Reserved

State Consumer Disputes Redressal Commission

U.P. Lucknow.

Appeal  No.1068 of 2015

M/s Premier Car Sales Ltd., 9-Shahnajaf

Road, Lucknow through its President

Mr. S.K. Agarwal.                                                                

                                                                                …Appellant.

Versus

Shri Shailendra Kumar Chaudhary s/o Sri Ram  

Charitra Chaudhary, R/o near Anand Vihar

Inter College, Lakhperabagh, District Barabanki.

                                                                                …Respondent.

Appeal  No.1134 of 2015

Shailendra Kumar Chaudhary s/o Sri Ram Charitra

Chaudhary, R/o near Anand Vihar Inter College,

Lakhperabagh, Distt. Barabanki U.P.                               …Appellant.

1- Premier Car Sales Ltd., 9-Shahnajaf Road,

    Lucknow through Proprietor.

2- Regional & Area Officer, Regional Office,

Hundai Motor India Ltd., B-1, H-4, MCIE,

    Mathura Road, New Delhi-110044

3- Marketing and Sales Officer, Marketing &

    Sales Office, Hundai Motors India Ltd.,

    A-30, Mohan Cooperative Industrial Estate,

    Mathura Road, New Delhi-110044                                 …Respondents.

                                          Appeal  No.1602 of 2015

Hyundai Motors India Ltd., A company incorporated

and registered under the Companies Act, 1956

having it Corporate Office at 2^nd 5^th& 6^th Floor,

Corporate One (Banni Building), Plot No.5,

Commercial Centre, Jasola, New Delhi-110025. 

                                                                                             …Appellant.

1- Shailendra Kumar Chaudhary s/o Sri Ram  

Charitra Chaudhary, R/o near Anand Vihar

    Inter College, Lakhperabagh,  Barabanki.                                                                                           

2- Premier Car Sales Ltd., 9-Shahnajaf Road,

    Lucknow through Proprietor.                                          …Respondents.

Present:-

1- Hon’ble Sri Rajendra  Singh, Presiding Member.

2- Hon’ble Sri Vikas Saxena, Member.

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Sri R.K. Gupta, Advocate for the appellant.

Sri Kumar Sambhav, Advocate for the respondent.

Date    5 .8.2022

JUDGMENT

Per Mr. Rajendra Singh, Member: This appeal has been preferred against judgment and order dated 1.5.2015 passed by the District Forum-I, Lucknow in complaint case no.428 of 2011.

          The brief facts of the appeal 1068 of 2015 are that, that on 16.10.2009 the complaint had purchased a Hyundai Santro car (engine no.G4HG9M842547, chassis no.MALAA51HR9M452745 and registration no.UP-41-L-7000) from the appellant for an amount of Rs.3,47,583.00. The said car was brought for first free service on 12.11.2009 at running mileage of 1491 Kms in the workshop of the appellant and no defect/problem in the running of car or its performance was reported to the appellant. 

On 3.3.2010 the car was again brought for second free service at running mileage of 9563 Kms. and only problem of noise from front seat was reported which was rectified by the appellant.

On 18.5.2010 the car was again brought for its service at running mileage of 15011 Kms. and for the first time the problem of poor mileage was reported to the appellant. A perusal of the vehicle repair history card indicates that till this time no defect of “excessive mobil oil consumption” was reported to the appellant.

On 27.8.2010 the vehicle was again brought for third free service at running mileage on 23133 Kms. and apart from certain minor defects (steering check and upholstery cleaning), defect of poor mileage was reported. The mileage of the car was checked and verified at 14 kms. per litre on operative air conditioner. The complainant accorded his satisfaction with the mileage and took back his car. It is further stated that as per the terms of warranty, the servicing of car was to be conducted prior to running mileage of 20000 Kms. but on account of negligence on the part of complainant, the vehicle was brought for servicing at 23133 Kms. As a gesture of business goodwill, the appellant extended the benefit of free service to the complainant.

On 18.1.2011, the complainant brought the car to the service station of

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 the appellant and reported the trouble of excessive engine oil consumption. The complainant stated that while returning from some place to Lucknow, while he was at  distance of about 200 Kms. the car’s oil pressure warning light indicated low oil pressure and upon checking, the indicator indicated that the car had no engine oil. However, the complainant in his e-mail dated 27.1.2011 started that there was about half litre of engine oil in the car.

Upon receipt of report of excessive oil consumption, the service personnel of the appellant requested the appellant to allow them to inspect the engine of the car and repair it. It was assured on behalf of the appellant that any of the parts of the engine are found damaged then the same shall be replaced by new parts and it shall be further ensured that the engine of the vehicle works perfectly fine.

The complainant refused the suggestion of the appellant and insisted for replacement of car or refund of entire consideration paid for the car. The appellant informed the respondent that as per the guidelines received from the HMIL (Hyundai Motors India Ltd.) the appellant be given an opportunity to repair the engine of car as per the satisfaction of respondent. However, the respondent remained adamant and refused the innocuous suggestion and inspection of the car.

On the aforesaid basis, the complainant preferred a complaint case before  the ld. District Forum, Lucknow and prayed for replacement of car or  refund of consideration amount alongwith  payment of compensation. During the pendency of complaint, an application was moved on behalf of the complainant directing the RTO, Lucknow to appoint expert/automobile engineer for examining the vehicle and giving his opinion about the defect in the car. Vide order dated 4.10.2013, the said application was allowed and the RTO, Lucknow was directed to appoint an expert to examine the defect of the car of the respondent and submit its report to the ld. Forum.

In compliance of the order dated 4.10.2013, the RTO, Lucknow appointed two officials of his own department stating them to be experts and directed them to inspect the care of the respondent and submit its report. Vide its report dated 24.10.2013, the said team after conducting inspection of the car and without considering he fact that the car was standing in the premises of the appellant since last more than 2-1/2 years, cursorily opined

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that engine of the car had a manufacturing defect. Vide its objection dated 25.2.2015, the appellant objected to the report dated 24.10.2013 and further undertook to repair the vehicle to the satisfaction of the respondent.  

In India, all the vehicles, whether commercial or individual are subject to standard test prescribed by the Automotive Research Association of India (hereinafter referred to as “ARAI”). The said authority prescribes the standards, vehicle certification and tests to be followed by the manufacturers while manufacturing the vehicles and is the final authority to determine the manufacturing defect, if any, is present in any vehicle. The RTO, Lucknow or any team nominated by him, which does not have prescribed qualification, is not competent enough to determine on the manufacturing defect present in any vehicle. It was incumbent upon the forum to direct ARAI to submit an expert report regarding presence of any manufacturing defect in the car. The non-objection of the appellant in directing the RTO, Lucknow to appoint expert/automobile engineer cannot be treated as any estoppels as the RTO, Lucknow did not appoint the automobile engineers for inspection of car. The ld. Forum blindly relied upon the said expert report and rejected the objections and written statement of the appellant without considering them and without recording any finding upon them.

The judgment and order is wholly arbitrary, manifestly illegal non-est, nullity, against the merits of the case, defective, erroneous, bad in the eye of law and as such is liable to be set aside. The impugned judgment and order has been passed in utter violation of section 14 of the Consumer Protection Act. The ld. Forum failed to understand that the complaint did not report any defect of “excessive engine oil consumption” prior to 18.1.2011, when the respondent brought the car to the service station and himself admitted that the car was driven for about 200 kms. without adequate engine oil.

The ld. Forum wrongly held that the car had the problem of excessive hearing despite the fact that the problem of poor mileage was not disclosed till the car had run about 15011 kms. and problem of overhearing was never reported prior to 18.1.2011. The ld. Forum wrongly held that the car had a manufacturing defect without considering the fact that the engine of the car was not allowed to be examined by the respondent due to his adamant attitude and it was impossible for the appellant to correctly identify the

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defect without inspecting the car. The ld. Forum wrongly relied on the alleged expert report dated 23/24.10.2013 and failed to consider the aspect of vehicle being standing non-operative since last 2-1/2 years and that merely because there was lot of smoke and back compression, the vehicle had a manufacturing defect.

In view of the allegation of manufacturing defect in the car, it was incumbent upon the ld. Forum to send the care for inspection to ARAI. The ld. Forum failed to consider the negligence of the respondent in operation of the car where he had himself drove the car for more than 200 kms. despite low engine oil indication by the car which adversely affected the other parts of the car. The alleged expert  report dated 23/24.10.2013 could not be classified as the expert report as the RTO, Lucknow or team nominated by him was not expert/automobile engineer. The RTO, Lucknow or any similar authority only exercise administrative control over the affairs of road transport and is a policy implementation body and by no stretch or imagination, it can be terms as an expert.

The expert report dated 23/24.10.2013 was not supported by the affidavit of the experts who had conducted the examination of car and as such, was inadmissible as evidence. The Hon’ble National Commission in a recent case of M/s General Motors India Pvt. Ltd. vs. M.P. Bhargava & Co. reported in 2013(3) CLT 37-NC has held that bare allegations regarding defect in absence of evidence cannot be relied upon.      

Therefore, it is humbly prayed that this Hon’ble Commission may kindly be please to quash/set aside the impugned order dated 1.5.2015 and pass any other order as this Hon’ble Commission may deem fit and proper in the facts and circumstance of the case.

The brief facts of the appeal no.1134 of 2015 are that, that the appellant shailendra Kumar Chaudhary purchased a Hyundai Santro Car bearing Engine no.G4HG9M42547, Chassis no.MALAA S51HR9M452745 by paying the consideration amount of Rs.3,47,583.00 to the respondent no.1by getting the car financed at the interest rate of 12% and also got VIP, RTO Registration No.UP-41-L-7000 by paying extra amount of Rs.10,000.00. From very inception the car was facing major issues of consumption of engine oil as well as low mileage and the same was brought

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into the notice of authorized service center at the first service which was done on 1491 Km. on speedo meter as per rules and complain of low mileage was done orally but appellant/complainant was assured by the service center that for fine tuning of engine low mileage setup is done in further servicing mileage will increase gradually. But after 1^st, 2^nd and 3^rd service problems were not rectified even though the car was under warranty period of 24 months.

The authorized service center fails to  rectify the problem and asked to leave the car to check it Thorley and from 18.01.2011 car is lying in the open sky at the service center and decaying day by day. After several communications between appellant/complainant through e-mail phones calls and also one to one but no solution was given by the respondent asking to dismantle the new engine to rectify the problem but it is very well know that once the engine is dismantled from its original condition life of the engine become very short and it is also started giving problem on daily basic and as well value of the car dips very low, so the appellant/complainant asked to replace the whole engine but the same was not considered by any of the respondents.

After getting harassed by the respondents for such a long period appellant/complainant send legal notice, legal notice dated 17.3.2011 was sent to the respondents but no reply was received from them. So the appellant/complainant was left too no options but to file complaint before ld. District Forum and the same was filed on dated 10.5.2011.  In the above mentioned complaint ld. District Forum directed the RTO office for expert opinion by the order dated 4.10.2013 and the repot by RTO was given with the opinion that “Car Engine has manufacturing defect”. The judgment and order dated 1.5.2015 passed by the ld. District Forum-I, Lucknow partly allowing the complaint and directed the respondents to replace the engine only.

It is matter of fact, if any, car is placed as abundant for such a long period of 5 years nothing will be left, that the same car cannot run smoothly again because all tires will get dry within the period of less than 2 years will not be possibly to run again after 5 years, all mechanical part like bearing suspensions, excels, steering columns, battery, alternator, self starter, AC

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compressor, ratiodotors, gear box, electrical coil, electrical wiring, paint finish, seat upholsteries, seat cushion, carpet etc. will not be in the condition of to recover because all the items which are made up of steel and iron will be full or rust (Jung) and once iron or steel get it, it’s impossible to recover and if done will not be successful for long, all electrical items are hard to recover, seat cushion will dry and it will started tearing, suspension will not give smooth ride it will be hard even absorb any jerk, body paint finish are ruined, no item in car are left in recovery condition.

Without going into the factual position of the case ld. Forum passed the judgment and order dated 1.5.2015 in very mechanical manner without  taking the cognizance of present scenario and present condition of the subject (car) which is here by not a legally and faculty sound order, so the order passed by the District Consumer Forum should be enhanced to new car.

The impugned judgment and order dated 1.5.2015 passed by the District Forum-I, Lucknow is bad in the eyes of law. The impugned order is erroneous, factually incorrect, legally perverse, is without appreciation of correct fact and law is based on presumption and assumption hence, order dated 1.5.2015 passed in the complaint no.,428 of 2011 is liable to be enhanced in the interest of justice.

From very inception the car was facing major issues of consumption of engine oil as well as low mileage and the same was brought into the notice of authorized service center at the first service appellant/complainant was assured by the service center that for fine tuning of engine low mileage setup is done in further servicing mileage will increase gradually. But after 1^st, 2^nd and 3^rd service problems were not rectified even though the car was under warranty period of 24 months. Authorized service center fails to rectify the problem and from 18.01.2011 car is laying in the open sky at the service center and decaying day by day. 

Therefore, it is humbly prayed that this Hon’ble Commission may kindly be please to enhance the judgment and order dated 1.5.2015 by directing the respondents to replace the car with new and the amount of Rs.3,47,583.00 which is lying in the account of the respondents till date interest of that amount @ 18% p.m. may also be given to the

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appellant/complainant till final disposal of the case.

The brief facts of the appeal no 1602 0f 2015 are that, that the impugned order as passed by the ld. Forum is bad in law and contrary to the facts on record. The Ld. Forum has failed to appreciate the proper f acts as placed on record. The appellant is a limited company incorporation under the provisions of the Companies Act,1956 having its registered office at plot no.H-1, SIPCOT Industrial Park, Irrungattukottai, Sriperumbudue Taluk, Kancheepuram Distt. Tamil Nadu. The appellant is engaged in the manufacturing of various cars under the brand name “HYUNDAI”. The cars manufactured by the appellant are highly esteemed and popular not only in India but elsewhere in the world also. The  appellant has carved a place for itself in India Automobile Industry and is a highly reputed car company.

The complainant/respondent no.1 is the owner of the Hyundai Santro Car bearing VIN: MALAA51HR9M452745 and engine no.G4HG9M842547 delivered to the complainant on 15.10.2009 by respondent no.2, an authorized dealer of the appellant. The said vehicle laws delivered in perfect running condition as any other new car, without any technical or mechanical defect whatsoever. The respondent no.2 herein is the authorized dealer of the appellants with whom it operates on principal to principal basis. The respondent no.2 herein provided its services whenever the car was reported by the complainant/respondent no.1.

The appellant deals with all its dealers on principal to principal basis and the concerned dealer is responsible for any error/omission/misrepresentation, if any at the time of retail sales/services/repairs of the car since it is inter-se the concerned dealer/service centre and the customer. Being manufacturer appellant’s liability is limited to its warranty obligations alone. It is submitted that timely and efficient service in line with warranty policy of the appellant has always been provided to the complainant/respondent  no.1 herein. It is further submitted that there is no manufacturing defect in the said vehicle delivered to the complainant/ respondent no.1 herein.

The warranty terms and conditions of the appellant, two years of warranty is offered from the date of delivery of the car to the purchaser of all Hyundai Santro cars sold in India. However, the exceptions mentioned in the

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warranty terms and conditions is clear and specific and lays down that:

“Warranty will not apply to damage or failure resulting from:

1. Negligence of proper maintenance as required as per the owner’s manual. 
2. Use of improper or insufficient fuel, fluid or lubricants.
3. Misuse, abuse, accident, theft, flooding or fire.
4. Use of parts other than Hyundai Genuine parts.
5. Any device and/or accessories not supplied by HMIL.
6. Modification, Modifications, tampering or improper repair.

Under the warranty, HMIL  warrants that each new Hyundai vehicle sold shall be free from any defects in material and workmanship under normal use and maintenance subject to certain terms & conditions. It is specifically mentioned in owner’s manual that damages or  failure resulting from negligence of proper maintenance or use of improper or insufficient fuel, fluid or lubricants as required in owner’s manual will not be covered under warranty.

The appellant is placing herein below the following relevant facts of the case:

1. The respondent no.1 had  purchased a brand new Hyundai Santro car VIN: MALAA51HR9M452745 and engine no.G4HG9M842547 which was delivered to the respondent no.1 by respondent no.2 on 15.10.2009 in perfect running condition without any technical or mechanical defect whatsoever.
2. On 12.11.2009 the said vehicle was reported at the respondent no.2’s workshop for first free service and accordingly repair order no.R200910332 was opened at the mileage of 1491 Kms. Whereupon the engine coating & anti rust coating was carried out as per the schedule and the said vehicle was delivered to the complainant/respondent no.1 herein perfect running condition.
3. On 3.3.2010 the said vehicle was reported at the respondent no.2’s workshop for second free service and accordingly repair order no.R201002031 was opened at the mileage of 9563 Kms. whereupon the free service was carried out as per the schedule and the said vehicle was delivered to the complainant/ respondent no.1 herein in perfect running

condition.

1. On 18.5.2010 the said vehicle was reported at the respondent no.2’s workshop for poor mileage and accordingly repair order no.R201004999 was opened at the mileage of 15011 Kms. After that, the said vehicle was properly checked to the satisfaction of the complainant/respondent no.1 herein before delivering it back to the complainant in a perfect running condition.
2. On 27.8.2010 the said vehicle was reported at the  respondent no.2’s workshop for third free service and accordingly, repair  order no.R201008680 was opened at the mileage on 23133 Kms. whereupon the free service and upholstery cleaning was carried out as per the schedule and the said  vehicle was delivered to the complainant/respondent no.1 herein in perfect running condition.
3.  On 21.9.2010 the said vehicle was reported at the  respondent no.2’s workshop for poor mileage and accordingly, repair  order no.R201009504 was opened at the mileage on 24574 Kms. whereupon the said vehicle was properly checked and the average of the said vehicle was recorded at 14 Kms. with A/C on and the road  test was found OK and the said  was delivered to the complainant/respondent no.1 herein in perfect running condition.
4.  It is pertinent to mentioned that the said vehicle was reported at the respondent no.2’s workshop for excessive engine oil consumption and accordingly repair order no.R201100472 was opened on 18.1.2011 i.e. after one year and three months of the purchase of the said vehicle at the mileage of 32963 Kms.
5. It is pertinent to mention that the said vehicle is still lying at the Respondent no.2’s workshop and the complainant/respondent no.1 is not ready to take the delivered of the said vehicle without full replacement of the engine. The respondent no.2, vide letter dated 31.1.2011, informed the complainant/respondent no.1 that the said vehicle will be repaired as per the warranty policy of the appellant but the complainant/ respondent no.1 did not respond to the said letter.
6. The complainant/respondent no.1 filed the complaint under Consumer Protection Act, 1986 before the Ld.

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District Forum, Lucknow with a malafide intention of getting vehicle replaced after driving for 32963 Kms. in about 13 months from the date of its purchase on frivolous grounds.

1. The appellant herein filed its reply to the said complaint and also tendered its evidence by way of affidavit on 8.5.2013.

The ld. Forum vide its impugned order dated 1.5.2015, as received by the appellant herein on 24.7.2015 wherein the said complaint was allowed and the opposite parties (jointly and severally) were directed to provide a new engine in place of the old one to the complainant free of cost and provide to the complainant in a perfect running condition and if not possible then pay Rs.3,47,583.00 with 9% interest to the complainant from the date of filing of the case till final payment is made to the complainant along with the direction to pay Rs.5,000.00 as compensation and Rs.3,000.00 as a cost of litigation to the complainant.

The impugned judgment dated 1.5.2015 passed by the ld. District Forum is against all canons of law, equity, justice and erroneous in law and on the facts. The ld. District Forum has passed the impugned order without appreciating the fact that mileage claim with respect to Hyundai vehicle is tested and certified by Automotive Research Association of the India. ARAI is a cooperative industrial research association established by the automotive industry with the Ministry of Industries, Government of India. That mileage of the car depends on various factors such as terrain, driving habit, road and traffic conditions, improper use of clutch, brake, maintenance, tyre pressure, fuel quality, running of electrical accessories (e.g. air conditioner) etc. It is pertinent to mention that above said conditions affect the mileage performance of the vehicle. Poor mileage alone cannot be terms as defect in the vehicle in absence any expert opinion.

The ld. Forum failed to appreciate that the alleged problem of consumption of excessive mobile oil by the engine of he said vehicle was reported for the first time only on 18.1.2011 i.e., after the said vehicle was used for almost for 13 months and had run a mileage of around 33000 Kms.  

The ld. District Forum erred in reply on the RTO report as expert evidence as the same is in contravention of the legislative intent and express provision of the Consumer Protection Act. It is a settled position of law that

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he inspection, if any, if the said vehicle should be conducted by ‘appropriate laboratory’ as defined under section 2(1)(a) of the Consumer Protection Act.  The ld. Forum failed to appreciate the provision of warranty policy of the appellant herein which offers two years unlimited mileage warranty from the date of delivery of vehicle to the fist purchaser does snot under any circumstances contemplate neither replacement of the vehicle nor refund of the purchase price. The relevant warranty policy lays down. “….authorised dealer shall either repair or replace, any Hyundai genuine part that is acknowledged by HMIL to be defective in material or workmanship within the warranty period. ….. at no cost to the owner of the Hyundai vehicle for parts or labour”.

The ld. District Forum failed to appreciate that there is absolutely no manufacturing defect at all in the car as alleged. It is submitted that he complainant/respondent no.1 herein has used the car extensive for 31963 Kms. as on 18.1.2011 in just about 13 months from the date of purchase. Had there been any defect in the car the same would not have covered such an extensive mileage.  The impugned order has been passed in total disregard of the law laid down by the Hon’ble National Commission in the case of “R. Baskar vs. D.N. Udani” reported at IV (2006) CPJ 257 wherein the Hon’ble National Commission has held that, “if the vehicle was having manufacturing defect it could not have been used for one year and five months and run more than 9500 Km. considering the facts that the vehicle had been in use for one year and five months and had run over 9808 Kms. it is difficult to believe that it is suffering from manufacturing defect”.

Therefore, it is humbly prayed that this Hon’ble Commission may kindly be please to quash/set aside the impugned order dated 1.5.2015 and pass any other order as this Hon’ble Commission may deem fit and proper in the facts and circumstance of the case.

We have heard ld. Counsel for the appellant Sri R.K. Gupta, and ld. Counsel for the respondent Sri Kumar Sambhav.  We have perused all the pleadings, evidence and documents present on record. 

In the present cases we have seen the average of the vehicle as reported on 21.09.2010 , is 14 km per litre with on AC. Till that date the racket has already run 24574 km. Were also seen the inspection report of the

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vehicle by transport department. In the very beginning, it has been that the vehicle has been inspected by transport department in the presence of service manager, BR Hyundai Karyashala ,Chinhat and owner of the vehicle. But this report does not bear the signature of these two persons. So it cannot be proved that this inspection was performed in the presence of above mentioned persons. It is also not clear whether the transport regional inspectors were qualified for such an inspection.

The said vehicle has run more than 15,000 km with manufacturing defect, cannot be trusted. We have seen the job card of this vehicle. The poor mileage was first reported on 24 September 2010 and after verification it was found that the average of the vehicle is 14 km per litre with on AC. When four the first time the complainant had made for excessive use of engine oil, the vessel has run more than 32,000 km till then. The second was brought to the workshop on 18 January 2011 on the complaint of excessive oil consumption and when the service centre wanted to open the engine  of the vehicle, the owner did not permit it. The vehicle was run more than 200 km on 17 January 2011 knowing that there is engine oil below the minimum level. It may damage the vehicle engine

In the case of Mohd  Hasan  Khalid Haider  Vs  General Motors India Private Limited &Ors , Revision Petition Number 525/2018, judgement dated 8 June 2018 , the Hon’ble National Commission taking reference of its own earlier judgement passed in Tata Motors vs Rajesh  Tyagi judgement dated 03.12.2013 (revision petition number 1030/2008) has said that some defects occured in the vehicle after some time of taking its delivery and the complainant came to know that there is water logging in the floor area and front seat which cannot be removed by the opposite party but in the case of Mohd  Hasan  Khalid Haider  the problem in the vehicle developed after 9 to 10 months of taking its delivery and the vehicle has already run 2500 km and if it would have been manufacturing defect the vehicle could not run so much kilometres. The defect has already been repaired so the Hon’ble National Commission did not consider it as manufacturing defect.

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In the case of Baljit  Kaur  Vs  Divine Motors &Anr , {III(2017)CPJ599(NC)} the Hon’ble Nation Consumer Commission has said that if any manufacturing defect is alleged then the onus to prove it is on the complainant. In this case complainant had submitted the affidavits of seven or eight persons in his favour, it was held that the affidavits could not take place of the expert  opinion.

In the case of Suresh  Chand Jain  Vs  Service Engineer and Sales Supervisor, MRF Limited &Ors [I(2011)CPJ 63 (NC)] the Hon’ble Nation Consumer Commission has said that where it is alleged that there is manufacturing defect of tyres, the burden to prove it is on complainant and he cannot prove it. He could not tender any expert evidence hence he failed to prove that there was any manufacturing defect in the tyres.

The Hon’ble Nation Consumer CommissionHyundai motors India Ltd    Vs  , Surabhi  Gupta , revision petition number 2854/2014 , judgement dated 14.08.2014 , had said that he is convinced with the argument of Hyundai motors India Ltd that if there would have been any manufacturing defect in the vehicle, it would have not run 48,689 km in three and half years. If there would have been any serious defect in the vehicle, it was not possible for the owner to run the vehicle for about 48,000 commuters. The senior officers of the company performed a test drive of the vehicle and wherever defect has been found, it has been repaired or replaced the said part. The Hon’ble National Commission has said that even after this the statement of the complainant cannot be accepted that even after it there is defect in the vehicle.

So in the present case, the appellant could not prove satisfactorily that there was manufacturing defect in the vehicle from the very beginning. The learned Forum did not consider all these facts. No independent expert report is on file. The complainant could not establish the fact that there was manufacturing defect in the said vehicle from the date of purchase. During first many services no complaint regarding any major defect has been put forward before the service centre. So taking all circumstances we are of the opinion that the respondent could not prove the fact of manufacturing defect in the vehicle.

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There is no ground sufficient to enhance the award by the learned District Forum. So considering all the facts, evidence and circumstances of the cases we are of the view that there is no ground to enhance the award but there is sufficient ground to set aside the impugned judgement and order passed by the learned District Forum. Therefore the appeal no 1068 of 2015 and appeal no. 1602 of 2015 are liable to be allowed and the impugned judgement and order is liable to aside while the appeal no. 1134 of 2015                  is liable to be dismissed.

ORDER

The appeal number 1068 of 2015 and appeal no 1602 of 2015 are allowed while the appeal no 1134 of 2015 is dismissed. Cost on parties. The impugned judgement passed by the learned District Forum -I , Lucknow in complaint case NO 428 OF 2011 dated 01.05.15 is set aside. Cost on parties

The stenographer is requested to upload this order on the Website of this Commission today itself. 

          Certified copy of this judgment be provided to the parties as per rules.   

       (Vikas Saxena)                            (Rajendra Singh)

            Member                                Presiding Member

Judgment dated/typed signed by us and pronounced in the open court.

Consign the record.

       (Vikas Saxena)                               (Rajendra Singh)

            Member                                    Presiding Member

Jafri, PA II

Court 2