Per Hon’ble Mr.Justice R.C.Chavan, President
This appeal filed by the manufacturer questions the order passed by the District Forum directing the appellant as well as dealer to carry out repairs of the car purchased by the complainant on 20/09/2007 and deliver it back to the complainant, as also to pay complainant compensation quantified at `10,000/- and costs quantified at `5,000/-. The dealer’s appeal bearing no.A/09/1437 came to be allowed by order of this Commission dated 10/10/2011 against which complainant had not preferred any further proceeding. This appeal itself was initially dismissed for failure to pay costs in time and was remanded by the National Commission after the appellant made good the lapses.
Complainant had come up with the case that the car which he had purchased had a manufacturing defect, which was required to be rectified by the dealer as well as the manufacturer i.e. present appellant. The complaint was filed by one Sadashiv Kisan Lokhande through holder of his power of attorney Mr.Vithoba Ganu Hedulkar. On behalf of complainant, said Mr.Vithoba Ganu Hedulkar had filed an affidavit. District Forum held in favour of the complainant repelling the pleas of the appellant, that first, that there was no privity of contract between the appellant and, secondly, with the manufacturing defect, as alleged by the complainant, the car could not have at all traveled 48000 k.ms, thirdly, that appellant was not obliged to rectify defects in terms of warranty conditions and, lastly, that the complainant had not proved his case of there being any manufacturing defect in the car, since the person who has filed affidavit on behalf of the complainant did not state that he was making averments in the affidavit on the basis of his personal knowledge. The District Forum found that these pleas were not tenable and this is how the appellant is before us.
We have heard the Ld.counsel for the appellant and the respondent.
The co-respondent no.2, dealer, was already held to be not a necessary party by an order dated 15/10/2012. Ld.counsel for the appellant is right in submitting that the power of attorney holder did not have personal knowledge about the condition of the car or the alleged manufacturing defects. There were no such averments in the affidavit and the verification also does not show that affiant was stating on the basis of facts within his personal knowledge. Further, the car had already traveled 48000 k.ms. It is difficult to imagine that a manufacturing defect would surface after the car traveled such a long distance. In the absence of any concrete evidence to show that there was manufacturing defect, responsibility to rectify the same could not be saddled on the appellant. In view of this, it is not necessary to go into the question of whether for the dealer/agent or the appellant, as the manufacturer were liable, or how dealer and manufacturer share responsibility in respect of the car. Since the complainant had not at all made out a case of existence of manufacturing defect, the forum was not justified in passing the impugned order. Hence, the following order:-
ORDER
Appeal is allowed.
Impugned order dated 30/09/2009 passed in consumer complaint no.16/2009 by the District Forum, Central Mumbai is set aside.
Consequently, consumer complaint stands dismissed.
Pronounced on 24th September, 2013.
