Heard learned counsels for both sides.

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.  The case of the complainant in nut shell is that on 21.6.2011 the complainant purchased two tyres and tubes from O.P.1 on payment of due consideration.  It is alleged interalia that within the warranty period both the tyres were damaged.  Thereafter he made claim before the O.P but all the grievances became futile exercises.  So the complaint was filed.

4.  The O.P did not file written version but participated in hearing.

5.   After hearing both the parties, the learned Dist. Forum passed the following order;

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      The petition is allowed with contest against the O.Ps.  The O.Ps are directed to return Rs.7000/-(seven thousand) towards the costs of the tyre to the petitioner.  The O.Ps are further directed to pay Rs.5000/-(five thousand) towards compensation together with cost of R.1000/-(one thousand) to the petitioner.  Both the O.Ps are jointly and severally liable to pay the above amount within one month of receipt of this order, failing which the O.ps are liable to pay interest @ 12% per annum from the date of order till the date of payment.

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6.  Learned counsel for the appellant submitted that learned Dist. Forum has committed error in law by not calling for any expert opinion to find out the manufacturing defect with the tyres which have been used by the complainant by plying the vehicle.  He submitted that the matter has not been conveyed to him by O.P.1 about the defect.  However he submitted to allow the appeal by setting aside the impugned order.

7.  Considered the submissions of learned counsel for the appellant, perused the D.F.R and impugned order.

8.  It is for the complainant to prove deficiency of service on the part of O.Ps.

9.  It is admitted fact that the complainant has purchased the tyres from the O.P.  It is also admitted fact that no expert opinion has been called for to find out the manufacturing defect.  Learned counsel for the appellant submitted that this Commission has taken a view in F.A.No.399/2012, M.R.F.Ltd. Vrs. Rabishankar Mohapatra that in absence of expert opinion, the opinion of the Dist. Forum cannot be dispensed with the expert evidence.  Since there is no expert evidence adduced U/S-13(1)C of the Act and the impugned order shows that this Forum himself became the expert, there is force with the submission of the learned counsel for the appellant.  Para-10 & 11 of the aforesaid order of this Commission is as follows:

    “Para-10: It is admitted fact that the tyre and tube was of MRF make which was purchased by the complainant from O.P No.1 but no document is filed by complainant when he has complained about defective tyre and tube to the O.P.  The observation of Dist. Forum in para-9 is as follows:

     “We have inspected the tube and found the defects in the tube as alleged by the complainant.  When the defects are clearly visible to the naked eye, we do not feel it necessary to send the tube to any laboratory and it is the opinion of higher Forums.  Further the A/R for O.Ps also did not show any interest to inspect the tube.  Hence we do not entertain their petition u/s-13(1)(c) filed along with their counter on 11.5.2012 only.”

        Para-11: The aforesaid observation shows that the Dist. Forum has become the expert by not referring the tube to the expert although it is required u/s-13(1)(c) of the Act.  In this regard this Commission has already decided in F.A No.179/2012 decided on 5.8.2021 M.R.F Ltd. Vrs. Purna Chandra Kandi and others where it has been observed that “not only this but also the observation of the learned Dist. Forum that the mechanic of complainant also examined the tyre should be relied upon although he has not proved the expertise in the subject except pointing out the damage to tyre.  Apart from this, the complainant’s allegation should be proved by evidence cannot be inferred from the common conscience as observed by the learned Dist. Forum.

       When the complainant doubts the report of the O.Ps it is his duty to have examined the said tyre by of expert in the laboratory inviting the attention of the learned District Forum to Section-13(1)(c) f the Act.  Since there is no expert opinion obtained and the learned Dist. Forum also did not consider to examine the 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 tyre and as such deficiency in service on the part of O.P.”

10.  Relying upon the aforesaid observation of observation in M.R.F Ltd. (Supra) in the instant case in absence of expert opinion u/s-13(1)(c) this Commission do not agree with the view of learned District Forum, as such the impugned order is set aside and the appeal stands allowed.  No cost.

       The statutory amount be refunded.

       Free copy of this order be supplied to the parties or may be down loaded from Confonet or Website of this Commission be treated as free copy issued to them.