Heard learned counsel forboth parties.

2.      Here 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.   The factual matrix leading to the case of the complainant is that the complainant purchased four MRF tyres from OP No.2 for his Bolero vehicle. Within the warranty, one of the tyres was found excessive swelling for which the complainant lodged complaint with OP No.2 who sent the tyres to OP No.1 on 10.8.2019. It is alleged inter alia that the inspection report dated 14.8.2019 prepared by OP No.1 did not show manufacturing defect with the tyre in question. The complainant alleged that the tyrewas not returned to him. Due to absence of tyre the complainant suffered losses. So, the complaint was filed.

4.      OP No.2 did not file written version.

5.      OP No. 1 filed written versionafter expiry of the statutory period for which the written version was not accepted.

6.      After hearing both parties, learned District Forum  passed the following impugned order:-

                             “xxxxxxxxx

            The complaint petition is allowed in the light of the observations made in the preceding paragraphs. The opp.parties are made liable for deficiency in service and are directed to provide a new tyre in place of the defective tyre to the petitioner and further directed to pay a sum of Rs.20,000/- (Rupees twenty thousand) towards harassment, unfair trade practice, deficiency ofservice and cost of litigation. The compliance of the directions shall be madewithin a period of one month from the date of receipt of this order.”

7.      Learned counsel for the appellant submitted that the learned District Forum has committed error in law by not accepting the written version which is relevant for the OPs.   He also drew attention of the Commission to the observation of learned District Forum that the tyre suffers from manufacturing defect and submits that such observation is unwarranted in judicial process.

8.      Learned counsel for the appellant also submitted that the learned District Forum committed error in law by not sending the tyre for any laboratory test for which the impugned order is defective due to non-compliance of section 13(1)(c) of the Act. In toto, he submitted that the impugned order being illegal and improper should be set  aside by allowing the appeal.

9.      Considered the submission of learned counsel for  therespective parties and perused the DFR including the impugned order.

10.    The onus lies on the complainant to prove the deficiency of service on the part of the OPs.

11.    No doubt it is admitted that the tyres have been purchased by the complainant on payment. It is also not in dispute that complainant filed the  complaint with  OP alleging crack in one of the tyres on 9.8.2019. It is also not in dispute that the tyre was examined by the OPs on 14.8.2019and no manufacturing defect was found.

12.    However,  OP No.1 has produced the document inspection report dated 14.8.2019of OP where it is clearly stated that they have not found any manufacturing defect and the tyre was damaged due to belt separation due to overheating.

13.    When the complainant doubts the report of the OPs, it is his duty to have examined the said tyre by one expert in the laboratory inviting the attention of the learned District Forum to section 13(1)(c) of the Act. Since there is no expert opinion obtained and the learned District Forum also did not consider to examine same by expert whether it was manufacturing defect, there is flaw in the case of complainant. On the whole complainant has failed to prove manufacturing defect in the tyreand as such deficiency in service on the part of OPs.

14.    In view of aforesaid discussion, this Commission is of the view that the impugned order being illegal and improper should be set aside and it is set aside.

15.     The appeal stands allowed. No cost.

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

            DFR be sent back forthwith.

           Supply free copy of this order to the respective parties.The copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.