Heard learned counsel for the appellant. None appears for the respondent.

 2.     This is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.   Learned counsel for the appellant submitted that the complainant allegedly purchased Hundai Elantra 165, CRDI Maroon Red car on 27.3.2013 for consideration of Rs.16,75,866/- from the OP. The complainant alleged inter alia that on 13.5.2013 and 23.10.2013, he got free service from the OP but thereafter four tyres of the vehicle got damaged. The complainant took the matter to the OP. Since defect in the tyres allegedly to be of manufacturing defect within the warranty period, the complaint was filed by complainant.

4.      Learned counsel for the appellant submitted that the OP filed written version challenging the jurisdiction of the learned District Forum u/s 11 of the Act. Further it is stated that as per Hyundai policy battery, tyres and tube originally equipped on Hyundai vehicles are warranted directly by respective manufacturers and not by Hundai Motors Limited. As such, they are not liable for this allegation. They also alleged that the complaint is barred by non-joinder of the necessary party. So, they have no any deficiency of service as alleged by the complainant.

5.      Learned District Forum after hearing both parties passed the following impugned order.

                             “xxx   xxx   xxx

            The OP is hereby directed to supply 5 numbers of tyres in same specification of brand to the complainant forthwith and non availability of particular branch/specification, he has to pay the complainant at the competent market price on the date of delivery to the satisfaction of  the consumer without fail and also to pay a sum of Rs.10,000/- (Rupees ten thousand) only, as  compensation towards the harassment and mental agony sustained besides a sum of Rs.1,000/- (Rupees one thousand) only, as legal expenses incurred within 4 weeks of this order, failing which interest @ 15% per annum will accrue on the entire amount, from the date of complaint till realization of payment.

The dealer is to communicate the company to open on reasonable distance servicing outlet arrangement that to be located within the reach of the consumer/complainant of Bolangir district, so that parties at stake be conveniently served and he felt at doorstep in incorporating the address in warranty manual hand book.”

6.      Learned counsel for the appellant submitted that the learned District Forum has committed error in law by passing the impugned order without verifying the written version and the materials on record. Learned District Forum ought to have visualized that the tyres are not manufactured by the OP. When the OPs are not the manufacturers, they are not liable.

7.      Learned counsel for the appellant submitted that the leered District Forum has also committed error in law by not going through the warranty which does not take care  tyre, battery etc. fitted to the vehicle sold by the OP. Learned District Forum has not  considered this aspect. Apart from this, he has submitted that the opinion of the expert has not been taken to find out whether the tyres have manufacturing defect. So he submitted to allow the appeal by setting aside the impugned order.

8.      Considered the submission of learned counsel for    the appellant and perused the DFR including the impugned order.

9.      Complainant has got responsibility to prove the deficiency of service on the part of the OP.

10.    It is admitted fact that the complainant has purchased the vehicle from the OP. It is also not in dispute that the complainant has been issued warranty  for the vehicle purchased. The complainant alleged about defective tyres which is not covered under warranty as per written version of OP Nos. 1 and 2. Clause – 3 of the  warranty clearly shows that battery, audio system, tyres and tube originally equipped on Hyundai vehicles are warranted directly by respective manufacturers and not by Hundai Motors Limited. Since the tyres in the instant case are not covered by warranty, the liability of the OP is least one. Learned District Forum has gone through the said warranty but did not analyse the said clause but  bestowed burden on the OP in its impugned order.

11.    The complainant also has not brought any expert opinion to find out manufacturing defect of the tyre because it is the complainant to prove the deficiency of service on the part of OP. When the OP has sold the vehicle having tyre manufactured by another company, the finding of the learned District Forum that OP has not taken step to remove the defect is equally unwarranted. Moreover, complaint is silent as to who is the manufacturer of the tyres and it does not also explain why that tyre manufacturing company was not made party to this proceeding. Therefore, the complaint is also bad for non-joinder of necessary party. All these aspects have not been considered by the learned District Forum. Therefore, the impugned order of the learned District Forum is liable to be set aside and is hereby set aside.

12.    The appeal stands allowed. No cost.

          DFR be sent back forthwith.

          Statutory amount deposited be refunded to the appellant with interest accrued thereon if any on proper identification.

          Supply free copy of this order to the respective parties.