ORDER P.S. Rana (Retd.) President. - Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 17.01.2017 passed by Learned District Forum in consumer complaint No. 07/2016 title Deen Bandhu v. M/s. Tata Motors Limited & Anr. Brief facts of Case: 2. Complainant Deen Bandhu filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant purchased a Nano car from opposite party No. 2 manufactured by opposite party No. 1 on dated 14.02.2012. It is pleaded that vehicle was registered with registration No.HP-52A-5979. It is further pleaded that in the month of May 2015 first gear of vehicle started slipping and it became difficult for the complainant to drive the vehicle. It is pleaded that warranty of four years or plying of vehicle to the extent of 60000 KMs whichever earlier was issued by opposite parties. It is pleaded that on 22.05.2015 complainant took the vehicle in the workshop of opposite party No. 2 and requested opposite party No. 2 to rectify the defect in the first gear slip. It is further pleaded that opposite party No. 2 told complainant that defect in the first gear slip was removed. It is further pleaded that complainant paid a sum of Rs. 7000/- on demand by opposite party No. 2 as charges for removing defect. It is pleaded that again after 4-5 months defect again occurred in the first gear and complainant again took his vehicle in the workshop of opposite party No. 2 and requested the opposite party No. 2 to Deen Bandhu v. M/s. Tata Motors Ltd. & Anr. remove the defect and opposite party No. 2 again demanded Rs. 2520/-. It is further pleaded that complainant took the vehicle on 27.10.2015 but on the next day i.e. on 28.10.2015 the same problem occurred in first gear and again complainant took the vehicle to workshop of opposite party No. 2 and opposite party No. 2 again demanded Rs. 2557/- for removing the defect. It is further pleaded that again defect occurred in the first gear of vehicle. It is further pleaded that thereafter complainant lodged a complaint before opposite party No. 1. It is pleaded that a person from opposite party No. 1 came and assured the complainant that problem would be solved shortly. It is pleaded that thereafter no response received from opposite parties. It is further pleaded that thereafter complainant lodged a complaint before opposite party No. 1. It is pleaded that a person from opposite party No. 1 came and assured the complainant that problem would be solved shortly. It is pleaded that thereafter no response received from opposite parties. Complainant sought relief of replacement of Nano car on the ground of manufacturing defect. In addition complainant sought relief of Rs. 50000/- as damages for unfair trade practice and deficiency in service. In addition complainant sought a relief of Rs. 20000/- as costs of litigation. 3. Per contra version filed on behalf of opposite party No. 1 pleaded therein that authorized dealer was appointed by opposite party No. 1 on principle to principle basis for sale of car. It is pleaded that manufacturer of vehicle and owner of vehicle are bound by terms of warranty policy applicable to vehicle. It is pleaded that complainant has suppressed the material facts from the Forum. It is further pleaded that opposite party No. 1 being the manufacturer of vehicle did not provide any service after sale directly to the customers. It is further pleaded that authorised service centre used to provide service after sale to the customers. It is pleaded that no liability could be imposed upon opposite party No. 1 for act & omission of dealer. It is pleaded that there is no evidence of expert regarding manufacturing defect. It is further pleaded that no demand notice was served by complainant upon opposite parties. It is pleaded that gear slip is an operational fault and happened due to improper driving habits. It is pleaded that complainant has no cause of action against opposite party No. 1. Prayer for dismissal of complaint sought. 4. Per contra separate version filed on behalf of opposite party No. 2 pleaded therein that present complaint is not maintainable. It is pleaded that there is no contract of warranty between complainant and opposite party No. 2 and complainant has no enforceable cause of action against opposite party No. 2. It is denied that complainant brought the vehicle in the workshop of opposite party No. 2 on 22.05.2015 to get defect of first gear removed. It is pleaded that in fact vehicle was brought on dated 22.05.2015 for accidental repair. It is denied that complainant brought the vehicle in the workshop of opposite party No. 2 on 22.05.2015 to get defect of first gear removed. It is pleaded that in fact vehicle was brought on dated 22.05.2015 for accidental repair. It is pleaded that vehicle in question was brought to workshop of opposite party No. 2 various times for accidental repairs only. Prayer for dismissal of complaint sought. 5. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum dismissed the complaint filed by complainant. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission. 6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully. 7. Following points arise for determination in present appeal. 1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal. 2. Final order. Findings upon point No. 1 with reasons: 8. Complainant filed affidavit Ext.CW-1 in evidence. There is recital in affidavit that deponent purchased Nano car manufactured by opposite party No. 1 and sold by its authorised dealer opposite party No. 2 on dated 14.02.2012. There is recital in affidavit that in order to purchase the vehicle deponent paid sum amount in cash and some amount was financed by Tata Motors Finance Ltd. There is further recital in affidavit that in the month of May 2015 gear of vehicle started slipping and it became difficult for complainant to drive the vehicle. There is further recital in affidavit that vehicle was under warranty period for the period of four years from the date of purchase or 60000 KMs which ever occurred earlier. There is recital in affidavit that on 22.05.2015 complainant took the vehicle to workshop of opposite party No. 2 and requested opposite party No. 2 to remove the defect of first gear. There is recital in affidavit that complainant paid a sum of Rs. 7000/- to opposite party No. 2 for removal of defect. There is further recital in affidavit that after four five months defect again occurred and vehicle was again brought to workshop of opposite party No. 2 for removal of defect. There is recital in affidavit that defect of first gear slip was removed and opposite party No. 2 charged Rs. 2520/-. There is further recital in affidavit that after four five months defect again occurred and vehicle was again brought to workshop of opposite party No. 2 for removal of defect. There is recital in affidavit that defect of first gear slip was removed and opposite party No. 2 charged Rs. 2520/-. There is further recital in affidavit that complainant took vehicle on 27.10.2015 but on the next day the same problem occurred in the vehicle. There is recital in affidavit that again defect was removed and complainant paid Rs. 2557/- to opposite party No. 2. There is further recital in affidavit that again problem occurred and complainant filed complaint in the toll number of opposite party No. 1 and same was registered. There is further recital in affidavit that a person from company of opposite party No. 1 came to address complaint of deponent and noticed the defect in vehicle and assured deponent that problem would be solved shortly. There is recital in affidavit that thereafter no response received from opposite parties. 9. Opposite party No. 1 filed affidavit of Shri M.K. Bipin Dass. There is recital in affidavit that deponent is posted as Manager (Law) of M/s. Tata Motors Ltd. There is recital in affidavit that deponent is manufacturer of vehicle and did not provide service after sale directly to the customers. There is recital in affidavit that authorised service centre used to provide service after sale to the customers. There is further recital in affidavit that relation between opposite party No. 1 and 2 are on the basis of principle to principle basis. There is further recital in affidavit that opposite party No. 1 could not be held liable for any omission and deficiency in service committed by opposite party No. 2. There is recital in affidavit that vehicle was brought for accidental repair and there is no evidence of expert relating to manufacturing defect in the vehicle. There is further recital in affidavit that no cause of action occurred to complainant against opposite party No. 1. 10. Opposite party No. 2 filed affidavit of Shri Mandeep Singla Ext.OW2-I in evidence. There is recital in affidavit that deponent is director of J.P. Motors. There is further recital in affidavit that there is no contract of warranty between complainant and opposite party No. 2. 10. Opposite party No. 2 filed affidavit of Shri Mandeep Singla Ext.OW2-I in evidence. There is recital in affidavit that deponent is director of J.P. Motors. There is further recital in affidavit that there is no contract of warranty between complainant and opposite party No. 2. There is recital in affidavit that vehicle was brought in the workshop of opposite party No. 2 various times for accidental repairs. 11. Submission of the learned Advocate appearing on behalf of appellant that opposite party No. 2 has charged Rs. 7000/- + Rs. 4450/- + Rs. 2520/- + Rs. 2557/- for repair of first gear during warranty period illegally and on this ground appeal be allowed is decided accordingly. It is proved on record that complainant purchased a vehicle from opposite party No. 2 on dated 14.02.2012. It is also proved on record that warranty period was for four years from the date of purchase or upto 60000 KMs whichever occurs earlier. It is proved on record that at the time of repair four years were not expired and at the time of repair vehicle was not plied more than 60000 KMs. It is well settled law that during warranty period opposite parties are under legal obligation to repair the vehicle free of charges. State Commission has also perused the tax invoices dated 23.05.2015, 28.05.2015, 27.10.2015 & 31.10.2015 issued by J.P. Motor with stamps. There is recital in the tax invoices that J.P. Motors is authorized dealers of Tata Motors. It is proved on record that tax invoices cited supra have been issued by J.P. Motors as authorized dealer of Tata Motors. There is recital in tax invoices placed on record that warranty was not expired and vehicle was not plied more than 60000 KMs. It is proved on record that J.P. Motors has charged Rs. 16527/- in total. Plea of opposite party that vehicle was brought for accidental repair is defeated on the concept of ipse dixit (An assertion made without proof). There is no evidence on record in order to prove that accident of the vehicle was occurred. No affidavit of any eye witness was filed or FIR placed on record in order to prove that accident of the vehicle occurred. Hence plea of opposite parties that vehicle was brought to workshop due to accidental repairs is not proved on record. 12. No affidavit of any eye witness was filed or FIR placed on record in order to prove that accident of the vehicle occurred. Hence plea of opposite parties that vehicle was brought to workshop due to accidental repairs is not proved on record. 12. Submission of learned Advocate appearing on behalf of Tata Motors that vehicle i.e. Nano Car could not be replaced for manufacturing defect because no guarantee card was issued by opposite party No. 1 is decided accordingly. It is well settled law that guarantee and warranty are entirely two different concepts under law. It is well settled law that in guarantee replacement is permissible and in warranty only repair is permissible. As per law it is necessary to examine expert in order to prove manufacturing defect. See 2017(3) CPR 35 NC Mahender Kumar v. Hero Honda Motors Ltd. and other. It is held that in the absence of guarantee card on record and in the absence of expert report it is not expedient in the ends of justice to order opposite party No. 1 to replace Nano car. 13. Submission of learned Advocate appearing on behalf of M/s. Tata Motors that contract between opposite parties No. 1 & 2 was on the basis of principle to principle basis and was not on the basis of principle agent and on this ground appeal be dismissed is decided accordingly. State Commission has carefully perused the tax invoices issued by J.P. Motors for repairs dated 23.05.2015, 28.05.2015, 27.10.2015 & 31.10.2015. It is proved on record that tax invoices were issued by J.P. Motors to the complainant not on the basis of principle to principle basis but were issued as authorized dealer of Tata Motors. It is held that Tata Motors is legally liable for act and conduct of authorised dealers on the concept of vicarious liability. See 2016(III) CPJ 521 NC. G. Krishna Kumar v. Har Auto Private Ltd. 14. Submission of learned Advocate appearing on behalf of J.P. Motors that consideration amount was charged from complainant for repairs works only and on this ground appeal be dismissed is decided accordingly. It is well settled law that during warranty period defect should be repaired free of costs as per terms and conditions of warranty. Accidental repairs not proved on record. In view of the above stated facts point No. 1 is decided accordingly. Point No. 2: Final Order 15. It is well settled law that during warranty period defect should be repaired free of costs as per terms and conditions of warranty. Accidental repairs not proved on record. In view of the above stated facts point No. 1 is decided accordingly. Point No. 2: Final Order 15. In view of findings upon point No. 1 above appeal is partly allowed. It is ordered that opposite parties No. 1 & 2 will jointly and severally refund an amount of Rs. 16527/- (Sixteen thousand five hundred twenty seven) charged from the complainant as repair charges of defect in first gear of the vehicle during warranty period. It is further ordered that opposite parties No. 1 & 2 jointly and severally will pay an amount of Rs. 20000/- (Twenty thousand) to complainant for mental agony and harassment. It is further ordered that opposite parties will pay jointly and severally a sum of Rs. 5000/- (Five thousand) as litigation costs to complainant. Other relief sought by complainant is declined in the ends of justice and on the principle of natural justice. Order of learned District Forum is modified to this extent only. Amount will be paid by opposite parties No. 1 & 2 jointly and severally within one month after the receipt of copy of order failing which interest @ 9% per annum from the date of institution of complaint till realization will be charged. Tax invoice dated 23.05.2015, 28.05.2015, 27.10.2015 & 31.10.2015 issued by opposite party No. 2 as authorised dealer of opposite party No. 1 will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum along with certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.