BEFORE : HON’BLE MR. SUBHASH CHANDRA, PRESIDING MEMBER HON’BLE AVM J. RAJENDRA, AVSM VSM (Retd.), MEMBER For the Petitioner Mr Ritesh Khare, Advocate (VC) For the Respondent Mr Bharat Swaroop Sharma and Ms Deepinder Kaur, Advocates ORDER PER SUBHASH CHANDRA - This revision petition under Section 21 (B) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order dated 27.12.2016 in First Appeal No. 128 of 2016 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (in short, the ‘State Commission’) arising out of order dated 18.11.2015 in Complaint No. 159 of 2014 of the District Consumer Disputes Redressal Forum-II, Lucknow (in short, the ‘District Forum’).
2. The relevant facts of the case in brief are that the petitioner had purchased a Bread Baking Plant from the respondent who is a manufacturer and exporter of Industrial Automatic Diesel/ Gas Fired Oven and baking equipment at a cost of Rs.8,19,800/-. The payment was made after obtaining a bank loan of Rs.4,56,000/- in instalments. The machine was delivered and installed by an engineer of the respondent. However, according to the petitioner the machine did not function efficiently and consumed excess diesel. Despite complaints to the respondent the defect could not be rectified even after running it for some time as advised by the respondent. CC no. 159 of 2014 was filed by the petitioner before the District Consumer Disputes Redressal Forum II, Lucknow (in short, ‘the District Forum’) praying for refund of Rs.8,19,840/- with interest since the machine was admittedly defective and the complaint had been filed within two months of the purchase. The District Forum allowed the complaint and held the respondent liable for deficiency in service and directed refund of Rs.8,19,840/- with 9% interest along with litigation expenses of Rs.15,000/- and Rs.5000/- towards mental, physical harassment and legal expenses. 3. The respondent challenged this order through an appeal no.128 of 2016 before the State Commission on the basis of territorial jurisdiction and on merits. 4. The petitioner filed an application seeking permission to take on record the expert report as per which the machine was stated to be of low quality of steel and had high consumption of diesel. The State Commission has disallowed the application to take the expert report on record. The appeal was allowed and the order of the District Forum was set aside. It was held that it was not proven that the machine was defective and therefore, there was no question of unfair trade practice or deficiency in service. 5. We have heard the learned counsel for the parties and have carefully perused the material on record. 6. From the facts of this case, it is apparent that the bread making machine purchased by the petitioner was not covered any warranty. It is evident that the machine started giving trouble in the initial days after installation by the engineer of the respondent. Section 13(1) (c) of the Consumer Protection Act, 1986 provides as under: "(c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum." [Emphasis added] 7. In the instant case no such report has been brought on record to establish any manufacturing defect that warrant award holding the equipment to be suffering from a manufacturing defect warranting refund with compensation. The report of the “expert” sought to be placed on record by the petitioner before the State Commission has also been considered. This “report” has been obtained from one Md Fakhru, Supreme Enterprises, Delhi, who is working as an Oven Mechanic, which is a private entity and does not qualify to be considered as an “appropriate laboratory”. The State Commission cannot be faulted for not having considered the same. Therefore, the conclusion of the District Forum that there was no inherent manufacturing defect in the said machine warranting refund of consideration paid for it, along with compensation in the form of interest @ 9% cannot be sustained in terms of the provisions of the Consumer Protection Act, 1986. 8. In the light of the above discussion, we do not find any reason that warrants any interference to disturb the finding of the State Commission. The revision petition is accordingly dismissed. There shall be no order as to costs. All pending IA, if any also stand disposed of by this order. |
