F.A.208/2019 & F.A.205 OF 2019
WITH
F.A.213 OF 2019
Learned counsel for all the appellants are present.
2. Heard learned counsels for the appellants in all the appeals which arise out of a common order passed by the learned District Forum. Therefore, this common order will govern all the appeals.
3. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
4. The conspectus of the case of the complainant is that the complainant purchased a four wheeler of Mahindra Maximo Mini Van Vx from OP No.2. The OP No.1 was the manufacturer of the vehicle in question and the vehicle was registered vide Regd.No.OD-22D-3388. It is alleged inter-alia that after the vehicle purchased and being financed by OP No.3, gave trouble. He took the vehicle to OP No.2 who assured to repair the vehicle and further assured to give service to the complainant. It is alleged that first service was due on 03.08.2015 and the complainant had to pay Rs.10,000/- towards cost of the fuel meter which was replaced. It is alleged that on 15.08.2015 another major defect was found and the matter was reported to OP No.2 who demanded further cost. Thereafter, the vehicle was found with problems on 28.08.2015. The OP No.2 demanded Rs.4,000/- from the complainant and the complainant against his will paid the amount. After repairing, the vehicle broke down. The matter was reported to OP No.2 who did not take any step further. The inaction of the OP No.2 was also reported to OP No.1 & 3 but no action was taken. Hence, the complaint was filed.
5. The OP No.2 was set-exparte.
6. OP No.1 filed written version stating that he has no any information about the defect of the vehicle. He further averred that it is a matter between the OP No.2 and complainant. Thereafter he submitted that he has no any deficiency of service.
7. OP No.3 submitted that they have financed the vehicle but the complainant has not paid all the EMIs. However, he has no complicity with the allegations.
8. After hearing both the parties, learned District Forum passed the following order:-
Xxxxxx xxxxx xxxxxxxx
“ The complaint be and the same is allowed against OP No.1 & 3 on contest, and OP No.2 on ex-parte. The OP No.2 & 3 hereby directed to refund Rs.1,50,000/- to the complainant which they have illegally received towards the exchange of the spare parts. All the Ops are hereby directed to replace the engine of the vehicle bearing the No.OD-22D-3388. They are also hereby directed to pay Rs.5,000/- towards the mental agony and harassment as well as Rs.5,000/- towards the cost of the litigation to the complainant. Failing which additional compensation Rs.25/-per day shall be annexed with the compensation. This order shall be carried out by the Ops within 30 days on receipt of the copy of this order.”
9. Learned counsel for the appellant in F.A.208/2019 submitted that the case is barred by limitation which was not taken care by the learned District Forum. According to him the cause of action arose in 2014 whereas the case is filed in 2017 and as per U/S-24-A it is barred by limitation. He further submitted that the lawyer engaged by the present appellant had filed the written version but did not take step further without informing the OP No.1 for which the case was ex-parte. He further emphasized that due to latches of the lawyer the parties should not be allowed to suffer. If opportunity would be given to produce all the documents to support his contention, he would confused the matter.
10. Learned counsel for the appellant in F.A. 213 of 2019 submitted that there is no any manufacturing defect in the vehicle but learned District Forum, without any evidence has leveled charges of impunity. He further submitted that OP No.1 being the manufacturer is only entitled to answer if it is sold by him. However, he submitted that the matter should be remanded to the learned District Commission for denovo hearing. Learned counsel for the OP No.3 in F.A.205/2019 submitted that learned District Forum has committed error in law by directing to return the money although there is no iota of evidence in this regard. So, he submitted that the appeal should be allowed.
11. Considered the submission of learned counsels for the appellants, perused the DFR and impugned order.
12. It is the duty of the complainant to produce the evidence and prove the deficiency of service of the OPs. It is admitted fact that the vehicle was purchased by the complainant on being financed by OP No.3 and the vehicle was purchased from OP No.2. It is not in dispute that the OP No.1 is the manufacturer of the vehicle. The OP No.2 stated to have filed all the documents with the vehicle concerned but the concerned lawyer did not attend the hearing making litigation more costly. Also it is settled that for the mistake of the lawyer the parties should not be allowed to suffer. When it is a case filed by the complainant alleging about the defective engine and other parts and the allegation is made against OP No.2 for demanding of Rs.4000/- , the opportunity should be given to OP No.2 to place his case.
13. In view of above discussion, the impugned order is set-aside and the matter is remanded to the learned District Commission for denovo hearing of the complaint case. Both the parties would be given opportunity to adduce evidence if any and learned District Forum would dispose of the matter within 45 days from the date of receipt of this order or the bench is constituted whichever is later. Both the parties directed to appear before the learned District Commission on 07.02.2022 to take further instruction.
The appeals are disposed of accordingly. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
Statutory amount be refunded with proper identification.
