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Judgment
MRS . Rajyalakshmi Rao, Member -In the present case, the complainant No. 1, Dr. Pirthipal Singh Bhandari, is a medical practitioner doing practice and having a clinic at Rajouri Garden, New Delhi. He is also running a private hospital. Complainant No. 2, Mr. Manjeet Singh, is brother -in -law of complainant No. 1 and was managing the said hospital of complainant No. 1 at Delhi. Complainant No. 1 is around 46 years of age. They filed this complaint against M/s. Mahindra & Mahindra Ltd., opposite party No. 1; and M/s. Sanghi Motors -opposite party No. 2 for selling/supplying a defective Armada'' Jeep having inherent manufacturing defects, which caused an accident to the vehicle, due to which, complainant No. 2 suffered serious injuries and became permanently disabled and incapacitated. Complainant No. 2 is 53 years old at the time of accident and he has a son and a daughter to support him.
DR . Bhandari purchased the Jeep manufactured by O.P. No. 1 through O.P. No. 2 vide bill No. 522 dated 27.10.1993 for Rs.2,82,826. The vehicle was delivered on 29.10.1993. Ever since the jeep was purchased, it was taken to the authorised service station i.e. O.P. No. 2 many number of times to rectify the defects. It is submitted that on 13.3.1994 the jeep failed pollution check at Janakpuri by Inspector of Transport Department of Delhi Authority, New Delhi after a third free service done by opposite parties. Complainant No. 1 wrote vide letter dated 9.5.1994 to O.P. No. 1 complaining that the left front tyre of the vehicle was wearing out at a very fast rate when it completed nearly 11,000 kilometres. It is contended that even though he got wheel balancing, wheel alignment and change of one bearing done in the third free service, the inherent manufacturing defect continued to remain in the vehicle and he reported this to O.P. No. 2. in the job card No. 85 dated 21.4.1994 on 22.4.1994 it is noted that wheel bearing was changed and front left tyre was replaced with right tyre by O.P. No. 2, but it is contended that still the wearing of the tyre continued. On 14.7.1994, O.P. No. 2 assured in writing to complainant No. 1 that the vehicle was in perfect order and safe to drive.
ON 16.7.1994, complainant Nos. 1 and 2 and some others undertook a journey to Agra in the jeep, which was being driven by complainant No. 1/driver, and unfortunately, it met with an accident due to bursting of the right tyre of the vehicle. The said accident was reported to Police Station Farah, Mathura District, immediately. Unfortunately, complainant No. 2 sustained serious injuries and had to be admitted in S.N. Hospital, Agra, in the Emergency Department, where after first aid treatment, he was shifted to Kolmet Hospital, Pusa Road, New Delhi for two weeks. Because of the accident, complainant No. 2, became permanently disabled as his right forearm was badly injured. His right arm was operated upon time and again. Blood transfusion was given for 15 times. He spent 5.15 lakh for the treatment so far, and further, three more operations are required to be done costing Rs. 1,00,000. Complainant No. 1 also received injuries in the accident and for 8 days he could not continue with his professional work. The complainant stated that the accident occurred due to defects in vehicle with substandard tyres and also because of gross negligence while doing repair jobs in the workshop by O.P. No. 2 time and again. Complainant had written to O.P. No. 2 that the tyres of the vehicle are wearing out very fast and that it is risky to drive the vehicle, but still O.P. No. 2 confirmed vide letters, dated 14.7.1994, and 15.7.1994, that the vehicle was in a perfect shape to take long drive to Agra and back. It is averred that opposite parties supplied defective vehicle, which came with defective tyres, but they never rectified the recurring problems even though complainant repeatedly brought it to their notice about the various defects related to the vehicle. The tyres of the vehicle got burst and there is no mark of anything sharply hitting the tyre of the vehicle as alleged by opposite parties. The vehicle met with an accident solely due to the inherent manufacturing defect, for which both opposite parties are jointly and severally liable to pay compensation to complainant for their acts of omissions, commissions and negligence. Irreparable injury has been caused to complainant No. 2, who is till today suffering due to the accident.
COMPLAINAN TS sought the following directions to be given to opposite parties to jointly and severally: (a) Refund to complainant No. 1 Rs.2,82,826 with 24% interest thereon per annum from the date of purchase of the said vehicle i.e. 27.10.1993 till date of actual payment of the amount (this amount is the actual cost of vehicle with accessories.);
(b) Pay to complainant No. 2 Rs.1,50,000 for the actual amount spent on the treatment of the complainant No. 2 together with interest @ 24% per annum from the date of accident till the realization thereof;
(c) Pay Rs.80,000 to complainant No. 1 being loss of his practice for eight days together with interest @ 24% from the date of presentation of the complaint till the realization thereof;
(d) Pay Rs.3,540 to complainant No. 1 (being cost of replacement/repair of front tyres of the said vehicle, purchased from Tyre Centre, 33/101, M.G. Road, Agra vide bill No. 681 dated 16.7.1994) together with interest @ 24% from the date of presentation till the realization thereof;
(e) Pay Rs.10,00,000 each to complainant Nos. 1 and 2 together with interest @ 24% from the date of presentation of the complaint till the realization thereof.
Version of opposite party No. 1
IN the written statement, opposite party No. 1 has contended that the complainant cannot be considered to be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, since the vehicle in question admittedly was purchased and was being used for commercial purposes, apart from the fact that the complainant owns as many as five other vehicles. It is pointed out that the letter, dated 27.9.1993, addressed by the former President of India Shri Giani Zail Singh, recommending the opposite party No. 1 to allot the vehicle Armada'' to the complainant for the purpose of hospital, clearly shows that it is meant for the commercial purpose of the hospital.
OPPOSITE parties stated that complainant No. 2 cannot be considered to be a consumer because he does not own the vehicle and there is no privity of contract between him and the opposite parties. He stated that he was incapacitated permanently due to the defective vehicle which caused the accident as alleged is irrelevant and extraneous to the dispute in question, since the complainant No. 2 has no privity of contract with opposite parties and no document is placed on record to show that complainant No. 2 had contracted with opposite parties for hiring their services.
IT is further stated that O.P. No. 2 is a dealer and not their agent. O.P. No. 1 manufactures and sells its vehicles on principal to principal basis to its dealers situated all over the country, who in turn, sell the same to their customers. The cheque No. 125371, dated 19.10.1993, drawn on the State Bank of Indore, was issued by complainant No. 1, which was encashed by O.P. No. 2. The vehicle, which was purchased was given a warranty and the contents of the same are set out in pages A -8, A -10, A -12, A -14, A -16, A -18, A -20, A -22, A -24 of the operators manual, which was handed over to complainant No. 1 at the time of purchase of the vehicle (Annexure -C). In particular, in the warranty clauses of the vehicle at page A -10, it is made clear that it excludes the tyres of the vehicle, which are warranted by the tyre manufacturer. It is also stated that complainant No. 1 failed to furnish all the relevant job cards in relation to the vehicle Armada'' including the job cards, dated 31.12.1993, 14.1.1994, 11.8.1994 and 9.12.1994, when minor repairs, and preventive maintenance jobs were done for the vehicle. Complainant No. 1 did not come with clean hands to the Commission as he suppressed vital, relevant and material documents, which are in their possession.
THE vehicle was brought for free service to O.P. No. 2 and also for fixing certain jobs, which are given here as under: (a) The vehicle was first brought for its free service after it had covered 2195 kms. by the driver of the complainant No. 1 on 15.12.1993, and after minor repairs; servicing and adjustments, returned the vehicle to the complete satisfaction of complainant No. 1, the relevant job card No. 1245, dated 15.12.1993 (Annexure E''). The complainants did not make any reference to this job card.
(b) On 31.12.1993, the vehicle having covered 3357 kms. was brought to the workshop of opposite party No. 2 for minor adjustments and repairs and the said vehicle was returned after servicing and repairs at the workshop of O.P. No. 2 to the complete satisfaction of complainant No. 1, the relevant job card No. 1318, dated 31.12.1993 (Annexure E''). The complainant also did not disclose this job card.
(c) On 14.1.1994 the vehicle having covered 4290 kms, was brought to the workshop for its 2nd free service and the said vehicle was duly serviced and delivered by O.P. No. 2 to the satisfaction of complainant No. 1, the relevant job card No. 1371, dated 14.1.1994 (Annexure G''). The complainants also did not annex this job card, which was duly signed.
(d) By letter, dated 18.1.1994, complainant addressed O.P. No. 1 requesting for replacing of fuel meter or panel, since O.P. No. 2 and Skyline Motors were unable to do the same. (Annexure H''). The fuel tank unit was replaced on 31.12.1993. The complainant did not disclose this letter dated 18.1.1994.
(e) O.P. No. 1, further, by letter dated 25.1.1994 to the complainant promised to investigate and submit a technical report on the desirability of replacement of fuel unit (Annexure I''). O.P. No. 1 pointed out that both the problems have been attended to in December 1993 itself by O.P. No. 2.
(f) On 28.2.1994, the vehicle having covered 8530 kms. was attended to by Skyline Automobiles for its third free service, relevant job card is dated 28.2.1994 (Annexure K''). After receiving the letter, dated 22.2.1994, complainant No. 1 did not raise any grievances regarding the fuel meter or panel on 28.2.1994, which clearly show the factual position that there was nothing wrong or amiss with the vehicle.
(g) O.P. No. 2 addressed a letter, dated 25.3.1994, to complainant No. 1 with a copy to O.P. No. 1 pointing out that his driver had come on 25.3.1994 to O.P. No. 2 with O.P. No. 1''s letter dated 22.2.1994 but without the vehicle (Annexure L'').
(h) After almost four months, the vehicle was brought to the workshop of O.P. No. 2 on 6.4.1994 for repair of a few minor parts and adjustments after the vehicle had covered 10631 Kms. No grievance regarding fuel meter or panel was made by complainant No.1 on 6.4.1994, relevant job card No. 2023 dated 6.4.1994 (Annexure M'').
(i) After almost six months i.e., after covering 12,000 kms. it was for the first time, complainant No. 1 made a grievance regarding tyre wear on the front left tyre, which was immediately and promptly attended to by O.P. No. 2 by replacing the King -Pin bearing of that left side tyre, (the relevant job card No. 2085), on 21.4.1994 (Annexure N''). It clearly mentions that the tyre wear was confined to the front left side tyre and not both the front tyres.
VERSION OF OPPOSITE PARTY No. 2 (a) In its written statement O.P. No. 2 contended that this complaint is not maintainable because the complainants tried to derive unfair benefit under the warranty clause by repeatedly reporting every minute problem with the car and by threatening to sue him.
(b) It is averred that the alleged accident did not occur and this case is a concocted story made by the complainants in order to extract money.
(c) It is pertinent to note that no insurance claim has been lodged nor any report of the mishap been given to the insurance company in connection with the said accident, which they would have done if the accident in fact actually took place.
(d) The complainants merely filed a police report without disclosing the exact place where the alleged accident has taken place. In the complaint it is alleged that the vehicle had turned turtle''. In the normal course, some damage is always caused to the body of the vehicle if any accident occurs. But, in the instant case, no damage is reported to the vehicle. Significantly, the wheel caps fitted on the tyres and the foot rest are made of fiber glass. Rear view mirror fitted to front door and the front bumper of the vehicle on the side containing side light indicator are all made of fiber glass. The vehicle has eleven glasses, four on each side and one wind screen and two rear glasses. None of the aforesaid parts/doors fittings/glasses have been stated to have been damaged. This clearly refutes the allegation of the vehicle having turned turtle''.
(e) None of the other passengers in the vehicle suffered from any injuries considering the magnitude of the alleged accident as magnified by the complainants.
(f) Major amount of the medicine purchase bills pertain to the date 29.7.1994, whereas complainant No. 2 is alleged to have been discharged after hospitalization for the period from 16.7.1994 to 30.7.1994. This indicates that these bills were fabricated by the complainants.
(g) There was no defect in the tyres as alleged by the complainant because tests were done and which indicate that the alleged vehicle tyres were not bald and still have a lot of life in them and the tyre wear indicated in the tests was for the mileage. As per the complainants allegation that the tyre bursted resulting in a fatal accident, strangely it is seen from the purchase receipt produced in the complaint that the complainant has purchased a tyre of the same make i.e., "J.K. Radial tyre". After such a fatal accident, if actually occurred, a normal human reaction would be not to purchase a tyre of the same make.
(h) On 6.4.1994, when the complainant had gone to workshop with the vehicle, which had already completed 10,638 kms, there was no complaint regarding tyres nor any manufacturing defect, it was only on 21.4.1994 when the vehicle completed 12,000 kms, complainant reported tyre wear for the first time, which was attended to by replacing the bottom LHS King Pin bearing. Wheel alignment was found OK. The computer wheel alignment was also done on 5.5.1994, when a service campaign was done in association with O.P. No. 1. If there was any sudden deterioration of wheel alignment between 21.4.1994 to 5.5.1994, it could only due to some mishandling by the unauthorized mechanics. Complainant No. 1 wrote a letter to O.P. No. 1 on 9.5.1994 complaining that both the front tyres have started wearing out. But, strangely, he never approached O.P. No. 2 for that defect till 6.7.1994. If complainant No. 1''s version is true, then there is no reason for him to wait in getting the problem with the tyres corrected from 9.5.1994 till 6.7.1994. This clearly indicates that the complainant has made up a concocted story through -out. Even on 7.7.1994 at 15,732 kms. the tyre wear was normal. On 14.7.1994 at 16,254 kms, when vehicle was brought to O.P. No. 2 for servicing the king pin bearing, wheel alignment was checked which was found OK. The factors leading to tyre wear was also checked by them and it was found that in contrast with the bald tyres which have zero tread depths the tread depths of the complainant vehicle tyres were taken at three points, which indicated that the tyres were not bald but still had a lot of life in them. The average wear was about 2mm as compared to the unused spare wheel tyre indicating only 1/5th life loss, which is normal for the mileage of 16,254 kms. The front average depth was found to be on an average 1mm less than the rear tyres, which is a normal occurrence if the tyres are not rotated as in this case. The complainant never asked for rotation in spite of express satisfaction of O.P. No. 1 to this effect. The fact that the spare tyre also appeared to be unused/barely used as indicated by the tread depth which were comparable to new tyres also shows lack of rotation.
(i) It is denied that there was any manufacturing defect in the vehicle or the tyres fitted with the vehicle were of poor quality. It is reiterated that the tyres are proprietary components and their warranty is handled by respective tyre manufacturers and that the same was also mentioned in the vehicle manual.
LEARNED Counsel Mr. Updip Singh for the complainant averred that due to inherent manufacturing defects in the vehicle, poor quality of parts that were supplied by O.P. No. 1 and for the poor servicing given by O.P. No. 2 during warranted period, the vehicle met with an accident. He relied on Annexure D'' produced by the opposite parties and filed in the affidavit of evidence by Mr. M.S. Dua, who is their witness. It is stated that Mr. Dua is a Mechanical Engineer from Gurunanak Engineering College, Ludhiana, who had five years experience of work with Escorts Tractors, thereafter about six years till 1992 with M/s. Maruti Udyog as registered vendor.
LEARNED Counsel referred to the evidence of Manjit Singh Dua dated 4.5.2009, in which he inferred: (a) That he inspected and drove the vehicle on 30.7.1994. The owner of the vehicle has been reporting various defects right from the beginning i.e., within one or two months after purchase.
(b) That after sales service of O.P. No. 1 with various dealers is of sub -standard quality and even after frequent visits they are unable to rectify minor defects. These defects have been recurring frequently and hence the vehicle had to be taken to the workshop of O.P. No. 2 for various repairs.
(c) The fuel gauge and other electrical gadgets, which are fitted in the new vehicle, have manufacturing defects and these could not be rectified by O.P. No. 2, and they have to replace the same with new ones. Even fuel tank was replaced after a few months of date of delivery.
(d) Right from the day the vehicle was delivered to the complainant, suspension system of the vehicle is inherently defective, despite replacement of parts like king pin bearing, repeated adjustment for repeated defects of play in steering/hard steering, brakes, uneven wearing of front tyre as compared to rear ones, misalignment even after the rectifications.
CONSIDERIN G the voluminous record produced by the complainant and Mr. Dua, leaving the blanks etc. which are the job card compilation as produced by O.P. No. 2 as Annexure D'' in their affidavit, the relevant extracts are given below by us: BRAKE SYSTEM COMPLAINT WORK DONE 1 2 3 29.10.1993 Vehicle purchased ZERO K.Ms. 15.12.1993 Brake Sound side ADJUSTMNET At 2195 K.Ms. done 31.12.1993 CHECK UP BRAKES ADJ. DONE At 3357 K.Ms. 28.3.1994 THIRD SERVICE At 8530 K.Ms. BRAKE ADJUSTMENT ADJ. DONE 1 2 3 30.3.1994 VEHICLE FAILED POLUTION TEST 6.4.1994 ADJUST BREAK ADJ. DONE At 10631 K.Ms. 7.7.1994 ADJUST BRAKE ADJ. DONE At 15,732 K.Ms. 11.8.1994 CHECK UP BRAKE ADJ. DONE At 18680 K.Ms. 9.12.1994 CHECK BRAKE PULLING TOWARDS ADJ. At 23172 K.Ms. LEFT 23.1.1996 BRAKE OVERHAUL PROPOSED BY O.P. 2 At 38913 K.Ms. CLUTCH SYSTEM COMPLAINT WORK DONE 28.3.1994 THIRD SERVICE At 8530 K.Ms. CHECK CLUTCH ADJ.DONE 30.3.1994 VEHICLE FAILED POLLUTION TEST 6.4.1994 CLUTCH TIGHT ADJ. DONE At 10631 K.Ms. 21.4.1994 CHECK 1ST/REVERSE GEAR ADJ.DONE At 12000 K.Ms. AT OPERATION CLUTCH 7.7.1994 ADJUST CLUTCH ADJ.DONE At 15732 K.Ms. 11.8.1994 CHECK CLUTCH ADJ.DONE At 18680 K.Ms. 15.10.1994 CHECK 1ST GEAR HARD ADJ.DONE At 21215 K.Ms. 23.1.1996 CLUTCH OVERHAUL PROPOSED BY O.P. 2 At 38913 K.Ms. Dt............... CHECK UP CLUTCH At 40807 K.Ms. FUEL GAUGE SYSTEM : Minor adjustments done STEERING SYSTEM/SUSPENSION SYSTEM COMPLAINT WORK DONE 15.12.1993 STEERING NOISING ADJ.DONE At 2195 K.Ms. CHECK UP SOUND WHILE RUNNING AT 60 KM. SPEED 28.3.1994 THIRD SERVICE At 8530 K.Ms. CHECK STEERING 2 KING PIN BEARINGS REPLACED 6.4.1994 CHECK ABNORMAL SOUND ADJ. DONE At 10631 K.Ms. FROM BOTTOM 1 2 3 21.4.1994 STEERING WOBBELING WH. ALIGNMENT At 12000 K.Ms. - TYRE WEAR FRONT LEFT SIDE KING PIN BEARING REPLACED 5.5.1994 WHEEL ALIGNEMNT At 13255 K.Ms. 7.7.1994 CHECK UP STEERING HARD TWO KING PIN BEARINGS REPLACED At 15732 K.Ms. BOTH TYRE WEAR ADJ. DONE 14.7.1994 FRONT TYRE WEAR TYRE CHECKED REPORT - FRONT TYRE MORE WORN At 16254 K.Ms. OUT THAN REAR TYRES and LEFT FRONT TYRE MORE WORN THAN FRONT RIGHT TYRE 11.8.1994 CHECK UP STEERING ADJ.DONE At 18680 K.Ms. 15.10.1994 CHECK PULLING TOWARDS LEFT ADJ.DONE At 21215 K.Ms. STEERING WHEEL PLAY ADJ. DONE 9.12.1994 CHECK STEERING WHEEL BUSH ADJ.DONE At 23172 K.Ms. 6.5.1995 CHECK UP LEFT WHEEL ONE KING PIN BEARING At 29042 K.Ms. REPLACED -CHECK RIGHT FRONT WHEEL - WHEEL CYLINDER KIT REPLACED 23.1.1996 -FOUR KING PIN BEARINGS NEED REPLACEMENT At 38913 K.Ms. 9/17.12.1996 -VEHICLE GOES TO LEFT WHILE DRIVING -ALL ROAD SPRING RECAMBRING At 48622 K.Ms. -REPLACING SHACKLE HANGER KIT and PIN + BUSH ELECTRICAL SYSTEM and MISC FAULTS : Minor adjustments were done from 15.12.1993 to 25.7.1996
It is further contended that the tyre pressure as per Operator''s manual annexed by O.P. No. 2 (Ex.RW1/D) in Volume IV is as: "FRONT REAR TYPE OF TYRE 1.5Kg/cm2 2.53 kg/cm2 195/70SR15 (22 p.s.i.) (36p.s.i.) Radial Tyre"
But the Operator''s Manual supplied to the complainant (Ex.CW -1/RB) in Volume VII, it is mentioned with regard to the tyre pressure as under: "FRONT REAR 1.4 kg/cm2 2.5 kg/cm2 (FOR 195/70 tyre)"
LEARNED Counsel submitted that both the Operator''s Manuals are issued on the same date i.e., March, 1993, but in the contents different tyre pressures to be maintained are mentioned, which goes to show that Opposite Parties were not themselves sure about the exact tyre pressure to be maintained. This discrepancy is probably due to incomplete R and D of O.P. No. 1, which resulted into poor response of the Armada'' vehicles, and hence, O.P. No. 1 has discontinued the same.
COMPLAINAN TS reiterated that Armada'' itself is badly designed vehicle based on the contents of Annexure D'', a tabulation of defects/repairs as per job cards. Opposite Parties argue that various defects as mentioned by the complainant are minor adjustments although they were repeatedly required to be done, which complainant vehemently urged that these are caused solely due to the defective vehicle that has been palmed off to him.
THE vehicle is defective and hence complainant had to pursue with O.P. No. 2 time and again with various defects as to brake system, clutch system, fuel guage system, electrical system and miscellaneous faults. On 6.4.1994, complaint was made to them regarding abnormal sound from bottom portion along with other complaints. O.P. No. 2 could not identify the fault of broken king pin bearing then but was replaced only on 21.4.1994. It is submitted that king pin bearings were replaced on 28.3.1994, 21.4.1994, 7.7.1994, 6.5.1995, 23.1.1996, which show that repeated breakage of king pin bearing could not be on account of bad driving but clearly due to the defects in the vehicle as well as sub -standard parts.
REGARDING the issue of who was driving the vehicle at the time of accident, complainant No. 1 submitted that he never denied that he was not driving but as it was a long drive, it was taken over by driver Joseph in between, and that the driver was on wheels at the time of accident. In the cross -examination he stated that he was driving the vehicle, which was mentioned in the interim order on that day, but detailed statement was not recorded under his signature and hence it cannot be considered as a signed statement on Oath and this Commission cannot take it as evidence.
A mere say of Mr. Vijay Sethi that he deputed Mr. Rahul Khullar, the then Regional Service Engineer of J.K. Tyres, and that he examined the tyre in question and reported that it seems to have been damaged due to external injury caused by some sharp object, cannot be taken as evidence. This evidence cannot be accepted because Mr. Khullar''s report was not produced nor was he cross -examined. Lastly, it is submitted that they had not distorted the job cards as alleged by the opposite parties, it is only their inferences drawn from the job cards and narrations thereof has been produced with different colours of ink to distinguish them to make it easy for the Commission.
IT is vehemently argued by the leaned Counsel that the accident of the said vehicle on 16.7.1994 took place due to defects in the vehicle which were as a result of defective vehicle which could not be rectified due to negligence of O.Ps., who assured the complainant No. 1 that the said vehicle was very safe to take long journey knowingly fully well that it had uneven wearing of front tyres and other inherent defects.
LEARNED Counsel also argued on behalf of complainant No. 2 that due to the accident, when the vehicle turned turtle'', Mr. Manjit Singh Dua''s arm was pushed out and got brushed with the road which led to crushing, brushing and perishing of all the muscles, arteries, veins and nerves of right fore arm with fractures of the elbow due to the accident. Thereafter, he developed very serious complication which in medical term is called Acute Respiratory Distress Syndrome commonly termed as ARDS which usually occurs when there are "Crush injuries" involving long bones. His arm was operated time and again and he was given 15 blood transfusions. Due to these blunt injuries in the said accident, complainant No. 2 is unable to work for many days. He had to spend enormous amount of money for the hospitalization, etc. and it is urged that his prayer of claim be awarded.
LEARNED Counsel for O.P. No. 1 - Mahindra and Mahindra Ltd. submitted that this complaint should be dismissed with heavy cost because the complainants tried to abuse the process of Court by making false statements and withholding evidence. Learned Counsel''s arguments are as follows: (a) O.P. No. 1 filed a reply to the complaint along with Annexure -D, which has job card history of Complainant''s Armada vehicle. The complainant referred to the same Annexure - D, which he did not deny or refute the chart showing the nature of complaints, action taken and the technical remarks made therein, (pg. 134, 135 of Vol -I). In a rejoinder dated 28.11.2001, which has been filed by the complainant after more than 5 years and 4 months, he relied on the same Annexure -D, but shockingly, the affidavit of evidence of Mr. M.S. Dua, witness for the complainant purportedly distorted the contents of aforesaid Annexure - D primarily to mislead the Commission by making their own additions and deletions thereto. In cross -examination, when Mr. Dua, was confronted with the chart showing alleged additions and deletions (Annexure -1) by the complainant, he admitted that he had no personal knowledge. Notwithstanding the same, Annexure - D has been filed with written synopsis dated 1.1.2007 by the complainant, highlighting vast number of deletions allegedly concocted by the complainants. This fresh chart is a deliberate attempt of the complainant to mislead the Commission (by showing vast number of additions) which has been annexed to the written submissions as Annexure - 2.
(b) The vehicle is required to have scheduled mileage services under the heading "Jobs Reported", but the entire record of the job cards have been distorted and preventive maintenance check -ups were inflated just to mislead that the vehicle was sent to the workshop so many times. The complainant deliberately and intentionally added and deleted the notings and remarks, which is nothing but fraud played on the Commission. The complainant intentionally deleted the remark "Preventive Maintenance" 17 times; tried to distort and change under the heading "Jobs Reported" appearing in Annexure - D for 17 maintenance operations where he inserted the word "defect" forcibly between the "jobs" and the word "Reported" so as to give a misleading and distorted impression that the jobs reported were actually defects done and not part of the preventive maintenance operations.
(c) Besides, the scheduled visits, the vehicle visited the service station rarely on 5 occasions in a period of 2 years of use of the vehicle primarily for a promised replacement of small warranty part or for cleaning of pre -cleaner which driver had failed to do. Under the heading Special Remarks'', the word "minor" related to adjustments carried out as no parts were replaced has also been deleted 30 times. Whatever minor check -ups that were required to be done were all carried out and the vehicle was returned back after service on the same day and at no time there was a whisper of manufacturing defect of the vehicle by the complainant. Complainant reported 30 symptoms noticed in 2 years of use and for all the 30 symptoms of minor adjustments, complainant added the word "defect". In this manner, the complainant proceeded to label 47 symptoms of efficient Preventive Main -tenance Service provided by P.P. No. 2 as "Defects".
It is submitted that general preventive maintenance is necessary and Rule - 31, Table -J of Motor Vehicle Rules also recognizes such general day -to -day maintenance and periodical maintenance as necessary part of the vehicle maintenance. (d) Complainant deliberately deleted the reference to letter dated 19.7.1994 made under the heading "special remarks" against job card dated 14.7.1994 in relation to the front tyre wear. This has been done in order to obliterate the reference to letter dated 19.7.1994 which clearly proves that the tyres had not become bald and did not suffer from any alleged defect and therefore did not need any change.
Complainant alleged that the tyres were bald in his letter dated 1.7.1994 and reply dated 19.7.1994. In the brief synopsis filed in the year 2007, 13 years after the date of 19.7.1994, the complainant ignored to deal with the contents of letter dated 19.7.1994, since it is evident from his letter dated 1.7.1994 that the tyres did not need change prior to alleged accident, being Not Bald''. Hoping this would be overlooked by the Commission, the complainant had cleverly mentioned regarding tyres "Becoming Bald" instead of "Become Bald". (e) The complainants alleged that bearings of front wheel were becoming defective/broken, time and again, but intentionally never disclosed the contents of letter dated 19.7.1994 of O.P. No. 2 who advised the complainant in their letter that he should slow down the vehicle over bad roads to avoid kingpin and uneven wear. The complainant has not disclosed the fact that he followed the advice given by O.P. No. 2 and that by taking requisite proper care, there was no breakage of kingpin till the filing of the complaint, 9 months later. Thus the record itself shows that there is no defective part in the vehicle.
(f) Dr. Pawan Goenka, General Manager of Research and Development of O.P. No. 1 in his affidavit by way of evidence, explained that the extent of impact or load on the vehicle is an external factor and also external to the design of the vehicle itself with regard to kingpin load as per the standards of safety.
(g) Reference to interrogatory No. 2 and part of the reply, Mr. Vijay Sethi of M/s. J.K. Tyres was made but reference to the weakening of the tyre body has not been made. These interrogatories and replies are read as under. To a question to what will happen to the tyres if:
(i) Tyres are over inflated of specifications?
(ii) Tyres are under inflated of specifications?
(iii) Tyre pressure is strictly maintained as per specifications?
Ans: "At the very outset, I say that it is very important for the owner/driver of the vehicle to check tyre inflation pressure regularly. Inflation pressure of tyres has to be maintained by the owner/driver in accordance with specifications recommended by vehicle manufacturer. 2.1 ............................ 2.2 ............................ 2.3 I say that when the customer maintains inflation pressure as per specifications recommended by vehicle manufacturers, it results in correct profile of tyre for full tread contact with the road and optimum tyre performance."
"Q.3 Is it correct that in case of under inflation or over inflation of tyre, side walls of tyres will be weakened? Ans. Both under inflation and over inflation will induce undue stresses on the tyre including the sidewall. Under inflation is considered more detrimental for tyre performance vis -a -vis over inflation. It is therefore very important for the owner/driver of the vehicle to check tyre inflation pressure regularly as per recommendations of the vehicle manufacturers. As stated above vide points 2.1 and 2.2 under inflation or over inflation can lead to following symptoms: - Makes them more vulnerable to impact damage and weakening of the tyre body. - Excessive tyre deflection and heat buildup, running the risk of failure. These two symptoms are the direct result of the extent of under inflation or over inflation of tyres."
The complainants have distorted the reply of Mr. Vijay Sethi (interrogatory No. 2.1 relating to over inflation resulting in weaking of tyre body) to allege and conclude that the vehicle was defective which resulted in weakening of tyre and the accident in question. OP. No. 1 vide letter dated 15.6.1994 advised the complainant, which is as follows : "On tyre wear, we would like to reiterate that in daily checks given in the operator''s manual tyres have to be looked at for correct pressure..."
"Any uneven tyre wear noticed by looking at the tyres... must be got attended to immediately to avoid consequences of tyre life being lost quickly........ The importance to be given to such points is reflected in our stressing daily check..."
"Kindly confirm that your driver has been adhering to above....."
Complainant No. 1 admitted the checking of tyres vide letter dated 1.7.1994 and stated as follows: "I always drive the vehicle myself and I myself is very particular about the daily checks of the vehicle and about all leaks and tyre pressure of front and rear wheels. As whom we found the fast wearing of both front tyres, we immediately brought it to the notice of your service centre."
(h) In his letter dated 16.7.1994, the complainant referred to "some others" i.e., about passengers travelling in the vehicle at the relevant time. Although letter dated 16.7.1994 makes it clear that the other passengers were a driver, Mr. Munshi Joseph and Veenu Sehra, who were employees of complainant No. 1, which only proves that the usage of vehicle was for hospital purpose. The vehicle was purchased for commercial purpose for the use of his hospital. The letters of recommendation for allocation from former President of India Shri Giani Zail Singh and the certificate of State Bank of Indore show that it is out of turn allotment for commercial use of the hospital and hence the complainant cannot be said that he is earning his livelihood from the vehicle when he has two hospitals and many vehicles.
(i) Mr. Rahul Khullar who inspected the tyre on behalf of J.K. Tyres stated that "In case of a new tyre of aforesaid size in question, the fabric/steel of the casing can only be exposed by the wear of the tread and additionally the under tread. This means that the non skid depth (10mm plus or minus 0.5 mm.) is worn out completely and there is no non skid depth (tread depth) remaining in the tyre which is commonly referred to as bald".
"I say that fabric/steel of the casing can, therefore, only be exposed after complete wear of the non skid depth and under tread rubber i.e. in this case 10mm plus minus 0.5mm and 2.5 mm plus minus 0.5mm. Until the casing of the tyre stands exposed, the tyre would be regarded as being in good and sound condition."
Mr. Vijay Sethi who is the General Manager of J.K. Tyres, clearly in his affidavit stated that the tyre in question had adequate tread rubber for safe and sound operation and concluded that the external injury on the tyre had caused through cut on side wall of the tyre as found by Mr. Khullar. Rule 94 of the Central Motor Vehicle Rules, reads as under: "94. Conditions of tyres: (3) For the purpose of Sub -rule (2), a tyre shall not be deemed to be of good and sound condition if - (i) any of the fabric of its casing is exposed by wear of the tread or by any unvulcanised cut or abrasion in any of its parts; or"
(j) It is submitted by the learned Counsel that the evidence affidavit of Dr. Pawan Goenka, General Manager of Research and Development was filed, wherein SKF design methodology was explained with regard to king pin load and the high standard of parameters being used for king pin even beyond the standard set by SKF method for factors of safety. In his affidavit he also explains that the extent of impact or load on the vehicle in day -to -day running is an external factor and also external to the design of the vehicle itself. The allegations of the complainant regarding repeated breakage of king pin bearings, repair of suspension of vehicle and tyre inflation pressures are not known to the opposite parties except what they have dealt with in job cards. The complainant reported only front left tyre wear to O.P. No. 1 for the first time vide job card of 21.4.1994, six months after date of purchase of vehicle, which was due to king pin bearing breakage. This also proves that tyre inflation pressures were being maintained correctly as per correct specifications in Operator''s Manual since the balance tyres were not affected with any uneven wear.
(k) An allegation has been made based on typographical mistake in Operators'' Manual filed by O.P. No. 2, which is of no consequence whatsoever. The complainant himself stated regarding tyre inflation pressure. He was undertaking daily checks in the condition of the tyres as per Operator''s Manual, which was admitted in letter dated 1.7.1994. If that is so, the specifications of tyre inflation pressures in Operator''s Manual supplied to them would not had any problem.
(l) It is averred by the learned Counsel that during cross -examination, complainant No. 1 tried on 32 occasions to evade and avoid answering questions, which were put to him, by stating that he does not remember; on 6 occasions he stated that he does not recollect; on 15 occasions he answered the queries by stating that it is as per record; on 11 occasions he stated that he could not answer correctly, since he was stun and shocked; on 6 occasions he admitted that inaccuracy in the documents filed by him was on account of typing error/over sight, etc. During cross -examination, complainant No. 1 has referred to 35 to 40 villagers who helped him at the site of the accident. At no time, complainant has brought forward information about any single person who was at the site of the accident to corroborate his statement. Various questions as to whether he has approached the Insurance Company, what is the coverage and relevant terms and conditions of the third party policy and other related questions were put to him in the interrogatories, which were simply replied by the complainant stating that "interrogatories in question have no consequence to the matter in hand, thus need not be replied". It is how the complainant avoided any discussion on the insurance policy.
(m) An affidavit was filed by V. Sivaramkrishnan, Manager (Radial -Design) of J.K. Tyre, who was working in the Safety System Department, wherein it is stated as under: (2) that the Radial Tyre is a composite material mainly consists of Rubber, Nylon or Polyster Carcass, Steel Belts and Steel Beads;
(3) that re -inforcing material, which provides the basic strength to carry load and to act as a Pressure Vessel is from Nylon Carcass, Steel Belts and Steel Beads;
(4) that for any given tyre size, the maximum permissible load and inflation pressure are determined by International Standards like ETRTO, JATMA, ITTAC and BIS, etc;
(5) that while finalizing Design of a particular Product (Tyres and Tubes), we ensure that a minimum safety factor is met for re -inforcing materials and the Safety Factors used are Nylon Carcass -Min, Steel Blets - 6.7 Min. and Steel Beads - 5 Min;
(6) that while producing tyres a Safety System procedure is followed on sample basis and we do "Breaking Energy Test" as laid down BIS Standards and the test is done once in six months on regular basis;
(7) that the maximum standard that is required as per BIS for the Tyre Size 195/70 R 15 is 3000 kg./cm. and it is further confirmed that during all tests this specification is regularly met."
In the affidavit of Samarkumar, who was working as Deputy General Manager (Quality Systems) with O.P. No. 1, it is stated that the selections process of the tyres adopted by them for Armada vehicles "was based on the ITTAC Manual published by the Tyre Manufacturers Association and the rating of the load on tyres as specified therein and as given below: Axle Load of Max.tyre load Reccom. Inflation Vehicle (Kgs) Pressure (Kgs) (Kg/cm2) FAW 860 460 1.4 RAW 1280 630 2.5"
, In his affidavit he further stated that it is highly impossible and improbable that tyres of Armada vehicles to burst on their own, if maintained as instructed in Operator''s Manual and unless confronted with outside object. (n) The learned Counsel for O.P. No. 1 contended that the complainant suppressed and inflated all the issues/notings to the job card to his convenience to buffer his case with fraudulent and mala fide intent. The doubtful occurrence of the accident as to the nature and cause of it, and the complainant has not corroborated with material facts to remove the doubts. Except the complainant and his co -passengers, there is no evidence of a single person who witnessed the accident or any expert who has seen the vehicle or policy report giving the details have not been appropriately answered by the complainant. It is submitted that in view of the above false apprehensions, complaint should be dismissed with cost.
LEARNED Counsel for O.P. No. 2 contended that the manner in which the complainant relied upon the accident to the vehicle stating that it turned turtle itself is doubtful if such an incident occurred as claimed, and submitted that: (a) The complainant merely lodged a complaint to the police, but no other evidence has been produced. From a bare perusal of the photographs, it is evident that no serious damage has been caused to the vehicle and the vehicle could not have over -turned. The wind screen is intact, the side foot board, which juts out of the body, is fully intact, even the head lights are also not broken, which clearly show that the vehicle had not met with any accident as alleged by the complainant. The vehicle has eleven glasses, four of each side and one wind screen and two rear glasses. It is submitted that none of the aforesaid stated parts/doors fittings/glasses have stated to have been damaged. This clearly refutes the allegation of the vehicle having turned turtle, if the vehicle turns turtle and is of such magnitude as alleged, would have much more damage, if not to other items, at least to the glasses of the vehicle.
(b) If this accident really took place in the magnitude as alleged, then the other passengers would have suffered from some injuries, which is not the case here. From the nature of injury of complainant No. 2, it does not reflect that it was caused in the accident as alleged. Normally, when the person keeps his arms outside hanging down and the outside vehicle brushes at high speed or if the vehicle is hit against any tree, only then the vehicle could have turned turtle. In the present case nothing as drastic has been described regarding as to how the vehicle actually met with an accident except the word turtle'' is being used by the complainant to make the accident look as fatal one. Further, the learned Counsel submits that the complainant No. 1 concocted the story to claim heavy compensation for the physical injuries caused to complainant No. 2 and fabricated the story of an accident to get double benefit out of this case.
(c) In his affidavit, O.P. No. 2 alleged that major amount of medicines purchase bills (pages 48 to 52 of the complaint) pertains to the date 29.7.1994, whereas complainant No. 2 is alleged to have been discharged after hospitalization for the period 16.7.1994 to 30.7.1994. It is incomprehensible as to how the medicine purchases were done on the penultimate day of the discharge. This is misuse of his professional status as a Doctor to fabricate medicine purchase bills.
(d) The inspection done on the tyres shows that no defect as alleged by the complainant is found. Complainant alleged that tyres were bald, which means it has zero tread depths, whereas inspection indicated that they were not bald but still had a lot of life in them. The tyre wear as indicated in the report (Exhibit RW.1/F) was normally for the mileage.
(e) All four tyres were fitted in the vehicle and one spare tyre was "JK Radial" tyre. As per the purchase receipt produced in the complaint, it is stated that he purchased a tyre of the same make i.e., "JK Radial tyre". If the vehicle met with a fatal accident due to a defective tyre manufactured by J.K. Company, the complainant would not have purchased a tyre of the same make. It only proves that there was no major accident and J.K. tyre burst is a made up story.
(f) Vide letter, dated 21.1.1997, O.P. No. 2 addressed to the complainant enclosing the original receipt of pollution check given by the State Authority, which was done in the presence of the driver of the complainant that pollution was under control (Exhibit RW.1/U). Earlier, pollution check failure as alleged by the complainant has nothing to do with the accident as per the operators manual at page C -38, which clearly spell out the daily checks "Have the air -cleaner checked regularly. A dirty cleaner acts as a choke and causes loss of fuel". These are some daily checks, which are necessary to be done by the complainant, which most likely have not been done at the time of the earlier pollution check.
(g) Vehicle plied 10,638 kms up to 6.4.1994, when the complainant came to O.P. No. 2''s workshop, at which time also, he never reported any problem in the tyres. It was only on 21.4.1994 at 12,000 kms, he brought the vehicle and reported tyre wear for the first time. This was promptly attended to by O.P. No. 2 by replacing the bottom LHS king pin bearing. There was no complaint of any manufacturing defect till that date by the complainant No. 1.
(h) Even after filing the complaint in the year 1995, the complainant had been writing to O.P. No. 2 and he also took the vehicle to O.P. No. 2 on 23.1.1996 for check up of the wiper and after minor adjustment every thing was found o.k. On 24.1.1996, complainant No. 1 wrote to O.P. No. 2 seeking to know the cost involved in an engine overhaul, which was replied to vide letter dated 25.1.1996 and an estimate for engine overhaul was given to the complainant. As on that date, the vehicle already covered 38,000 kms. In the said letter, O.P. No. 2 brought it to the notice of the complainant that the vehicle was not coming to the service station in time for engine oil and oil filter change as well as an oil top ups (Exhibit RW.1/J). To this, complainant replied vide letter dated 27.1.1995 denying that the vehicle was not being sent, and on the other hand, he alleged that although he has been sending the vehicle, the same was being returned unserviced by O.P. No. 2.
(i) On 23.7.1996, complainant wrote a letter stating that there has been short circuit in the wiring of the vehicle, which needs immediate checking, which has been immediately attended to, and driver Vijay Adhikari of the complainant signed as satisfied'' regarding the operation of the vehicle. Subsequently, O.P. No. 2 by letter dated 26.7.1996 (Exhibit RW.1/Q) informed the complainant that the cost of the repairs would be Rs. 800 (Exhibit. RW.1/U). To this, complainant replied vide two different letters on 30.7.1996 blaming O.P. No. 2 that the said short circuit was caused due to non -usage of correct fuse and that O.P. No. 2 is responsible for the same.
(j) Learned Counsel stated that even after giving best of services to complainant No. 1, the list of grievances in the form of letters and magnifying on every small issue has been a habit of complainant. For example, on 1.3.1997 that his vehicle was denied servicing upon reporting of an engine oil leak. O.P. No. 2 replied to complainant on 3.3.1997 and clarified that the vehicle was not attended to as the driver has brought the vehicle after the working hours i.e., after 5.30 p.m. Vide letter, dated 12.4.1997, although an appointment was given for 27.4.1997 for inspection checking, for oil leakage, the complainant never brought the vehicle for inspection (Exhibit RW1/W).
(k) Learned Counsel submitted that the timely service and repairs were done, complainant was also satisfied but he is a habitual to complain as he would blame and wrote a threatening letter alleging that the vehicle is suffering from manufacturing defect and that he would drag O.P. No. 2 to Consumer Court to teach a lesson. It is urged that the complaint be dismissed as it is frivolous, baseless and without any merits.
Affidavits of evidence have been filed by complainant, Mr. Meenu Sehra, Mr. Amarjit Singh, Mr. D. Prithpal Singh, Mr. Manjit Singh, Mr. Samarkumar, O.P. No. 1 and OP. No. 2. The Local Commissioner was appointed vide order dated 1.8.2002 for recording evidence and cross -examination of the various witnesses, and the said record is placed on record ( Vol. V). Interrogatories have been filed and complainant, O.Ps. 1 and 2, Mr. Samarkumar Mukherjee, Mr. Vijay Sethi and Mr. N.K. Chhabra have filed replies to the same, which are also placed on record.
WHILE hearing the matter, few key issues that need to be answered are raised as to whether: (a) the complainant No. 1 is a consumer or not? (b) the complainant No. 2 can be considered as a consumer or not? (c) there is any manufacturing defect in the vehicle ? (d) warranty of the vehicle covers the tyres? (e) the alleged accident of the vehicle is genuine?
AS we came to the conclusion that the complaint fails on merits and the reasons for the same are as follows: (a) As far as issue ( a'' ) of the above issues framed is concerned, in our view, this complaint is maintainable under the Consumer Protection Act and the complainant No. 1 is a consumer.
(b) As far as issue ( b'') is concerned, we conclude that complainant No. 2 cannot be considered as a consumer'' under the Consumer Protection Act. The complainant No. 2 only supported whatever complainant No. 1 stated. We have gone through the affidavit by way of evidence filed by Sri Manjeet Singh, complainant No. 2, wherein he narrated the incident of the accident while travelling in Armada'' jeep along with his brother -in -law Dr. Pirthipal Singh Bhandari, complainant No. 1. No where in the affidavit it is stated that he is a joint owner of the vehicle. Complete description of the various surgeries that he has undergone and the medical treatment has been narrated. He also supported the same with various medical bills, etc. His prayer for entitlement of compensation is Rs. 1,50,000 for medical expenses with interest @ 24% p.a. and further Rs. 10,00,000 as compensation with interest @ 24% p.a. i.e., total Rs.11,50,000 with interest @ 24% p.a. has been claimed. Complainant No. 2 is not the owner of the vehicle, but he was only a co -passenger at the relevant time. Complainant No. 2 could have taken the benefit of comprehensive risk insurance, if it is in existence. Repeated questions have been put to complainant No. 1 regarding the insurance policy conditions, he simply denied to part with any information by saying that it is an irrelevant question.
(c) As far a issue ( c'') is concerned, complainant has tampered with the record of job cards produced by opposite parties and very smartly inserted the words that he would prefer to use for his advantage and deleted the words which were to his disadvantage. Tampering of record is nothing but fraud and this Commission cannot entertain the complainant, who place their evidence on fictitious documents. In view of the aforesaid discussion, there is no deficiency in service or manufacturing defect as alleged by the complainant against opposite parties.
The entire complaint is based on the defective vehicle. In addition, the complainant alleged that the vehicle turned turtle mainly due to defective tyre. As far as the manufacturing defect in the vehicle, we do not agree with the said allegations and the complaint fails. (d) Regarding tyre Warranty Operator''s manual makes it clear that the warranty for the vehicle excludes the tyres of the vehicle, which are warranted by the tyre manufacturers. The complainants did not implead the tyre manufacturer -J.K. Tyres as a party. As stated by M/s. J.K. Tyres Limited the tyre burst has been caused by an external injury due to some sharp object and this cannot be first of all held as a defective tyre. The tyre wear was not reported till the vehicle had covered as much as 12,000 kms. Complainant No. 1 continued to drive the vehicle in spite of knowing that there was a tyre wear by aggravating the same due to his own negligence. Contrary statements based on inconsistent letters dated 9.5.1994 and 6.6.1994, where it was admitted that the tyre wear of left front tyre was at around 11,000 kms and that it was wearing out at a fast rate. His letter, dated 1.7.1994 alleges that both the front tyres of the vehicle have "becoming bald" at 14,000 kms, whereas he alleged that they had "become bald" at 14,000 kms to the opposite party. If he is aware of the tyres becoming bald or become bald at any given stage, it is the safety hazardous, if it is to be believed, then he should not have driven the vehicle at all till they were replaced.
HIS own statement that he had changed the tyres after the accident, whereas he has admittedly replaced only one, which is also established from the claim he made, where the cost of only one tyre was mentioned. The above discussion has only been added to show the conduct of the complainant No. 1, who is trying to exaggerate concocted stories, which suits him. Unfortunately for him, we are able to see the contradictions from the face of the record itself. In our view, tyre warranty does not fall under the manufacturers domain. The complaint on defective tyres could only be claimed against the tyre manufacturers, who are not a party to this complaint. The extracts of the tyres warranty are given below: "Warranty for 12 months (Except tyres and batteries) originally supplied by us, which is within 12 months) This warranty shall not apply to and we shall in no way be liable for any vehicle which shall have been repaired outside an authorised Mahindra Service Station or which has been altered or modified or built upon in any way or which has been subject to misuse, negligence or accident. This warranty is expressly in lieu of all other warranties expressed or implied and of all other obligations or liabilities on our part, if any, and we neither assume nor authorize any other person to assume for us any other liability in connection with the sale of our vehicle Limitations of Warranty Certain limitations wherein the warranty does not apply are listed below: Tyres, Tubes, Battery and Proprietary items or special equipment if any, are covered by the respective manufacturer''s warranty. In case of complaints, our authorised Mahindra'' Dealer will assist you in taking up your claim on which the final decision will be theirs. Repairs required because of accident, misuse, abuse or neglect. Tyre Warranty The tyre manufacturers warrant your tyres. Our dealer will be pleased to assist you in taking up the tyre complaint with the tyre manufacturers."
WE place reliance on two judgments decided by the Apex Court in Maruti Udyog Ltd. v. Susheel Kumar Gabgotra, II (2006) CPJ 3 (SC)=2006 (4) SCC 644 and Bharati Knitting Company v. Dhl Worldwide Express Courier Division of Airfreight Ltd., II (1996) CPJ 25 (SC)=1996 (4) SCC 704. In Maruti Udyog Ltd.''s case, the Supreme Court allowed the appeal of the manufacturer holding as under: "that the warranty conditions specifically stating that the only obligation is to repair or replace at its sole discretion any part shown to be defective with a new part of the equivalent at no cost to the owner for parts or labour, when the manufacturer acknowledges that such a defect is attributable to faulty material or workmanship at the time of manufacture and the owner is responsible for any repair or replacement which are not covered by this warranty."
THE Apex Court in both the above cases held that liability is limited by the warranty terms. As per the warranty terms given below, the tyres supplied with the car by O.P. No. 1, does not carry warranty, but it would be the liability of tyre manufacturers to assist the complainant.
THE evidence produced by the tyre expert Mr. Vijay Sethi of J.K. Tyres in his affidavit categorically stated that the tyre was not worn out taking into consideration the tyre tread/depth and stated there is no issue of safety. Mr. Vijay Sethi, further stated that it was an external injury on the tyre, which caused the cut on side wall of tyre. Technical expert, Mr. Rahul Khullar, who inspected the tyre in question by using non -skid depth gauge stated that the tyre in question was not bald and was cut and in sound condition prior to the alleged accident.
CORRECTIVE actions are needed for all makes of tyres and wheel alignment and uneven wear of the tyre is a phenomenon and also could be due to bad driving of the vehicle. (f) As far as issue (e) is concerned, complainant himself represented before this Commission on 1.8.2002 stating that he was driving the vehicle at the time of accident, so that the complaint would not be dismissed on that ground, but thereafter, he conceded that the vehicle was being driven by driver Joseph. It is strange that the complainant shifts his stand regarding the vehicle as to who drove the vehicle at the time of accident. This inconsistency and contradictory statements made in this complaint only create doubt about the nature of the accident itself.
IN the police station Farah complainant vide letter dated 16.7.1994 reported the accident and injury to complainant No. 2 without making allegation against any person and without asking for any investigation. This was on the principle of "No Fault" under Section 140 of the Motor Vehicles Act, 1988, where complainant No. 1 being the owner of the vehicle is the one who is liable to pay compensation in respect of disablement caused to complainant No. 2 being a fixed sum of Rs. 25,000. The record does not show the complainant No. 1 had paid any amount to complainant No. 2.
THE accident vehicle was not inspected by any authorised persons, who can determine the cause of the accident. Complainant stated that the vehicle turned turtle'' due to accident, but strangely even the glass panels were not broken if it is such a fatal accident. Considering the fact no photographs of the accident are produced to prove there was an accident have been produced as evidence; no expert has inspected the vehicle to prove the cause of accident; no evidence of witnesses who have seen the accident has been produced although it is stated that many people were there and the entire complaint is based on a police report made to the police by the complainant, who also did not inspect the vehicle, we do not find that it is a genuine case of accident. On going through all these, one gets a feeling that complainant No. 1 has created whatever evidence to show that the cause of accident was due to manufacturing defect of the tyres just to extract money from the opposite parties, not only for himself but also for the maintenance of complainant No. 2, and for his ongoing medical treatment for the injuries he sustained in the alleged accident.
IN our view, this complaint is misconceived and the allegations of poor quality of tyres, defective vehicle, poor maintenance by O.P. No. 2, are not justified. More than that, it is a mischievous complaint filed only to extract huge amounts from the opposite parties. Complainant No. 1 has been going to O.P. No. 2 even after the accident for repairs/servicing and the fact that he went and purchased J.K. Tyre, which all indicate that he still has confidence in the Opposite Parties and also J.K. Tyre manufacturers. If such major accident really took place, one does not go back to the same people for fixing the tyres of the vehicle and still purchase a tyre from the same tyre manufacturer. Looking at the photographs placed by complainant No. 1, we are unable to concede how this jeep still can look normal after the alleged accident. Hence, the vehicle turning turtle'' is a concocted story of accident. Complainant No. 1 never pursued the police authorities to investigate the matter nor did he provide any evidence to prove as to how the accident took place and who were the eye -witnesses. In our view, there was no such accident took place as projected by the complainant and it is a concocted story. Further, allegations that this accident has been caused by defective manufacturing of the vehicle, defective tyre wear and caused by poor maintenance by O.P. No. 2 have not been proved beyond doubt. To get windfall benefit by filing the complaint for himself and also for his brother -in -law, complainant No. 2, and to get all his medical/hospitalization expenses completely be paid by the opposite parties seems to be the main motive in this complaint and we have scant respect to such complainants/consumers.
UNDER Consumer Protection Act, only complaints of genuine consumers would get relief and not of those who file false complaints based on concocted stories to prove allegations against opposite parties. In view of the aforesaid discussion, we dismiss the complaint with cost of Rs. 10,000. Complaint dismissed.