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"OPs be directed to replace the defective activa scooter with new one and to pay Rs.1,00,000/- as compensation besides Rs.11,000/- as litigation expenses."

3. Upon issuing notice, OPs had appeared through Counsel and filed their separate written versions.

4. OP No.1 filed written reply by raising certain preliminary objections that the Complainant had concealed the true and correct facts and had not approach with clean hands; the District Commission had no jurisdiction to try the Complaint. The Complaint was a gross abuse of process of law. It was also submitted in written reply that the scooter was in perfect running condition and there was no defect as alleged by the Complainant. On 17.12.2019, the Complainant lodged the Complaint with OP No.2 that his scooter was not starting and accordingly OP No.2 had sent a service pickup van at the house of the Complainant to pick up the scooter for repairs. The job sheet dated 17.12.2019 was issued. OP No.2 at its workshop had also checked the scooter and found that carburetor was chocked. It was cleaned and some other minor problems of 'moulding side stand loose and noise' were also rectified. The repair/rectification was done free of cost as the scooter was under the warranty period, but the Complainant did not turn up to take back his scooter despite call made by OP No.2. The Complainant had served a legal notice dated 21.12.2019 with false allegations to which OP had replied vide letter dated 10.01.2020 requesting the Complainant to take back his rectified scooter but he did not bother to check his scooter and to take the delivery. Letters dated 22.01.2020 and 20.02.2020 were also written by OP No.2 to the Complainant to take back his scooter but he did not take the delivery of the scooter and by taking benefit of his own wrong he filed the Complaint by concealing certain material facts. No such assurance was given by OP No.1 to replace the scooter. As and when Complainant had brought his scooter for free service, it was done by attending. The OPs were also ready to provide further service to the scooter in question as per warranty terms and conditions. No expert report was produced on record by the Complainant. On merits also OP No.1 had reiterated the same version as averred above. OP No.1 had denied that there was any deficiency in service and had prayed for dismissal of the complaint.

12. The grievance of the Complainant is that there was manufacturing defect in the said scooter as there were frequent problems which were not rectified by the OPs and it was a case of harassment at the hand of the OPs and the Complainant had sought replacement of the scooter. Admittedly, the scooter was purchased on 24.05.2019 and within a period of 6 months, it had covered a distance of approximately 5900 kilometers. Meaning thereby the vehicle was used/run for a longer period. The scooter of the Complainant was repaired that too without any amount. Meaning thereby whatever the problem was raised and pointed out was removed.

Now the question for consideration by us is as to (i) whether the said scooter was having any manufacturing defect or not or (ii) whether it was required to be replaced when certain minor problems had arisen.

We have perused the record of the case carefully. The Complainant had not brought on record anything to suggest that there was any manufacturing defect in the scooter. Meaning thereby the Complainant had failed to prove the allegations of manufacturing defect in the scooter. Simply on the basis of averments made in the Complaint and the arguments, it cannot be said to be a case of manufacturing defect. The onus was on the Complainant himself to prove that it was a case of manufacturing defect. The District Commission has also relied upon the judgment of the Hon'ble Supreme Court of case "SGS India Limited Vs. Dolphin International Limited" Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) wherein it has been held that the onus to prove deficiency in service is on the part of Complainant under the Consumer Protection Act and it is the Complainant who had approached the Commission without having any proof of 'deficiency in service'. The OPs cannot be held liable for deficiency in service. In said judgment, the Hon'ble Supreme Court had relied upon another judgment of case titles "Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines & another" wherein it has been held that the burden of proving any 'deficiency in service' is always upon the person who alleges so. The ratio of aforesaid judgments are applicable in the present. In the case in hand, the Complainant has alleged manufacturing defect in the scooter. Meaning thereby the burden to prove the manufacturing defect is always on the person who alleges so but nothing has been brought on record by way of any expert opinion or any other evidence to prove that it was a case of manufacturing defect.

We find no force in this argument raised by learned Counsel for the Appellant/Complainant that there was manufacturing defect in the scooter and as such the Appellant/Complainant is not entitled for replacement of scooter. Moreover, there is no force in the arguments that scooter of the Complainant falls in the defective lot manufactured between 04.02.2019 to 03.07.2019, as Complainant had failed to prove any manufacturing defect in the said scooter.

13. As per the versions of the OPs, on 17.12.2019, the said scooter was not getting start and OP No.2 had sent mechanic to the house of the Complainant and the OP No.2 had sent service pickup van at the house of the Complainant to pickup the scooter for repair. From perusal of versions of the OPs, it is apparent that OPs had picked up the scooter from the house of the Complainant for its repair. The Respondents/OPs have not denied the version of the Appellant/Complainant that OP No.2 had taken 25 days for repair of the said scooter. As per the version of the Respondents/OPs, the repair was minor but they had failed to explain as to why they had taken 25 days in repair. As per the versions of the Appellant/Complainant, he had purchased the new scooter of TVS Company on 11.01.2020, as is clear from Ex.C-14. Meaning thereby, the scooter was still in the workshop of the OPs. In case, the Complainant had not taken the delivery of the scooter, the OPs could have dropped the scooter at the house of the Complainant. No such efforts were made by the Respodents/OPs. Now more than four years have elapsed and the said scooter is still at workshop of OPs. In view of facts and circumstances of the case, the OPs are liable to deliver the scooter after its repair free of cost at the house of the Complainant. The Complainant had remained deprived off using his scooter for a longer period and as such the Complainant is held entitled for compensation as well as litigation expenses.