30.03.2016.

PER SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER.

         The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) is at the instance of O.P. No. 1 to impeach the judgment dated 30.10.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Burdwan (for short, the Ld. District Forum) in Consumer Complaint No. 44 of 2010.

         The Respondent Nos. 1 & 2 herein being the Complainants initiated the consumer complaint under Section 12 of the Act before the Ld. District Forum alleging that being agriculturalist and being convinced by one Sukumar Pal, known to be Sales Manager of the O.P. No. 1/Appellant approached to O.P. No. 4 for purchasing a mechanical harvesting system and as per suggestion of O.P. NO. 1 dated 19.09.2009, O.P. No. 4 sanctioning letter accompanied with D.O. on 22.09.2009 and after several reminders O.P. NO. 1 gave delivery of the assembled tractor-cum-harvester to the Complainant on 17.112009 from the compound of O.P. No. 4 and payment of 75% of the loan amount of Rs.9,67,988/- was released on 27.11.2009.  However, immediately after obtaining the said tractor-cum-harvester, it was found defective.  On 26.11.2009 O.P. No. 1 through their staff has made repairing job but after sometime again it was again found defective.  Therefore, consumer complaint has been filed with a direction upon O.P. Nos. 1 to 3 to replace the tractor-cum-harvester with brand-new one, in the alternative to refund the consideration money with interest, to pay compensation of Rs.2,00,000/- and litigation cost etc.

         The O.P. No. 1 by filing the written version disputed the claim stating, inter alia, that there was no mechanical defect in the machine and the entire set up was completely free from any kind of manufacturing defect.  The O.P. No. 1 stated that the Complainants have used the same machine and still using it.  There are reports that Complainants’ employed persons have mishandled the machine negligently and recklessly operated the combined harvester and as such if any defect at all occurs it is due to mishandling by the Complainants without taking due care and caution.

         After assessing the materials on record, the Ld. District Forum has observed that the Complainants have failed to prove that the vehicle is suffering from any manufacturing defect and further it has been observed that the Complainants has not even applied for any expert opinion to ascertain whether the vehicle in question was suffering from any manufacturing defect.  However, in spite of the said observation, the Ld. District Forum has passed some directions upon the O.P. Nos. 1 to 3 which prompted the O.P. No. 1 to prefer this appeal.

         We have scrutinized materials on record and considered the submission advanced by the Ld. Advocates appearing for the Appellant and for the Respondent Nos. 1 & 2 for whom a BNA has been filed as well as the Ld. Advocate for the Respondent No. 4.

         Having heard the Ld. Advocates for the respective parties and on going through the materials on record, it has come to surface that the Respondent No. 1 has purchased the tractor-cum-harvester in question.  Thereafter, it has been alleged by them that it started malfunction.  It is true once the said tractor was repaired.  However, when a prayer has been made on behalf of the Respondent Nos. 1 & 2/Complainants with a prayer for relief for replacement of the existing set by a new one, certainly the liability lies upon them to prove that the said machine had been suffering from inherent manufacturing defect.  The impugned order clearly postulate that the Complainants has not even applied for any opinion of expert to ascertain whether the tractor in question had any defect.   The Ld. District Forum has categorically observed that it is not proved that the tractor-cum-harvester had been suffering from any manufacturing defect which could not be rectified. 

         After such observation, the Ld. District Forum should have dismissed the complaint.  In the ordering portion the Ld. District Forum did not mention whether the said consumer complaint was allowed or dismissed but certain directions upon the O.P. Nos. 1 & 3 were given to make repairing the vehicle in question and to make arrangement for registration of the vehicle and subsequent jobs.

         In our opinion, the Ld. District Forum has exceeded its jurisdiction because whether a machine is defective or not can only be examined through an expert.  When such report is not forthcoming and the Complainants did not take any pain to prove their own allegations, the complaint should have dismissed outrightly.

         Therefore, considering the materials on record and having heard the Ld. Advocate for the parties, we are constrained to interfere with the order impugned.  In other words, the order being devoid of any substance, requires to be set aside.

         Consequently, the appeal is allowed on contest.  However, considering the facts and circumstances, we do not make any order as to cost in this appeal.  The judgment dated 30.10.2013 passed by the Ld. District Forum in consumer complaint No. 44/2010 is hereby set aside.

         Resultantly, the consumer complaint being No. 44/2010 stands dismissed.

        Let a copy of this order be forwarded to the Ld. District Forum, Burdwan for information.