SUKHPAL AND CO Vs. RAMESH KUMAR

JUDGEMENT

(1.) District Forum, Bathinda vide order dated April 4,1997 allowed the complaint filed by Ramesh Kumar and directed the opposite parties - the dealer as well as manufacturer of the truck tyres, to replace the remaining tyres and flap free of costs and to refund Rs.1,100/- already charged for replacement of other tyre and to pay costs of Rs.1,000/-. The complainant purchased one Ceat tyre, one tube and one flap from M/s. Sukhpal and Company - opposite party No.1 for Rs.8,200/- vide Cash Memo Ex. A-2. The complainant again on December 29,1993 purchased two more Ceat tyres, two tubes and two flaps from opposite party No. Ion payment of Rs.16,700/-vide Cash Memo Ex. A-3. After about a month of the purchase of the tyres and tubes, the defect having occurred therein the opposite party No.1 was approached for replacement of the tyres and tubes referred to above. Same were sent by the opposite party No.1 to the manufacturer - M/s. Ceat Limited. Two of the tyres and tubes were replaced on charging Rs.1,100/- from the complainant. However, the other tyre was not replaced, that he approached the District Forum. The stand taken by the opposite party was that the complainant can not be held to be consumer as defined as the tyres and tubes were purchased for being used in the truck plied by the complainant for commercial purposes. As per the terms and conditions of the warranty, the Company was entitled to charge at the time of replacement of the defective goods for wear and tear. With respect to one tyre the plea taken was that there was no manufacturing defect but lock rim was damaged and fitment was also damaged. Hence the claim qua that was rejected. Both the parties led their evidence on affidavits and documents, on the basis of which the impugned order was passed.

(2.) Learned Counsel for the opposite party has argued that the complainant could not be treated as a consumer as the goods were purchased for commercial purposes. This contention in the facts of the present case cannot be accepted. Admittedly there was warranty for replacement of the defective goods within a period of one year. In case of contract of sale of goods accompanied by contract of warranty, it will not be a simple case of sale of goods, but it would also be the case of hiring of services for consideration. For the later portion of the contract the element of commercial activity would be irrelevant. It is only in the case of sale of goods as such that the same were sold for use for commercial activity, the complainant could not approach the Fora.

(3.) Learned Counsel for the appellant has argued that the disputed tyre did not have any manufacturing defect. It was examined by the expert of the Company and as per his report the defect was on account of mishandling in the matter of fitting, etc. This contention could have been accepted if the appellant had produced report of the expert supported by his affidavit. Simple assertion made on behalf of the Company in this respect cannot be accepted. The perusal of the record of the District Forum indicates that no such report was produced. Order of the District Forum also notices this fact. Thus, there was defect in the tyre and it has not been established that it was on account of fitment. The opposite party was duty bound to replace the same and the order passed in this respect is correct.