IMPORTANT POINT
Manufacturing defect in goods is to be tested in a laboratory as provided u/s 13(1)(c) of C.P. Act.

M.V. Viswanathan, Judicial Member—Appellant was the first opposite party and respondents 1 and 2 were the complainant and second opposite party in OP. No.2/03 on the file of CDRF, Palakkad. The complaint in OP.2/03 was filed alleging deficiency in service and unfair trade practice on the part of the opposite parties 1 and 2 with respect to the sale of a defective tyre to the complainant. The complainant alleged manufacturing defect in the said tyre with Serial No.57103622729 which was purchased by the complainant from the second opposite party/dealer. The first opposite party is the manufacturer of the said tyre. Thereby, the complainant prayed for replacement of the defective tyre by a new tyre and also for compensation for the inconvenience and mental agony suffered by the complainant.

2. The first opposite party (the manufacturer of the tyre) filed written version denying and disputing the alleged unfair trade practice and deficiency in service. It was contended that the complainant is not a consumer coming under the purview of the Consumer Protection Act and so complaint is liable to be dismissed as not maintainable. It was further contended that there was no manufacturing defect in the said disputed tyre and the damage to the tyre occurred due to the neglected use of the same by the complainant. The first opposite party/manufacturer had also requested the Forum below to subject the said tyre for expert examination. Thus, the opposite party prayed for dismissal of the complaint in OP.2/03.

3. The second opposite party, the dealer of the said tyre remained absent.

4. Before the Forum below, the complainant and the first opposite party filed proof affidavit in support of their case. Both parties adduced documentary evidence. On an appreciation of the evidence on record, the forum below passed the impugned order dated 31st August 2004 directing the opposite parties 1 and 2 to replace the defective tyre by a new one or to pay Rs. 7650/- to the complainant towards the price of the tyre within a period of one month from the date of communication of the order. The opposite parties 1 and 2 were made jointly and severely liable to replace the defective tyre or to pay Rs.7650/- to the complainant. There is also a default clause to pay interest at all the rate of 9% per annum in the event of failure to comply with the said order. Aggrieved by the said order, the present appeal is preferred by the first opposite party therein.

5. When this appeal was taken up for final hearing, there was no representation for the respondents. We heard the learned counsel for the appellant/first opposite party. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He pointed out the failure on the part of the complainant to prove the alleged manufacturing defect in the disputed tyre. The appellant has also challenged the impugned order passed by the forum below on the ground that the forum below has not considered the provisions of Section 13(1)(c) of the Consumer Protection Act, 1986. Thus, the appellant prayed for setting aside the impugned order passed by the forum below.

6. The points that arise for consideration are:-

1. Whether the first respondent/complainant can be considered as a consumer as defined under Section 2 (1)(d) of the Consumer Protection Act, 1986?

2. Whether the first respondent/complainant has succeeded in establishing his case that there was manufacturing defect in the tyre bearing Serial No.57103622729 which was purchased from the opposite parties 1 and 2 in OP.2/03 on the file of CDRF, Palakkad?

3. Is there any legally sustainable ground to interfere with the impugned order dated 31.8.04 passed by CDRF, Palakkad in OP.2/03?

7 Points 1 to 3:-

There is no dispute that the first respondent/complainant purchased the disputed tyre bearing Serial No. 57103622729 from the second opposite party, the Hill Gover Tyres, the dealer of the MRF tyres. Admittedly, the appellant/first opposite pa