IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 RSA.No. 607 of 2008 ----------------------- AS.42/2003 of PRL.SUB COURT,THALASSERY OS.586/1999 of ADDL.MUNSIFF'S COURT, KANNUR .................... APPELLANT/APPELLANT/PLAINTIFF --------------------------------------- V.J. SEBASTIAN, S/O. JOSEPH, AGED 62 YEARS PROPRIETOR, IMPERIAL MOTOR SERVICE, TALIPARAMBA, KANNUR, RESIDING AT TALIPARAMBA AMSOM DESOM. BY ADV. SRI.M.C.SEN (SR.ADVOCATE) SRI.V.C.JAMES RESPONDENTS: RESPONDENTS/DEFENDANTS --------------------------------------------------- 1. M/S.KAMATH TYRES, THALIKAVU ROAD, KANNUR - 670 001, REPRESENTED BY ITS MANAGING PARTNER, SUDHAKAR KAMATH, S/O.KAMATH, AGED 32 YEARS, M/S.KAMATH TYRES, TALIKKAVU, KANNUR. 2. M/S.APPOLO TYRES, CHALAKUDI, THRISSUR, REPRESENTED BY ITS MANAGING DIRECTOR. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. --------------------------------------------------------- R.S.A. No 607 of 2008 --------------------------------------------------------- Dated this the 29th August 2008 JUDGMENT This is appeal filed by the plaintiff in O.S. No 586 of 1999 on the file of the Munsiff's Court, Kannur against the concurrent verdict passed by the courts below dismissing his suit for damages. The suit was filed by the appellant claiming damages from the respondents, inter alia, on the allegations that he is a fleet owner who used to purchase Apollo tyres from the first defendant; that he purchased 24 Apollo tyres during the period from 16.10.1996 to 21.12.1996; that out of the 24 tyres so purchased 16 tyres were found defective and inferior in quality and got damaged before the guarantee period assured by Apollo Tyres; that the tyres burst during the journey due to air complaint and the plaintiff was constrained to stop service of vehicles for so many days; that the defendants are liable to replace those tyres and also compensate the loss sustained to the plaintiff; that notice was issued to the first defendant on 16.04.1997; that thereafter representative of the defendants examined the defective tyres and promised to take steps to RSA 607/08 2 compensate the plaintiff; that thereafter plaintiff issued lawyer notice to the defendants, but without compensating the plaintiff the first defendant filed O.S. No 348 of 1998 for realisation of the price of the tyres purchased from him; that complaint filed by him before the Consumer Disputes Redressal Forum has been dismissed as the purchase was for commercial purposes and that therefore he has to be granted decree for recovery of damages to the tune of Rs 50,000/-. 2. First defendant, who is the dealer of the tyres, contended that there was no defect for the tyres as alleged and the tyres were not of inferior quality; that there was no guarantee for tyres but however in order to maintain good relationship with customers the manufacturer of the tyres used to replace the tyres if it is found that there is manufacturing defect; that on getting notice from the plaintiff the authorised representative of the second defendant visited the plaintiff's premises and found that the tyres are not having any manufacturing defect and most of the tyres were also found to have been resoled; that the defendants are not liable to replace the resoled tyres and that the suit has been filed without any bonafides to counter the claim advanced in O.S. No 348 of 1998 for price of the RSA 607/08 3 tyres purchased by the plaintiff on credit. 3. The second defendant also filed written statement contending that the second defendant company is not giving unlimited warranty to their products as life of tyres depends on various factors such as inflation, deflation, road condition, overload, mechanical condition of the vehicle etc.; that the second defendant is giving warranty only for manufacturing defect; that as per the warranty policy a consumer who feels that the tyre has been damaged due to manufacturing defect has to submit the tyre to the manufacturer through the dealer for inspection and if it is found on inspection that the tyres have been damaged due to manufacturing defect they will replace the same; that the plaintiff has not so submitted the allegedly defective tyres for inspection; that however on getting notice from the plaintiff second defendant deputed their Service Engineer to inspect the tyres and found three or four tyres lying in the premises of the plaintiff which were retreaded; that there was no occasion for the representative of the second defendant to give any assurance to the plaintiff to pay damages; that in fact there was no manufacturing defect for the tyres and the plaintiff is not entitled to any relief. RSA 607/08 4 4. The above suit was tried jointly with O.S. No 348 of 1998 filed by the first defendant for recovery of amounts due from the plaintiff towards value of tyres purchased by him on credit. In both the suits necessary issues were framed by the trial court and considering the pleadings of the parties and the evidence adduced at trial which consisted of oral evidence of P.W.1 and D.W.1 and documentary evidence, Exts. A1 and A2, B1 to B3 and C1 and C1(a) the trial court decreed O.S. No 348 of 1998, but dismissed the plaintiff's suit, O.S. No 586 of 1999. The plaintiff filed appeal against both the decrees before the first appellate court as A.S. Nos 42 of 2003 and 58 of 2003 of which A.S. No 42 of 2003 relates to the suit O. S. No 586 of 1999 wherein he was the plaintiff. The first appellate court re-evaluated the entire evidence and concurring with the findings of the trial court, dismissed both the appeals. He thereupon filed R.S.A. No 638 of 2008 assailing the decree passed against him in O.S. No 348 of 1998 which was confirmed in A.S. No 58 of 2003 and that was admitted as there existed substantial question of law for consideration. 5. In this R.S.A which arises out of the judgment in A.S. No 42 of 2003 passed confirming the decree of the trial court in O.S. No RSA 607/08 5 586 of 1999 it is vehemently contended by the learned counsel for the appellant that the question as to the defect that existed in the tyres is inter-linked with the dispute involved in R.S.A. No 638 of 2008 and that therefore this R.S.A also be admitted to be heard along with that appeal. I see absolutely no merit in the contention advanced. In R.S.A. No 638 of 2008 the dispute involved is the liability of the present appellant to pay price of tyres purchased on credit from the first respondent whereas in this R.S.A the question that arises for consideration is as to whether the tyres manufactured and supplied; by the second respondent through the first respondent dealer were having any manufacturing defect which rendered the tyres not worthy of use and thereby the appellant-plaintiff suffered damage. 6. It is seen from the judgments of the trial court and the first appellate court that Ext C1 report has been filed by advocate commissioner who inspected the tyres with the help of an expert who is a retired Assistant Depot Manager of the tyre depot of K.S.R.T.C. They verified all the sixteen tyres from the plaintiff's premises as pointed out by the plaintiff and the expert observed that the original life of tyres is exhausted and it is again retreaded. He also reported RSA 607/08 6 that all the above tyres were in good condition till its original life got exhausted by use. He also opined that if it were otherwise retreading would not have been possible. He also noticed that there was no ply separation on the above tyres and also opined that if there was any ply separation or other manufacturing defect the tyres would not be used for retreading but in the instant case all the 16 tyres were found to have been retreaded. He also noticed that the retreaded tyres were found to have some defect in retreading due to careless handling. The court below found that no valid objection had been raised by the plaintiff to Exts. C1 and C1(a) reports. The only objection was regarding the qualification of the expert who examined the tyres. But such an objection had not been raised when the commissioner visited the premises along with the said expert. It is also worthy to note that by experience those who are regularly using vehicles will be able to understand the manufacturing defect in all tyres and defects which have developed otherwise. The plaintiff also did not want to assail Exts.C1 and C1(a) by examining the commissioner and the expert. I am unable to say contrary to the opinion expressed by the courts below that a retired Depot Manager of the tyre shop of the K.S.R.T.C who is regularly handling tyres is RSA 607/08 7 not a person who is competent to examine and opine about the manufacturing defect of tyres. Further the fact that the plaintiff has retreaded the tyres after exhausting the use of the original tyre shows that the tyres were not having any manufacturing defect at all. As rightly observed by the courts below, appellant has filed the suit only as a counter blast to O.S. No 348 of 1998 filed by the first respondent dealer claiming price of tyres purchased by the appellant- plaintiff on credit. There is absolutely no merit in this R.S.A and no question of law much less any substantial question of law arises for consideration by this court in this R.S.A. In the result, refusing admission I dismiss this R.S.A in limine. Sd/- K.P. BALACHANDRAN Judge 29/08/2008 en [true copy]