(Delivered on 26/04/2019)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         This appeal is filed by the original complainant   feeling aggrieved by an order dated 30/09/2013, passed by the District Consumer Forum, Nagpur   in consumer complaint No. 726/2011,  by which the said complaint has been dismissed.  We have heard Advocate  Ms. Harshika Bondre  appearing for the  appellant  and Advocate Mr. S.M. Kasture appearing for the respondent No. 1 today . No one appeared for the respondent  No. 2 for making  oral submission. We have also perused the record and proceedings of the appeal.

2.         The allegations made by the original complainant /appellant in brief  are as under.

            The appellant  purchased  one  car called as  Hyundai i-20 Asta, from the  respondent No. 2 on 12/12/2010 for  Rs. 6,54,958/- from the respondent No. 2  which is dealer of the respondent No. 1 manufacturer.   On 22/03/2011 the appellant  while  travelling in his car stopped it  on signal  because of Red Light and at that time  someone  opened  the  tailgate of the said car of the appellant  and he stole away  items worth Rs. 4,00,000/- including  Camera, Lenses, Tripod and filters.  It is submitted that  at the relevant  time engine of the vehicle  was in  running condition.  The car was  equipped with central locking system but despite of central locking  and engine was running , the thief  opened the tailgate and stole the above articles.  Therefore,  the appellant lodged  a report  at Sakkardara Police  Station. He also  made  correspondence  from time to time  with the respondents, but they did not  give  satisfactory  explanation.  Therefore,  the appellant filed  consumer complaint No. 726/2011 before the District Consumer Forum, Nagpur  raising   various grievances  particularly  that  there was  defect and deficiency  in car  and services provided by the respondents  as well as respondents   have adopted  unfair trade  practice by suppressing material facts about  the functioning of Central Locking System. The appellant  requested in that complaint  that  direction  be given to the respondent No.  1&2 to provide him the stolen articles  or  alternatively  to pay him their cost of Rs. 4,00,000/- and also  to pay him  compensation of Rs. 10,000/- for physical and mental harassment  and also replace  the said car by new car having Central Locking  System  equipped  in working condition and also to replace  the such defective  car   of other all consumers by new cars.

3.         The respondent No. 1 resisted the said complaint by filing reply. The submission made in that reply  in brief is as under:-

            The complainant purchased above mentioned car from the O.P.No. 2 i.e its authorised dealer. The car delivered to him  was in the perfect running condition as any other new car without any technical or mechanical defect. It is denied that  due to  defective Central Locking System  someone  opened  the tail gate  of the car  and committed theft of the valuable  articles  of the complainant. It is submitted that vehicle has five door central locking systems and the tail gate may be opened only if the vehicle   is in  unlocked position. All doors may be locked manually from driver side knob or with remote or auto lock feature, which can be activated at any Hyundai dealership. In any case, anyone can open door only if vehicle is in unlocked position.  These features are clearly mentioned in the owner’s manual which has been provided by  O.P.No. 2  to the complainant at the time of purchase of vehicle.  The complainant  purchased  vehicle only after satisfying himself about the product and its specification, feature, price, colour etc.  Ignorance of features of vehicle and its uses or negligence by owner in keeping  vehicle  in unlocked condition  at  red light  or keeping window glass of vehicle  open while driving  may result in stealing of goods  kept  inside  the vehicles. Hence, that   cannot be  termed  as defect.  Therefore, the O.P. No. 1 cannot be held liable  for any loss to the complainant due to  theft.  Hence, it is requested  by the O.P. No. 1  that  the complaint  may be dismissed.

4.         The O.P.No. 2/respondent No. 2 failed to appear before the Forum below despite  service of notice.  Therefore, the Forum proceeded exparte against the  respondent No. 2 as per order dated 26/04/2012.

5.         The learned District Consumer Forum, Nagpur  after hearing  both the parties  and considering   evidence brought  on record passed the impugned order holding that  it is not proved by the appellant  by any expert evidence  that  there is defect in  Central Locking  System of his car and therefore,  it can not be said that  there is   manufacturing  defect in the car.  The Forum below  also  agreed with the defence raised by the O.P.No. 1 in its reply as above.  Therefore, by passing  impugned order, the Forum dismissed the complaint. Thus, feeling aggrieved by the said order, the original  complainant  has filed this  appeal.

6.         The learned advocates of both the parties  filed their respective written notes of argument. We have perused  the entire record  and proceedings of  the appeal.

7.         The learned advocate of the appellant  reiterated  the case of the appellant  as specified  above in brief  and submitted that  the Forum below  did not properly consider the letter correspondence  made between  both the parties and also erred in dismissing  the complaint.  According to her  the  automatic central locking  system  is expected to  get  activated when  the engine of  vehicle  is  ignited  or  vehicle  started rolling  but it failed   to fulfil that  requisite  criteria/standard. Thus   learned Forum committed mistake  in holding that  there is  no defect in the car sold by the respondents to appellant. She  also submitted that  the report was  immediately  lodged  with  Police  by the appellant  due to incident  of theft and the respondents were also  intimated  by him  about  the said incident but they  did not give  any positive  response.  Moreover,  according to her ,  adequate  instructions  for use, maintenance  key features etc. were not  provided by the respondents to the complainant  and it also constitutes  deficiency  in service. Hence, she requested that  the impugned order may be set aside  and relief sought  for in the complaint  may be  granted .

8.         On the other hand, the learned advocate of the respondent No. 1 supported the impugned order and submitted that    there is no  expert opinion  to prove the defect  in the  central locking system  and when manual  was already  supplied  to the appellant  giving all detail information , the Forum below has rightly held that   no deficiency  in service can be  attributed  to  the respondents.  Therefore, he requested that the appeal may be dismissed.

9.         We find that   in the absence of  expert opinion /report  about  defect in the  central locking system of the car , it can not be established  that  there is any such defect in the central  locking system of the car   as alleged by the  appellant.  No inference can be drawn  about  the defective  in  central locking system from  simple fact that  the car was stopped  at red signal and some body opened the tail gate of the car  and stole away the valuable articles of the appellant from the car.

10.       We are of the considered view that  as it is not proved by the appellant that  the central locking  system  of the car is defective, no deficiency  in service  or unfair trade practice  can be attributed  to the respondent Nos. 1&2. We thus find substance in the aforesaid reply of the respondent. We find that the impugned order is legal, correct and proper  & needs no interference in this appeal and it deserves to be dismissed.

ORDER

i.          The appeal is dismissed.

ii.          No order as to cost in appeal.

iii.         Copy of order be furnished to both the parties, free of cost.