Heard learned counsel for the appellant. None appears for the respondents.

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 two MRF tyres from OP No.2 on payment of Rs.3,800/- on 3.8.2010. After 17 days while the tyres were fitted to his vehicle, one of the tyres was found with crack for which on 14.8.2010 the complainant lodged complaint with OP No.2 who sent the tyres to OP No.1. It is alleged inter alia that the inspection report dated 19.8.2010 prepared by OP No.1 did not show manufacturing defect with the tyre in question. The complainant alleged that neither the report nor the tyre returned to the complainant. Due to absence of tyre the complainant suffered losses. So, the complaint was filed.

4.      OP Nos. 1 and 2 filed joint written version stating that the tyre in question has been examined by technical personnel and they found no manufacturing defect but tyre has suffered external damage due to service abuse. The complainant did not take back the tyre from OP No.2. It is also the plea of OPs that defective tyre was not tested by any approved laboratory for which the complainant has no merit in his case.

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

                             “xxx   xxx   xxx

            The complaint is allowed in part. The complainant is entitle to got a sum  of Rs.1900/- with the interest of 7% per annum from 20.9.2010 to till the date of realization and sum of Rs.2,000/- towards litigation cost and damages. Both the OPs are directed to pay the above amount within two months from today, failing which the complainant shall have right to proceed as per law.”

6.      Learned counsel for the appellant submitted that the learned District Forum has committed error in law by not considering the written version with proper perspectives. According to him, the report of Pratap Kumar Nayak, Mechanic who fitted the tyre on the vehicle of the complaint has been more reliable than the technical person of the OPs. It is for the OPs to find out the manufacturing defect but the learned District Forum has rejected such evidence of OPs without any rational reason. He categorically submitted that the observation of the learned District Forum that the report of the OPs is omnibus (general) is based on no evidence. He also drew attention of the Commission to the observation of learned District Forum that the complainant’s allegation is found to be correct for the reason stated in complaint which stands to common conscience and he submits that such observation is unwarranted in judicial process.

7.      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.

8.      Considered the submission of learned counsel for  the appellant and perused the DFR including the impugned order.

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

10.    No doubt it is admitted that the tyres have been purchased by the complainant on payment of Rs.3,800/- on 3.8.2010  under cash memo which is very much available on record. It is also not in dispute that complainant filed the  complaint with  OP on 14.8.2020 alleging crack in one of the tyres. It is also not in dispute that the tyre was examined by the OPs on 19.8.2010 and no manufacturing defect was found.

11.    The complainant in order to prove the case has examined also the mechanic Pratap Kumar Nayak who fitted the tyres. On perusal of his evidence nothing has come out about his source of knowledge whether the crack is a manufacturing defect. His view cannot be accepted by simple narrating the same as a manufacturing defect unless same is examined by technical expert. However, the complainant has produced the inspection report dated 19.8.2010 of OP where it is clearly stated that they have not found any manufacturing defect and the tyre was damaged due to external damage/scoring. But the observation of the learned District Forum is peculiar to show that the report prepared by Abhisek Dash, technical person of OP is omnibus and does not disclose exact defect in the tyre. On the other hand, learned District Forum has failed to appreciate the evidence in proper manner. By mere  arraying  the opinion as omnibus without same being discussed, the  view is hypothetical.

12.    Not only this but also the observation of the learned District 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 y evidence cannot be inferred from the common conscience as observed by the learned District Forum.

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 tyre and as such deficiency in service on the part of OP.

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.