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

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 case of the complainant in nutshell is that the complainant has purchased a TVS motorcycle from OP No.2 on 28.2.2006 on payment of Rs. 34,790/-.  During free service, the vehicle has got service from OP No.3. Complainant alleged that during service, he found that there is trouble in the engine. Since the defect was not removed, he filed the complaint case.

4.      OP No.1 stated that he has never refused to attend any service call and there is no defect in the engine. OP No.2 stated that leakage in the fuel tank was  removed and no sound was coming. OP No.3 has not filed written version.

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

                             “xxx  xxx  xxx

            OPs 1 and 2 are directed to replace the engine of the TVS motor cycle of the complainant by an new one on taking back the defective engine within one month of receipt of this order along with a cost of Rs.500/-.”

6.      Learned counsel for the appellants submitted that the learned District Forum has committed error in law by directing to replace the engine without any basis. According to him, the fuel tank was given trouble and that has been replaced. There is no any report of any expert to show that engine was required for replacement. So the learned District Forum has passed the impugned order by not applying the judicial mind to the facts and law involved in the case. He also submitted to set aside the impugned order by allowing the appeal.

7.      Considered the submission of learned counsel for the appellants and perused the DFR including the impugned order.

8.      The complainant is required to prove the deficiency of service on the part of the OPs.

9.      The relevant portion of the impugned order is as follows:-

                             “xxx   xxx   xxx

            From the job cards on record, it can be seen that the complainant in fact had to take the motor cycle again and again to the servicing centre for the defects like fuel tank leakage, sound from engine and knocking problem and this must have been an irritating experience. The OPs have replaced the fuel tank but the engine seems to be unrepairable. In spite of several repairs it could not be rectified. Therefore, it can be held that the engine of the vehicle is having some inherent defect which could not be rectified even to the last and despite repairs, the vehicle continued to give unusual engine sound. It has been held by the honorable State Commissioner Cuttack that “where the manufacturer/authorized dealer failed to rectify defects during warranty period, same amounts to deficiency in service.”

10.    The aforesaid order does not disclose that complainant has got any complaint about the engine. When the OP has already replaced the fuel tank where the trouble was faced by the complainant, the question of replacement of engine does not arise. Had there been engine problem, it could have been verified by the expert under the Act. Therefore, the finding of the learned District Forum to replace the engine is illegal and improper and the same is required to be set aside and is set aside. So the entire order is set aside.

11.    The appeal stands allowed. No cost.

         DFR be sent back forthwith.

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

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