outer side bead area which is manufacturing defect and the same was intimated to the opposite party No.1 . The complainant averred that when tyre was dismantled by the opposite party No.1 it was found that there was a deep cut on the inner side of tyre and except this manufacturing defect the outer condition of the above said tyre was in Ok condition.. The complainant alleged that the manufacturing defect was promptly intimated to the opposite party No.3 through the opposite party No.1 who is the manufacturer of above tyre and on intimation , the opposite party No.3 deputed its Service Engineer for inspection of defective tyre , but the opposite party No.3 has wrongly and illegally repudiated the claim of the complainant by alleging that there is no manufacturing defect in the above said tyre. The complainant alleged that the above act and conduct of the opposite parties jointly and severally is not only deficiency in service but also unfair trade practice . The complainant had further alleged that he has not only suffered loss of working of JCB machine for a long period but is still suffering mental tension. On these allegations, the complainant had sought a direction to the opposite parties to replace the defective tyre free of cost and also to compensate him to the tune of Rs.50,000/-.Apart from this costs of litigation has also been claimed.
2 The opposite party No.1 resisted the complaint and filed reply wherein preliminary objections have been raised that the complaint is not maintainable and there is no locus standi to file the present complaint against it .On merits, the opposite party No.1 has admitted that the complainant has brought the JCB machine to the business premises and it was found that one left hand side tyre of machine was buldged from one place and when it was dismantled by it was found that there was a deep cut in the inner side of tyre. It has also been admitted that the defect in the tyre was reported to the opposite party No. 3 and the opposite party No.1 has deputed the surveyor who inspected the tyre . . Rest of the allegations have been denied being wrong The opposite party had prayed for dismissal of the complaint qua it.
3 The opposite party No.2 has field reply taking preliminary objections that the present complaint is not only barred in law but also without any merit or basis on substance and facts that the complainant is not a consumer under the Act , that the complainant has purchased the said JCB machine solely for commercial purpose and plied by the person other than the complainant and the complaint is untenable , that the complainant has not alleged any defect in the machine as the same is operational , that there is no inherent manufacturing defect in the tyre supplied by it , that the forum has no territorial jurisdiction to try and entertain the present complaint and no cause of action has arisen in favour of the complainant . On merits , it has been contended that the complainant has purchased the said machine from it and not from the opposite party No.1. It has been stated that the machine has a warranty of one year or 2000 hours of working whichever is earlier subject to terms and conditions of warranty policy and tyres and tubes are subject to warranty only if there is a manufacturing defect or as per the terms of the warranty and not beyond. The opposite party No.2 has denied that there is manufacturing defect in the tyres and since there is no defect in the tyres of the machine no question of replacement of tyre arises . It has also been denied that the Engineers of the opposite party No.1 ever admitted that there is any defect in the tyres . The opposite party No.2 should not be held responsible for tyres being manufactured and proprietary item of the opposite party No.3.The opposite party No.2 has denied any deficiency in service or any restrictive trace practice on its part and prayed for dismissal of the complaint with exemplary costs.
4. The opposite party No.3 has filed reply and resisted the complaint wherein preliminary objections have been raised that the complaint is not maintainable , the complainant is not a consumer . On merits , the opposite party No.3 has admitted the purchase of JCB machine and its warranty for one year / 2000 hours etc. but pleaded that the vehicle is being used for commercial purpose and as such the complaint is not maintainable . It has been denied that there is inherent manufacturing defect in the tyre in question . It has also been admitted that the Service Engineer inspected the tyres and it was found that the tyre has damaged due to rough use of same and in view of this fact there is no deficiency in service on its part . The opposite party No.3 further pleaded that neither it is liable to replace the tyre in question nor any compensation to the complainant. The opposite party No.3 has sought dismissal of the complaint qua it .
5. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.
6. We have heard the ld. counsel for the parties and have also gone through the entire record. The ld. counsel for the opposite parties strenuously urged that the complainant is not a consumer as JCB machine was purchased by the complainant for commercial purpose and they further contended that this Forum has no territorial jurisdiction to try and entertain the present complaint.
7. Now the first question which arises for consideration before this Forum is as to whether the complainant is a consumer under the Act. The complainant in his complaint has specifically pleaded that he has purchased JCB machine for his self employment from the opposite party No.1. However, according to the opposite parties machine purchased by the complainant is for a commercial purpose . In our opinion ,when it has been specifically pleaded by the complainant that he has purchased the JCB machine for self employment , he would definitely fall under the definition of the consumer as defined in section 2(1)(d) of the Act.
8 The second point which arises for determination by this Forum is as to whether this Forum has no territorial jurisdiction to entertain the present complaint . The ld. counsel for the opposite parties had contended that this Forum lack territorial jurisdiction to try the present complaint. However, the contention of the ld. counsel for the opposite parties deserves to be rejected because the complainant had purchased the JCB machine from the opposite party No.1 at Mandi. Therefore, the cause of action has arisen in favour of the complainant within the territorial jurisdiction of this Forum and the contention of the opposite parties that this Forum has no territorial jurisdiction to try and entertain the complaint has no legs to stand .
9 Now adverting to the merits of the case , it is not in dispute that the opposite party No.1 is the dealer of the opposite party No.2 , and the opposite party No.2 is manufacturer of the vehicle in question. It is also not in dispute that the opposite party No.3 is the manufacturer of the tyres in question. . The opposite party No.1 had not disputed that the complainant purchased the JCB machine from it and he is the dealer of the opposite party No.2. It has also not been disputed that the machine has a warranty of one year/ 2000 hours of working which ever is earlier . The opposite party No.2 had admitted that the tyres and tubes are subject to warranty only if there is manufacturing defect or as per the terms of warranty and not beyond . It has also been admitted by the opposite party No.1 that the complainant brought the JCB machine to its business premises and it was found that one left hand side tyre of machine was buldged from one place and when it was dismantled by the opposite party No.1 then it was found defective as there was a deep cut on the inner side of the tyre and on this, intimation regarding defect in the tyre was given to the opposite party No.3 who deputed its surveyor to inspect the tyre . According to the opposite party No.3, on inspection of the tyre it was found that there was no manufacturing defect and the tyre was damaged due to its rough use . Reliance has been placed on Technical Inspection Report wherein it has been mentioned that cut in the tyre was found on account of “Concussion” . After inspection , it was observed by the opposite party No.3 that since the tyres are free from any manufacturing defect , they cannot replace the tyre as claimed . In our opinion , once the complainant has proved that one of the tyre of the machine has developed defect the onus shifts to the manufacturer to prove that the same did not suffer from any defect. To take this view we are fortified by the decision of Hon’ble State Consumer Disputes Redressal Commission , New Delhi in the case titled Tata Motors Ltd vs Manoj Gadi and another 2009(1)CPC-82. The relevant portion is reproduced hereinabove:-
In our view , onus shifts to the manufacturer to prove that the vehicle did not suffer from any defect including the manufacturing defect once the consumer proves from job cards that the vehicle was taken on large number of occasion for removing one defect or the other .
In the present case, therefore , onus was upon the manufacturer to prove that the tyre did not suffer from any manufacture defect. However except the photocopy of the Technical Inspection report, there is no other evidence on record to show that the tyre is free from any manufacturing defect. The opposite party No.3 in its reply to para No.3 on merits had categorically pleaded that it was ready to explain the cause of damage, however, no such explanation has been placed on record by the opposite party No.3.
The opposite party No.3 should have placed on record the affidavit of Engineer who had inspected the tyre in question and he should have given a detailed report regarding the defect in the tyre in question but neither any detailed report nor any affidavit has been adduced in evidence . Therefore, no benefit can be derived by the opposite party No.3 from above document. According to the opposite party No.3 tyre was damaged due to the rough use , but there is no evidence on record to prove this fact. It is beyond imagination that only one tyre got damaged due to rough use because had the machine been put to rough use by the complainant, all tyres would have been damaged and it is not understandable as to how only one tyre got damaged due to rough use as contended by the opposite parties. Be it stated that during the pendency of the present complaint on the application of the complainant with the consent of the ld . counsel for the parties Sh.Chand Ram Foreman / Works Manager of M/S Highway Tyres was appointed as Local Commissioner and he was directed to inspect the tyre in question and to report about the defect and also whether the defect in the tyre was inherent manufacturing defect or not . Pursuant to the direction of this Forum, Local Commissioner sent his report dated 2-6-2009 wherein it has been reported as under:-
“In my opinion, the inside tyre cord had failed due to defect of weak cord strength which defect is inherent manufacturing defect.”
No objections have been filed on behalf of the opposite parties to the aforesaid report of Local Commissioner despite various opportunities granted in this respect. Therefore, we have no hesitation to accept the report of the Local commissioner and in view of the same it is held that tyre in question suffers from inherent manufacturing defect and the opposite parties are jointly and severally liable to replace the same with new one .
10 In the light of above discussion, the complaint is allowed and the opposite parties are jointly and severally liable to replace the defective tyre of the complainant with new one of same make and model within 30 days from the date of receipt of copy of this order failing which to pay the price of the tyre with interest at the rate of 9% p.a. from the date of filing of the complaint till realization The opposite parties are further directed to pay Rs.2,000/- as compensation on account of harassment and Rs. 1000/- as costs of litigation to the complainant.
11 Copy of this order be supplied to the parties free of cost as per Rules
12 File, after due completion be consigned to the Record Room.
Announced
31-10-2009 ( Sushil Kukreja) President
*DKM* ( Lal Singh ) ( Alkananda) Members