ORDER P.S. Rana (R), President. - Appeal No. 344/2016 & Appeal No. 347/2016 filed against the same order passed by learned District Forum in consumer complaint No. 263/2013 title Mohit Sharma vs. M/s. Satluj Motors and others. Both appeals are consolidated for disposal in order to avoid conflicting orders. Brief facts of Case: 2. Mohit Sharma complainant filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that opposite party No. 1 is authorised dealer of Tata Motors and opposite party No. 2 is the manufacturer of Tata Passenger CaRs. It is pleaded that opposite party No. 3 is financer. It is further pleaded that complainant purchased a new Tata Indigo (XL) Classic Dicor Car Model 2007 from opposite party No. 1 on dated 21.11.2007 in consideration amount of Rs. 620831/-(Six lac twenty thousand eight hundred thirty one) vide invoice No. Sat Mo-0708-00393. It is further pleaded that Poly V Belt and Alternator Belt of the vehicle did not work properly and complainant informed about the defect to opposite party No. 1. It is pleaded that opposite party No. 1 changed the engine oil and filter of the car and also change Poly V Belt and Alternator Belt and charge amounts. It is further pleaded that thereafter several times defect occurred in the vehicle and several times matter was reported to opposite parties but defect was not rectified. It is pleaded that there was manufacturing defect in the vehicle and it is pleaded that complainant visited number of times in the workshop of opposite party for rectification of fault but defect was not rectified by the opposite parties. Complainant sought total relief of Rs. 710331/-(Seven lac ten thousand three hundred thirty one) with interest @ 12% per annum from the date of purchase of vehicle till realization. Complainant also sought relief that opposite parties No. 1 & 2 be burdened with costs and compensation to the tune of Rs. 3.00 lac. 3. Per contra version filed on behalf of opposite party No. 1 pleaded therein that complaint is not maintainable. It is pleaded that complainant did not come to the court with clean hands. It is further pleaded that opposite party No. 1 did not commit any deficiency in service and complaint is bad for non-joinder of necessary party. 3.00 lac. 3. Per contra version filed on behalf of opposite party No. 1 pleaded therein that complaint is not maintainable. It is pleaded that complainant did not come to the court with clean hands. It is further pleaded that opposite party No. 1 did not commit any deficiency in service and complaint is bad for non-joinder of necessary party. It is admitted that opposite party No. 1 is authorised dealer of opposite party No. 2 and opposite party No. 2 is the manufacturer and it is also admitted that opposite party No. 3 is the financer. It is also admitted that complainant purchased the vehicle from opposite party No. 1 in consideration amount of Rs. 620831/-(Six lac twenty thousand eight hundred thirty one). It is pleaded that opposite party had rectified all the problems at the time of service of the vehicle to the satisfaction of complainant. It is further pleaded that opposite party No. 1 had charged only price of consumable items from complainant. It is further pleaded that problem faced by complainant was due to his own negligence. It is further pleaded that opposite party has removed the defect without charging any money during warranty period. It is pleaded that complainant was asked to pay the charges of consumable items which does not fall under warranty category. It is pleaded that vehicle did not suffer from any manufacturing defect as alleged by the complainant. It is further pleaded that complainant has no cause of action to file the present complaint. Prayer for dismissal of complaint sought. 4. Per contra version filed on behalf of opposite party No. 3 Tata Motor Finance pleaded therein that complaint is not maintainable. It is pleaded that complainant has concealed the material facts and present complaint is barred by principle of resjudicata. It is further pleaded that complainant did not pay the installments amount. It is pleaded that arbitration proceedings were initiated at Mumbai and learned Arbitrator has passed the award dated 21.07.2011 under Arbitration Act. It is pleaded that proceedings against opposite party No. 3 are not maintainable under Consumer Protection Act 1986. Prayer for dismissal of complaint sought. 5. Opposite party No. 2 did not appear before learned District Forum despite service and learned District Forum proceeded exparte against opposite party No. 2. It is pleaded that proceedings against opposite party No. 3 are not maintainable under Consumer Protection Act 1986. Prayer for dismissal of complaint sought. 5. Opposite party No. 2 did not appear before learned District Forum despite service and learned District Forum proceeded exparte against opposite party No. 2. Learned District Forum ordered opposite parties No. 1 & 2 jointly and severally to pay compensation to the complainant to the tune of Rs. 50000/-(Fifty thousand). In addition learned District Forum ordered opposite parties No. 1 & 2 to pay litigation costs to the tune of Rs. 3000/-(Three thousand) to complainant. Feeling aggrieved against the order passed by learned District Forum opposite party No. 1 filed appeal No. 344/2016 and complainant Mohit Sharma filed appeal No. 347/2016 before H.P. State Commission. 6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully. 7. Following points arises for determination in present appeals. 1. Whether appeal No. 344/2016 title M/s. Satluj Motors vs. Mohit Sharma & others is liable to be accepted as mentioned in memorandum of grounds of appeal. 2. Whether appeal No. 347/2016 title Mohit Sharma vs. M/s. Satluj Motors & others is liable to be accepted as mentioned in memorandum of grounds of appeal. 3. Final order. Findings upon point No. 1 with reasons relating to F.A. No. 344/2016 : 8. Complainant filed affidavit by way of evidence. There is recital in affidavit that opposite party No. 1 is authorised dealer of Tata Motors and opposite party No. 2 is the manufacturer and opposite party No. 3 is the financer. There is further recital in affidavit that deponent purchased a new Tata Indigo (XL) Classic Dicor Car Model 2007 from opposite party No. 1. There is further recital in affidavit that complainant paid marginal money to opposite party No. 1 and remaining costs of the car to the tune of Rs. 490000/-(Four lac ninety thousand) was financed through opposite party No. 3. There is further recital in affidavit that vehicle started giving trouble qua Poly V Belt and Alternator Belt. There is further recital in affidavit that opposite party No. 1 changed the Poly V Belt and Alternator Belt but defects were not cured. 490000/-(Four lac ninety thousand) was financed through opposite party No. 3. There is further recital in affidavit that vehicle started giving trouble qua Poly V Belt and Alternator Belt. There is further recital in affidavit that opposite party No. 1 changed the Poly V Belt and Alternator Belt but defects were not cured. There is further recital in affidavit that vehicle was brought several times to the workshop of opposite party No. 1 but opposite party No. 1 did not remove the defects and committed deficiency in service. There is further recital in affidavit that there was manufacturing defect in the vehicle. 9. Opposite party No. 1 filed affidavit of Shri Suman Sharma Area Manager. There is recital in affidavit that complainant purchased Tata Indigo (XL) Classic Model 2007 from opposite party No. 1 in consideration amount of Rs. 620831/-(Six lac twenty thousand eight hundred thirty one). There is further recital in affidavit that opposite party No. 1 has no concern with opposite party No. 3 i.e. finance company. There is further recital in affidavit that opposite party No. 1 repaired the vehicle to the satisfaction of complainant. There is further recital in affidavit that opposite party No. 1 only charged price of consumable items. There is further recital in affidavit that complainant has faced the problem due to his own negligence. There is further recital in affidavit that opposite party No. 1 did not commit any deficiency and provided best services to the complainant. There is recital in affidavit that vehicle did not suffer any manufacturing defect. Contesting opposite party No. 3 did not file any affidavit by way of evidence as per mode mentioned under section 13(4) of Consumer Protection Act 1986. 10. Submission of learned Advocate appearing on behalf of appellant namely M/s. Satluj Motors dealer that learned District Forum did not properly appreciate the evidence placed on record and committed miscarriage of justice upon the appellant is decided accordingly. Appellant pleaded that complainant himself mishandled the vehicle and defect occurred in the vehicle due to mishandling of vehicle by the complainant. Plea of appellant that complainant mishandled the vehicle is defeated on the concept of ipse dixit (An assertion made without proof). Appellant did not file any affidavit of expert on record in order to prove that complainant had himself mishandled the vehicle. Plea of appellant that complainant mishandled the vehicle is defeated on the concept of ipse dixit (An assertion made without proof). Appellant did not file any affidavit of expert on record in order to prove that complainant had himself mishandled the vehicle. It is well settled law that facts asserted by a party should be proved by a party strictly as per mode mentioned under section 13(4) of Consumer Protection Act 1986. In the present case appellant has filed affidavit of only Suman Sharma Area Manager. Suman Sharma Area Manager did not personally inspected the vehicle and there is no recital in affidavit that Suman Sharma Area Manager has personally inspected the vehicle. Suman Sharma Area Manager has filed the affidavit on the basis of derived knowledge. State Commission is of the opinion that it is not expedient in the ends of justice and on the concept of natural justice to rely upon the affidavit filed by Suman Sharma Area Manager on derived knowledge from third person. Suman Sharma is not eye witness of the fact that complainant has mishandled the vehicle. It is well settled law that controversial fact should be proved by way of direct eye witness. 11. Submission of learned Advocate appearing on behalf of appellant M/s. Satluj Motors that present consumer complaint is barred on the principle of resjudicata is decided accordingly. It is proved on record that consumer complaint No. 90/2009 title Mohit Sharma vs. M/s. Satluj Motors & others was initially filed before learned District Forum Kangra at Dharamshala (H.P). It is proved on record that thereafter consumer complaint No. 90/2009 was disposed by learned District Forum Kangra at Dharamshala and learned District Forum ordered opposite party No. 3 to refund Rs. 413000/- to the complainant alongwith interest & 9% per annum from the date of complaint till its actual payment. It is also proved on record that learned District Forum also ordered opposite party No. 3 to pay compensation to the tune of Rs. 10000/-(Ten thousand) to complainant for mental agony harassment and financial loss. The complainant was also awarded litigation costs to the tune of Rs. 5000/-(Five thousand). It is proved on record that feeling aggrieved against the order passed by learned District Forum Kangra at Dharamshala Tata Motors Finance Ltd. filed appeal No. 186/2012 before H.P. State Commission. 10000/-(Ten thousand) to complainant for mental agony harassment and financial loss. The complainant was also awarded litigation costs to the tune of Rs. 5000/-(Five thousand). It is proved on record that feeling aggrieved against the order passed by learned District Forum Kangra at Dharamshala Tata Motors Finance Ltd. filed appeal No. 186/2012 before H.P. State Commission. It is proved on record that appeal was decided by State Commission on dated 20.06.2013 and it was held by State Commission that complaint was not maintainable before learned District Forum Kangra at Dharamshala. State Commission ordered to return the complaint to the complainant for presentation before appropriate Forum having territorial jurisdiction. It is proved on record that thereafter complainant filed present complaint before learned District Forum Mandi. In view of the fact that State Commission set aside the order of learned District Forum Kangra at Dharamshala dated 03.04.2012 announced in consumer complaint No. 90/2009 and in view of fact that State Commission returned the complaint to the complainant for presentation before appropriate Forum having territorial jurisdiction it is held that present complaint is not barred on concept of resjudicata because no order on merits was passed by State Commission and order passed by learned District Forum Kangra at Dharamshala was set aside by State Commission. 12. Submission of learned Advocate appearing on behalf of appellant that present complaint is barred by way of limitation is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that State Commission in appeal No. 186/2012 returned complaint to the complainant with order to present the same before appropriate Forum having territorial jurisdiction. State Commission is of the opinion that limitation to file fresh complaint before learned District Forum would start w.e.f. 20.06.2013. Fresh complaint was filed by the complainant before learned District Forum Mandi on dated 07.11.2013. Hence it is held that present complaint was filed by complainant before learned District Forum Mandi within limitation. 13. Affidavit filed by complainant is trustworthy reliable and inspires confidence of State Commission. It is proved on record that complainant brought the new brand vehicle to the workshop of opposite party No. 1 thrice and it is also proved on record that Poly V Belt and Alternator Belt of the vehicle were changed thrice within one year of purchase of vehicle. It is proved on record that complainant brought the new brand vehicle to the workshop of opposite party No. 1 thrice and it is also proved on record that Poly V Belt and Alternator Belt of the vehicle were changed thrice within one year of purchase of vehicle. It is also proved on record that engine and gear box was also replaced within one year of purchase of vehicle. The factum that Poly V Belt, Alternator Belt, engine & gear box of new brand car was changed within one year ipso facto prove that complainant who has purchased brand new car has suffered mental agony and harassment. In view of above stated facts point No. 1 is answered accordingly. Findings upon point No. 2 with reasons relating to F.A. No. 347/2016 : 14. Evidence is not repeated again in order to avoid repetition. Submission of learned Advocate appearing on behalf of appellant Mohit Sharma that there was manufacturing defect in the vehicle and learned District Forum has not granted adequate compensation to complainant qua manufacturing defect is decided accordingly. It is well settled law that manufacturing defect should be proved by way of examination of expert only. In the present case complainant Shri Mohit Sharma did not examine any expert in order to prove manufacturing defect in the vehicle. Mohit Sharma is not an expert and affidavit of Mohit Sharma alone is not sufficient to hold that there was manufacturing defect in the vehicle. State Commission is of the opinion that Mohit Sharma was under legal obligation to file affidavit of expert in order to prove the factum of manufacturing defect in the vehicle. In the absence of evidence of expert it is not expedient to hold that there was manufacturing defect in the vehicle. See 2010 (1) CPJ 19 (NC) title Dr. K. Kumar Advisor (Engineering) Maruti Udyog Limited vs. Dr. A.S. Narayana Rao & Anr. See 2016 (4) CPR 412 NC M/s. Tractor Dealer Farm Equipment and Machinery company vs. Ghan Shayam Maurya & other. 15. Submission of learned Advocate appearing on behalf of appellant Mohit Sharma that learned District Forum has not granted adequate compensation to the complainant is also decided accordingly. A.S. Narayana Rao & Anr. See 2016 (4) CPR 412 NC M/s. Tractor Dealer Farm Equipment and Machinery company vs. Ghan Shayam Maurya & other. 15. Submission of learned Advocate appearing on behalf of appellant Mohit Sharma that learned District Forum has not granted adequate compensation to the complainant is also decided accordingly. It is proved on record that opposite party No. 1 changed Poly V Belt and Alternator Belt thrice and it is also proved on record that opposite party No. 1 has change engine and gear box. It is proved on record that opposite party No. 1 had charged from complainant qua consumable items only. It is well settled law that during warranty period vehicle should be repaired free of costs and it is well settled law that after expiry of warranty vehicle should be repaired on the payment of service costs and items costs. It is also well settled law that vehicle is replaced only when the guarantee card is issued. In the present case there is no evidence on record that guarantee card was issued in favour of complainant. In view of the above stated facts it is held that it is not expedient in the ends of justice and on the concept of principle of natural justice to interfere upon compensation granted to complainant by learned District Forum. Point No. 2 is decided accordingly. Point No. 3 : Final Order 16. In view of findings upon points No. 1 & 2 both appeals i.e. F.A. No. 344/2016 and F.A. No. 347/2016 are dismissed. Certified copy of order be placed in the file of F.A. No. 347/2016 forthwith. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith 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. Both Appeals i.e. F.A. No. 344/2016 & F.A. No. 347/2016 are disposed of. Pending application(s) if any also disposed of.