Sri Utpal Kumar Bhattacharya, Member

Instant Appeal u/s 15 0f the C P Act, 1986 has been filed by the Appellant/OP No. 1 challenging the Judgment and Order No. 64 dated 30/05/2017 passed by the Ld. District Forum, Kolkata-I (North) in Complaint Case No CC/07/139 allowing the Complaint on contest with cost against the O.Ps. The O.Ps were jointly and/or severally directed to refund the amount of Rs. 2,55,000/-along with payment of compensation for harassment and mental agony and litigation cost of Rs. 50,000/-and Rs. 10,000/- respectively to the Respondent/Complainant within 30 days from the date of the impugned Judgment and Order, in default, as ordered, an interest @ 10% p.a. shall accrue to the entire sum due to the credit of the Complainant till full realization.

The Appeal bearing No A/1048/2017 filed by the Appellant/OP No. 3, the Respondent No. 2/OP No 3 herein, being originated from the same impugned Judgment and Order, was given an analogous hearing and accordingly, the same Appeal would be disposed of by the Judgment and Order passed in the instant Appeal.

Briefly stated, the fact having relevance with the disposal of the instant Appeal, was that the Respondent/Complainant purchased one Maruti Omni Van from the Appellant/OP No.1 on payment of a consideration of Rs. 2,55,000/-. Said van, after running a distance of 10 to 15 Kms, developed certain abnormal sound at its lower front and rear portion. The Respondent/Complainant visited the office of the OPs and as per their advice, sent the vehicle for repairing to the workshop at Taratala. Said Service Centre pleaded its incapability to repair the Subject vehicle and referred the same to the Darga Road workshop, the allegedly appropriate shop for taking up such job. No effective result being received from there too, the disgusted Respondent/Complainant handed over the disputed vehicle to the Appellant/OP No.1 who was in possession of the vehicle as of now since then. Repeated persuasion for getting done the job of repairing did not evoke the desired result. The Respondent/Complainant then, finding no other alternative other than the legal path, filed the Complaint Case before the Ld. District Forum with the prayer for replacement of the vehicle as well as compensation.

The Complaint Case was once decided in favour of the Respondent/Complainant. The aggrieved OPs  challenged the said decision filing an Appeal before this Commission when the Commission decided the Appeal remanding the same to the Ld. District Forum for disposal with the direction to hear the case further with due compliance of all formalities at the time of disposal of the case including acceptance of the evidence, cross examination etc.

In course of further hearing of the case by the Ld. District Forum in the lines of the above direction passed by this Commission, the OPs once again had filed a petition praying for revision of the order passed by the Ld. District Forum rejecting a prayer for appointment of an expert for examining the vehicle. This Commission passed an order in favour of the OPs allowing the revision. The vehicle was accordingly referred to be inspected by the PVD. Kolkata, Govt. of West Bengal by the Ld. District Forum. The report received from the PVD was not considered by the Ld. District Forum at the time of passing the impugned Judgment and Order. District Forum, rather, passed the order based on a false plea taken by the Respondent/Complainant to the effect that the Appellant/OP No. 1 did not produce the vehicle before the M V authorities for inspection just to delay the matter.

Being aggrieved with the allegedly perverse order passed by the Ld. District Forum, the Appellant/OP No. 1 filed the instant Appeal.

The Appellant/OP No.1 and the Respondent No. 2/OP No. 3 were heard through their respective Ld. Advocates. The Respondent No. 1/ Complainant was found absent today. He was also found absent on last occasion. In order to ensure avoidance delay in delivering justice, we felt it prudent to hear the contesting two sides.

Ld. Advocate appearing on behalf of the Appellant/OP No.1 started his submission pointing out a mistake allegedly committed by the Ld. District Forum by recording in the impugned order to the effect that the subject vehicle was not tested by the MVI authorities as the same was not produced before the said authorities by the Appellant/OP No. 1 in terms of the direction in the impugned order. The fact remained that the vehicle was rightly produced before the M. V authorities for inspection as it would reveal from the running pages 40, 41 and 42.

As submitted, the report at running page 42 which contained the technical observations regarding problems in the vehicle, revealed that there was no abnormality in door glass noise, engine knocking/misfiring, wheel noise or door noise—rear. The only abnormality was shown in differential noise which, as observed, was generating “few roaring noise” at the speed of 65 Kms/h to 75 kms/h. As contended, the vehicle which was longly out of road and was not a heavy one, might, for obvious reason, generate Differential noise when the vehicle speed was as high as 65 to 75 Kms/h.

The observation of the District Forum in the last para of running page 10 towards the failure of the Appellant/OP No.1 to produce the subject vehicle for testing by the concerned authority was, as contended, absolutely wrong in view of the above. It was, as continued, also wrong to blame the Appellant/OP No.1 for allegedly resorting to the dilatory tactics as observed in the same para of the impugned order.

Referring to para 7 of the Complaint at running page 14, the Ld. Advocate submitted that the vehicle was not fully defective as observed therein. There was, in fact, no specific allegation about the defect alleged. The vehicle was also within the period of warranty. It might have been repaired with replacement of parts, if necessary, had such repairing been intended for as the same was done on earlier occasions as pointed out at para 7, 8 and 9 of the WV by the Appellant/OP No.1. The Ld. Advocate pointed out that in the WV, at para-10, the Ld. Advocate had rightly pointed out that the rash driving of the vehicle by the Respondent/Complainant might be the reason for developing in the vehicle the alleged defect.

The Ld. Advocate once again drew the notice of the Bench to running page- 41, the inspection report of the M V authorities, which revealed that the M.V authorities ran the vehicle for 55 Kms before arriving at their findings at running page-42. The subject vehicle’s running almost un- interrupted for 55 Kms, although it was out of the road for a long period, clearly indicated the fact that there was no manufacturing defect in the vehicle, as alleged.

What was more, as continued, the manufacturing defect in the vehicle could not be established as the expert report for establishing such defect was conspicuously not considered by the Ld. District Forum. It did not even peruse the defect as it was under wrong impression that the testing was not conducted by the M V authorities because of non-production of the subject vehicle before them by the Appellant/OP No.1.

Appellant/OP No.1, while trying to establish the importance of the expert report to ascertain the manufacturing defect in the machine, referred to (1) the decision of the Revision Petition No. 1336of 2017 [Baljit Kaur—Vs. Divine Motors and Anr.] reported in 2017(3) CPR 224 (NC) wherein the Hon’ble National Commission was pleased to observe that an expert report, was of unique importance to establish that a machine was indeed suffering from some manufacturing defect and (2) the decision of the Hon’ble National Commission in Revision Petition No.1071 of 2016 [ Manager Jaika automobiles Pvt. Ltd.—Vs—Leela Sahu and Anr.] reported in 2017(2)CPR524(NC) wherein it was observed that the dealer of goods should not be held liable for manufacturing defect.

With the above submission, the Ld. Advocate prayed for the Appeal to be allowed setting aside the impugned judgment and Order.

Ld. Advocate appearing on behalf of the Respondent No. 2/OP No. 3, the Appellant/OP No. 3 in the Appeal Case No. 1048/2017, submitted in the same line of the Appellant/OP No. 1. His submission was mainly on the points narrated hereunder.

         1) The Respondent/Complainant alleged that the vehicle was defective without specifying the type of defect it had developed or it was showing.

           2)   The report submitted by the M V authorities was not considered by the Ld. District Forum while passing the evidently perverse order without application of mind and on mere surmise and conjecture.

Since no case for the replacement of vehicle or refund of the paid consideration was made out in the complaint, the impugned Judgment and Order, as the Ld. Advocate concluded, was needed to be set aside.

We have perused the papers on record and considered submissions of the Ld. Advocates on behalf of the participating sides.

It appeared that the Ld. District Forum had complied with the order passed by the Commission in the Execution Case preferred by the OPs by sending the subject vehicle to the PVD, Govt. of West Bengal for testing. It also appeared from the running page 40, 41, and 42 that the said vehicle was examined by the concerned officer deployed for the purpose by the M V authority and a report to that effect was submitted by him. The impugned order should have been passed taking into consideration the said report. The impugned order was speaking about non-furnishing of any testing report as, what was alleged, the subject vehicle was not produced before the inspecting M V authorities by the Appellant/OP No. 1 on this point. The facts narrated in the impugned order and the papers made available in the record appeared to be absolutely contradictory to each other. The M V testing report at running pages 40, 41 and 42 appeared to have skipped astonishingly the notice of the Ld. District Forum.

The Bench, in the given circumstance, was not in a position to accept the impugned order which was glaringly passed without taking into consideration the technical report that this Bench itself had pressed for to obtain and rely upon as far as practicable while arriving at the final decision despite the fact that the report was available with the record.

The Bench, after giving a thoughtful consideration, was of the view that the case was fit to be remanded once again for further hearing of the same especially on the report of the M V authorities and delivering the reasoned order. It was also of the view that the case, since was already adequately delayed, a strict deadline should be fixed to dispose of the same.

Hence,

Ordered

that the Appeal be and the same stands allowed in part. The case be remanded to the Ld. District Forum with the direction to all the sides to report to the Ld. District Forum on 18.12.2019. The Ld. District forum is also directed to complete the hearing and to deliver verdict within 60 days from the date of reporting mentioned above.

Instant order shall govern the Appeal No. A/1048/2017 also. Both the Appeals A/721/2017 and A/1048/2017 stand disposed of accordingly.   

Let a copy of this order be placed with the case record of A/1048/2017.