- (1.) THIS is an appeal against the order dated 23.8.2004 passed by the District Forum, Nainital following the dictum of the Hon ble Supreme Court in the ruling reported in , Jose Philip Mampillil v. Premier Automobiles Ltd., 2004 1 CPJ 9and Another, whereby: (a) The opposite parties were directed to hand over the car to the complainant within one month without charging any amount. (b) The complainant was directed to take his vehicle from the workshop of the opposite party No. 1 within one month and then to take the vehicle to any authorized workshop of District Nainital, Udham Singh Nagar or Bareilly for repairs and to inform the appellants regarding the repairs by registered notice and the opposite parties were directed to ensure within one week whether the said car has been placed in that workshop. (c) In the said garage the vehicle in question the repairs of the vehicle shall be commenced. The appellants will not be at liberty to file any complaint regarding the repairs of the vehicle in any Court. After the repairs of the vehicle in the said workshop, the complainant will send a registered notice to the opposite parties and the opposite parties will ensure within one week of receipt of the notice whether the vehicle has been fully repaired. (d) The appellants were directed jointly and severally to pay the bill of repairs to the owner of that workshop. (e) The appellants were further directed to pay a compensation of Rs. 20,000/ -, loading charges of Rs. 5,000/ - and cost of litigation of Rs. 1,500/ - to the complainant. (f) In case of non -payment within one month, the opposite parties were directed to pay interest on Rs. 26,500/ - @ 10% from the date of complaint till the actual date of payment. The brief facts of the case are that the complainant purchased a Tata Indica Car on 31.5.2000 for Rs. 2,76,172.52 from the showroom of opposite party No. 1. It is alleged that there was guarantee of 18 months. At the time of purchase he has appointed Sh. Mahesh Singh as his driver, who was having licence to drive light motor vehicle. It is said that the complainant was also an experienced driver. He was using the vehicle for his personal use and he was using the vehicle to go to his office Didihat from his residence Barinaag and he was using the vehicle for small distance. It is further alleged that in November 2000, the defect in the gearbox occurred, which was informed to the opposite party No. 1. After 15 days of the information, the mechanic of the opposite party No. 1 came to Chaukari Village, Barinaag, where the vehicle was standing. The vehicle was checked by the mechanic and he brought the vehicle in working condition. The vehicle again became defective after 4 days, which was due to defect in gearbox. Information was given immediately to opposite party No. 1 but the opposite party No. 1 did not hear. Again the opposite party No. 1 was informed. After information, the mechanic of the opposite party No. 1 came to Barinaag but the vehicle could not be repaired. On the advice of the mechanic, the complainant loaded the vehicle in the truck and brought the vehicle to the workshop of opposite party No. 1 on his expenditure and the vehicle was lying in the workshop of opposite party No. 1 since 19.12.2000. The vehicle was handed over to the complainant on 22.1.2001. After sometime again the gearbox of the vehicle got defected and there was problem in driving the vehicle. The opposite party was informed regarding the defect in the vehicle but they did not repair the vehicle. On 23.3.2001 the complainant sent a registered notice to the opposite party No. 1 for the replacement of vehicle but it did not reply the said notice. It is alleged that there was defect in the vehicle from the very beginning. Thereafter the complainant filed the complaint.
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(3.) THE opposite parties filed their joint written statement and alleged that the complainant has not given full details in reply of their letter dated 22.5.2001. The allegations of the complainant are not supported with any expert evidence. It is the duty of the complainant to prove defect in the vehicle. It is alleged that the complainant is not a consumer of the opposite parties. It is said that the complainant has driven the vehicle negligently in hills. The complainant has driven the vehicle in long route without proper maintenance and the servicing of the vehicle has not been done timely in authorized service centre. It is further alleged that the complainant has himself been negligent in maintaining the vehicle. The complainant left his vehicle on the roadside and in spite of notice of opposite parties dated 6.8.2003, he did not come to take back his vehicle. So far the defects in the vehicle alleged by the complainant on 7.7.2003 are concerned, it is not supported by any expert evidence. Till the complainant pays the expenses of repairs to the opposite parties, the vehicle cannot be released in favour of the complainant. The defective gearbox has been replaced by a new gearbox, for which the complainant has given a satisfactory note on 20.9.2002. The vehicle of the complainant is in the custody of the opposite party and in spite of notice dated 6.8.2003, the complainant did not come to take his vehicle. The complainant is liable to pay expenses of repairs and also rent of garage. The complainant filed his four affidavits, the invoice issued by opposite party No. 1 regarding purchase of car, notice sent to opposite party No. 1, job card dated 25.6.2003, photocopy of his licence and licence of Sh. Mahesh Singh, driver and other relevant documents in support of his allegations. The opposite parties filed the printed satisfactory note dated 18.9.2002, history card of the vehicle from 31.5.2000 to 22.9.2002.;