Date  : 17.04.2013

Per Mr.B.A.Shaikh, Hon`ble Presiding Judicial Member.

1.       This appeal is directed against the judgment and order dated 30.9.2008 passed in complaint  case No.958/2007 by District Forum Jalgaon, by which the complaint  has been dismissed.

2.       The case of complainant as set out in the complaint  in brief is that, he purchased TVS scooty moped from opposite party  No.3 dealer through sub-dealer opposite party  No.2 manufactured by opposite party  No.1, for Rs.29,990/- on 6.3.2007.  Said moped started giving trouble within 4 days of it`s purchase. There were many defects in it.  Therefore the complainant took it from time to time to opposite party  No.3 for repairing.  However, the said defects could not be removed from it.  Therefore the complainant served legal notice to the opposite parties and then filed complaint  praying that purchase price of Rs.29,990/- and R.T.O. passing expenses of Rs.6000/- be paid to him with interest by opposite party  Nos.1, 2 & 3 and they may be also directed to pay him compensation of Rs.35,000/- towards mental harassment. 

3.       Opposite parties filed written version and admitted that complainant had purchased the said moped from opposite party  No.3 manufactured by opposite party  No.1 and that the complainant had brought the same to opposite party  No.2 on 1.6.2007 for repairing and it was repaired. However, complainant has not taken back the said vehicle from opposite party  No.1.  Therefore they submitted that there is no deficiency in service on their part and hence complaint may be dismissed.

4.       District Forum below after considering the evidence brought on record held that opposite parties have removed the defects of the vehicle and that there is no manufacturing defect in that vehicle. It therefore dismissed the complaint.

5.       It is submitted by learned advocate of complainant/appellant that job card itself shows that there is manufacturing defects in the vehicle and that District Forum below did not consider the evidence properly.  He has invited our attention to the papers placed before us in this appeal and relied upon observation made in the following cases.

i)        Bajaj Auto Ltd. & Others -Vs- Anurag Kapoor, 1986-2004 Consumer 7459(NS).

ii)       Ashok Kesharlal Saraf(Deceased by L.Rs.) -Vs- Tata Motors Ltd. & Anr. 2006(3) ALL MR(Journal) 19.

iii)      C.N.Anantharam -Vs- M/s Fiat India Ltd. & Ors., 2010 ALL SCR 2686.

          Under the facts and circumstances of those cases it is found that there is deficiency in service  provided by original opposite parties to the respective complainant of those cases. It is further submitted by advocate of appellant that aforesaid vehicle is still with the opposite parties, after it was handed over within 3 months of it's purchase by complainant  and this itself shows that the said vehicle is having manufacturing defects. He therefore submitted that appeal may be allowed and relief claimed by complainant/appellant may be granted.

6.       On the other hand, learned advocate of respondent supported the impugned order and submitted that in the absence of expert opinion, no manufacturing defect can be proved in the present case. He further submitted that all the defects have been already removed and letter to that effect was issued to the original complainant, but he has not taken back the vehicle and hence appeal may be dismissed. He relied upon observations made in the following cases.

i)        Suresh Chand Jain -Vs- Service Engineer and Sales Supervisor, M.R.F. Ltd. & another, Revision petition No.3845/06 & 3846/06 decided by Hon`ble National Commission on 16.12.2010

ii)       Sushila Automobiles Pvt.Ltd. -Vs- Dr.Birendra Narain Prasad & Ors. III(2010) CPJ 130(NC).

iii)      Classic Automobiles -Vs- Lila Nand Mishra & Anr. I(2010) CPJ 235(NC),

iv)      Dr.K.Kumar Advisor (Engineering) Maruti Udyog Limited -Vs- Dr.A.S.Narayana Rao & Anr. I(2010) CPJ 19(NC)

In those cases there was no expert evidence to prove the defects in the respective vehicles.  It is held in those cases that no deficiency in service  on the part of manufacturers is proved under the facts and circumstances of these cases.

7.       Admittedly in the instant case also there is no expert opinion to prove the defects.  Moreover in the complaint  also it is not pointed out as to what is nature of manufacturing defect in the vehicle.  Moreover admittedly the complainant handed over the vehicle to the respondent for repairing and respondent served letter dated 27.7.2007 to complainant/appellant informing him that defects have been detected and removed and complainant/appellant was requested under it to take back his vehicle from the workshop.  However complainant has not taken back the said vehicle.  Hence it cannot be said that defects are still there in the said vehicle. It was for the complainant to take back the delivery of the vehicle and again to take its trial and then make complaint  about the remaining defects if any.  As he did not do so, we find no reason to disbelieve the case of opponent that there is no manufacturing defect in that vehicle. Hence we are not inclined to interfere with the impugned order. The aforesaid cases relied upon by learned advocate of appellant are of no assistance to the appellant since facts and circumstances of the present case as discussed above are totally different from those cases.  Therefore appeal deserves to be dismissed.

                                                O   R    D    E    R

1.     Appeal is dismissed. 

2.     No order as to cost.

3.     Copies of the judgment be issued to both the parties.

Pronounced on dt. 17.04.2013.