At, National Consumer Disputes Redressal Commission NCDRC
By, THE HONOURABLE MR. JUSTICE K.S. CHAUDHARI
By, PRESIDING MEMBER
For the Petitioner: Radha Rao, Advocate. For the Respondents: R1, Nemo/ Ex-parte, R2, Rajesh Mootha, Advocate.
This revision petition has been filed by the petitioner against the order dated 25.04.2013 passed by the learned A.P. State Consumer Disputes Redressal Commission, Hyderabad (in short, ‘the State Commission’) in Appeal No. 840/2012 – M/s. Mahindra Two Wheelers Ltd. Vs. Smt. Avagadda Viveka Chaitanya Gowri & anr. by which, while allowing appeal partly, order of District forum allowing complaint was modified.
2. Brief facts of the case are that complainant/petitioner purchased two wheeler from OP No. 1/Respondent No. 1 on 26.11.2010 for a sum of Rs. 53,700/- which was manufactured by OP No. 2/Respondent No.2. Even before delivery, vehicle was having trouble in starting and thereafter from time to time complainant was facing trouble in the vehicle and OP inspite of warranty failed to rectify defects. Alleging deficiency on the part of OPs, complainant filed complaint before District Forum. OP No. 1 was proceeded ex-parte. OP No. 2 resisted complaint and submitted that complainant did not avail services as per terms of warranty. OP undertakes to replace or repair free of charge within period of 24-months from date of sale or running of 20,000 kms. whichever is earlier, but warranty becomes void if the purchaser fails to observe instructions and vehicle is not maintainable as per schedule given in the manual. It was further submitted that replacement of vehicle was not warranted and only defective parts could be replaced and denying any deficiency on his part prayed for dismissal of complaint. Learned District Forum after hearing parties, allowed complaint and directed OPs jointly and severally to deliver new vehicle of the same model or to refund Rs.50,964/- and further directed to pay compensation of Rs.15,000/- and cost of Rs.5,000/-. OP No. 2 filed appeal and learned State Commission vide impugned order allowed appeal partly and modified order of District Forum and directed OP to check scooter and pay amount of Rs.5,000/- as compensation against which, complainant has filed this revision petition along with application for condonation of delay.
3. None appeared for Respondent No.1 and he was proceeded ex-parte.
4. Heard learned Counsel for the parties and perused record.
5. As there is delay of only 8 days in filing revision petition, delay stands condoned for the reasons mentioned in the application.
6. Learned Counsel for the petitioner submitted that even without appeal by OP No.1, learned State Commission committed error in modifying order qua OP No.1 and further submitted that inspite of proof of manufacturing defect, learned State Commission committed error in modifying order of District Forum; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the Respondent No. 2 submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.
7. Perusal of record reveals that complainant failed to prove any manufacturing defect in the vehicle and learned State Commission after elaborate discussion rightly observed that there was no manufacturing defect in the vehicle, order of District Forum allowing replacement of vehicle was not proper. In such circumstances, replacement of vehicle by OP No. 2 does not arise and I do not find any illegality, irregularity or jurisdictional error in the impugned order to the extent of liability of OP No. 2.
8. Perusal of record reveals that OP No. 1 was proceeded ex-parte by District Forum and OP No. 1 did not prefer any appeal against order of District Forum; in such circumstances, learned State Commission in appeal filed by OP No. 2 committed error in modifying impugned order qua OP No.1 also. Order qua OP No. 1 could have been modified only when appeal had been filed by OP No.1 and in the absence of appeal by OP No. 1, learned State Commission committed error in modifying order of District Forum qua OP No. 1 and to this extent, impugned order is liable to set aside. OP No. 2 has not preferred any revision petition against impugned order and thus, impugned order has attained finality against OP No.2.
9. Consequently, revi
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sion petition is partly allowed and order dated 25.04.2013 passed by the learned State Commission in Appeal No. 840/2012 – M/s. Mahindra Two Wheelers Ltd.Vs. Smt. Avagadda Viveka Chaitanya Gowri & anr. is modified and impugned order passed in favour of OPs is modified and instead of OPs, only appellant/OP No. 2 is substituted and directed to check the scooter of the complainant and pay amount of Rs.5,000/- towards compensation. Parties to bear their costs.