SRIDHAR BARIK vs CHAIRMAN, TATA ENGINEERING AND LOCOMOTIVE COMPANY LTD.

THIS is an original case. Complainant purchased a Tata Model LPT B/42 Truck Chasis for Rs. 4,02,015/- from Telco on a loan from the Orissa State Financial Corporation which was advanced to him by the corporation as a gesture of goodwill to rehatilitate him after taking a voluntary retirement from service as a Driver from the O.S.F.C. His grievance is he took delivery of the chassis on 28.2.1994 and after body buiilding the same was on road on 4.5.1994. His grievance is an old chassis was delivered to him and secondly the six tyres were totally damaged because of the chassis being kept in the show-room from 7.3.1993 till 28.2.1994 with defaulted tyres and thus by September, 1994 the tyres had become unservicable. He also alleged battery and the two shock abserbers to be defective.

THE Telco took the stand denying any liability for deficiency of service. THEy denied the fact of the truck being kept in the show-room with deflated tyres. So far as defect in the chassis is concerned, they admitted that the gear box cover was broken which they undertook to replace it and also subsequently the same was replaced. As regards the defect in the tyres they relied on Clause 3 of the warranty which said that any part or parts not manufacutred by Telco, the warranty would be applicable only against the manufacturer of these parts. In the present case since tyres were purchased from Birla Tyres, the later would be only liable to compensate but not the Telco. Further, it was urged that any damage to the tyres was only due to normal wear tear. Heard Mr. B.N. Udgata, the learned Counsel for the complainant and Mr. G.B. Jena on behalf of Mr. D.P. Dhal the learned Counsel for the Telco. None appears for Birla Tyres, who have been impleaded as a party at the instance of the complainant vide our order dated 27.8.2002. The service of notice on Birla Tyres vide A.D. received. They are absent, hence set ex parte

From the various allegation in the complaint petition and the nature of defects pointed out by the complainant, we do no find that the vehicle had any major manufacturing defect nor the engine itself. That apart we find the complainant availed the 3rd free servicing by 19.9.1994. By the second servicing on 7.7.1994 the vehicle had run 18,500 kms. as per the case of the complainant. In para-9 of the complaint petition the complainant has given various repair works and amount he spent towards such repair works and purchase of tyres at the costs of Rs. 55,000/- and a new battery amounting to Rs. 4,528.78. Out of these items we only accept the claim in respect of tyres and the battery. The rest of the items in respect of which the complainant undertook the repair works there being small items which needed repair because of normal wear and tear. We have not thought it appropriate to adjudicate the dispute on that.

IN para-8 of the complaint petition, complainant alleged the six tyres and tubes became totally unservicable by September, 1994 i.e. about 6 months from the date of delivery of the chassis. This was brought to the notice of the O.Ps. as is clear from the letters dated 30.9.1994 wherein they informed the complainant that his matter is being looked into. Annexure -10 is their letter addressed to the Birla Tyres Ltd., c/o. Ganesh Agancies, Cantonment Road, Cuttack that air bulgging out in the inside well. IN reply to the complaint of defective tyres, the O.Ps. in para-3 of the counter stated that as per the Clause-3 of the warranty the complainant was entitled to exercise so far as permissible by law such rights against the manufacturer of tyres and battery etc. IN the said paragraphs it is mentioned that the complainant produced the tyres on 31.12.1994 for examination and the complainant received a letter of the Company addressed to the Birla Tyres to have correspondances with them. We have carefully examined the warranty clause as quoted below : "With regard to parts not manufactured by us but supplied by other parties, such as tyres, batteries rubber parts, electrical equipment, measuring insturments, diesel injector, pumps and accessories the Buyer shall be entitled to exercise, so far as permissible by law, such rights as we may have against those parties under warranties, if any, given by them."

From this it is clear that though the matter of warranty in repect of parts not manufactured by Talco could be taken up with the respective manufacturers, and in the present case say the Birla Tyres, this does not absolve the O.Ps. from manufacturers. We can only observe that during the period of warranty, the relationship between the supplier of the vehicle and that of the manufacturer of any such above parts are in the nature of principal and agent. During the warranty period no doubt the complainant could claim against the manufacturer of such parts which need replacement because of inharant manufacturing defect. But at the same time it is also the responsibility of the supplier of the vehicle to see that the customer should not be allowed to take up the trouble of moving the manfuacturers for any defect in any such parts not manufactured by Telco. It would be really unnecessary on onerous if during the warranty period for any defect in the parts mentioned in Clause-3 of the warranty, the customer is asked to take up the matter with the respective manufacturers. No doubt the clause is there but this clause should be exercised by the supplier on behalf of the customer and it would be too much to expect the customer to run after the respective manufacturer of the parts, to get it replaced or the defect removed. We observe that in such a situation it would be the primary responsibility of the supplier to see that the parts fitted to the new vehicle if turn out to be defective during the warranty period, it would be the obligation of the supplier to replace the same either at their costs or at the costs of the manufacturer as the case may be, but certainly not by asking the customer. We do not find there is any reason to discard the case of the complainant that he was entitled to reimburse of the cost of tyres replaced by him. He has filed the cash memos dated 10.11.1994, 2.12.1994 and 5.1.1995. This amount is of Rs. 55,000/- which he is entitled to receive.

FOR the sake of abundant caution we made M/s. Birla Tyres a party as O.P. No. 4. Though we also impleaded dealer Banwarilal and Company of Betnati but no notice has been served on them. However, we have not thought it appropriate to pass any order against the dealer of the tyre since no deficiency of service is alleged against it. We dispense the appearnce of O.P. No. 5. Since M/s. Birla Tyres is a party, the O.P. Telco may take up the matter with them for the amount awarded in this case. So far as the battery and shock absorber are concerned, we find the complainant to have received them vide Annexure-D filed by Telco. We do not pass any order in respect of that. So far as the tyres are concerned, the O.Ps. Telco shall pay this amount of Rs. 55,000/- towards the cost tyres, to the complainant immediately and may recover the same from M/s. Birla Tyres as per the warranty. In the result, complaint petition is allowed. Thererfore, we make both the Telco and Birla Tyres jointly and severally liable. The complainant is entitled to cost of litigation Rs. 5,000/- to be paid by Telco alone. The above amount be paid within a period of three months from the date of communciation of the order. Complaint disposed of.