F.A.392 OF  2010 with

    F.A. 476 OF 2010

                  Heard learned counsel for  both the sides. Both the appeals are heard and  disposed of  by this   common order.

2.              This appeal is  filed  U/S-15 of erstwhile  Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to  with reference to their respective status before the learned District Forum.  OP No.2 filed F.A. No.392 of 2010 whereas OP No.1 filed F.A. No.476 of 2010.

3.                   The case     of  complainant, in nutshell   is that the complainant had purchased  a pickup (Tempo) from OP No.1 on payment of cost of Rs.2,34,950/- on 15.12.2007. The vehicle was manufactured by OP No.2. It is alleged inter-alia that the complainant has spent  Rs.1,05,000/- for repairing of the vehicle due to mechanical defect. He has requested the OP No.1 to replace the vehicle but it was in vain. So, finding no other way, the complaint was filed.  

4.            The OP1    filed written version stating that  the complainant has  purchased  the vehicle in good running condition without any major problem. He has also availed the warranty service within the period dtd.15.12.2008. It is further  averred that the vehicle had run 23,000 kms. without any problem.  The OP No.1  denied about any complaint received by him from the complainant. It is only admitted by OP No.1 that in August,2008 the vehicle came to his shop and they found that complainant has used kerosene instead of diesel as fuel. So, he drained out  the kerosene and put   diesel. Since, the complainant has used  kerosene  as fuel violating the instruction, the negligence on the part of the complainant can not be lost sight of. Therefore, there is no deficiency in service on their part. He prayed to set-aside impugned order.

 5.           The OP No.2 filed the written version stating that all the allegations are false and consumer complaint is not maintainable.  It is also averred that the OP No.1 is independent  of OP No.2 and vehicle alleged being put to trouble after the year of warranty, it has no any liability.

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

               Xxxx              xxxx              xxxx

                                “ In the result this complaint is allowed on contest against both the O.Ps. jointly and severally  but without any cost. The Ops are directed either to exchange the alleged asset with a brand new one with fresh warranty or to return Rs.2,34,950/- to complainant within 9 % interest per annum since August,2008  till the date of payment within 30 days from the date of this order.”

7.                Learned counsel for the appellant submitted that   learned District Forum has committed error in law by not considering the written version with proper perspectives. According to him learned counsel for appellant in F.A.476/2010 submitted that the vehicle has no manufacturing problem except the free service rendered  as per the manual. When the vehicle caused  break down they have attended  repairing work and found that the complainant have used kerosene  instead of diesel, resulting it became out of order. However, they have repaired the vehicle by removing the  kerosene. There is no manufacturing defect in the vehicle. Learned District Forum ought to have considered all these facts. Therefore, he submitted to set-aside the impugned order by allowing the appeal.

8.         Learned counsel for the appellant in F.A.392/2010 submitted that there is no any manufacturing defect in the vehicle but learned District Forum has made it jointly liable  to Op No.1. He submitted that the complainant  has not proved any expert opinion or he has not proved the documents showing the major defect frequently to find out the manufacturing defect. In fact they are rejected  He manufacturer and no such manufacturing defect in the vehicle.   He also stated that due to kerosene pured by complainant the vehicle started problem. He also submitted that learned District Forum has not applied judicial mind to the fact and law and as such the appeal should be allowed.

9.           Learned counsel for the complainant- respondent no.1  in both the appeals submitted that the allegations made by the appellant are false. Rather the complainant having suffered from defects on the vehicle has approached OP No.1 time and again. Since, the defects continued  he has prayed the Ops to replace the vehicle but they turned a deaf ear  to the complainant.  Since, there is deficiency in service on the part of the OP,  the vehicle should be replaced. He supports the impugned order. 

10.               Considered the submission of learned counsel for the parties,  perused the DFR and impugned order. 

11.        It is admitted fact that the complainant has purchased the vehicle on payment of consideration from OP No.1. It is also not in dispute that the vehicle has got free service from OP No.1 as per the manual. Now it is for the complainant to prove  whether there is manufacturing defect in the vehicle and the Ops failed to remove the defect so as to prove their deficiency in service. The complainant has adduced the evidence affidavit but has not proved any job card  to prove that the vehicle has gone  to OP No.1 time and again for major defects. Moreover, the complainant has not got the vehicle inspected by any  expert to find out the manufacturing defect. On the otherhand, the OP produced copy of the report of the service engineer dtd.26.08.2008 where they found that the vehicle has been used by use  of kerosene as fuel. The OP submits that there is no such procedure as per the manual. The service engineer noted that due to use of kerosene the vehicle has started trouble.  Thus, the  mis-use of  the vehicle by the complainant can be said to have contributed to the  damage the vehicle. Learned District Forum has not discussed about such matters.

12.              In view of aforesaid discussion, we are of the view that the learned District Forum has not assessed the  materials on record properly and as such passed illegal impugned order. Hence, the impugned order is liable to be set-aside and it is set-aside. Both the appeals stands allowed. No cost.

                  Free copy of the order be supplied to the respective parties or they may download same from the confonet  or webtsite of this  Commission to treat same as copy of order received from this Commission.  

                  DFR be sent back forthwith.

                  Statutory amount be refunded.