Full Judgment
S.C. VYAS, PRESIDENT
This order will govern disposal of Appeal No.533/2011 as well as Appeal No.540/2011, which have been preferred respectively by the complainant and O.P.No.2 of Complaint Case No.59/2011 decided by District Consumer Disputes Redressal Forum, Raipur (C.G.) (hereinafter called .District Forum. for short) vide order dated 30.08.2011, directing the O.P.No.2 to return the vehicle in question after removal of the rusts and after fresh denting and painting and to pay the complainant a sum of Rs.5,000/- as compensation for mental agony and Rs.700/- as cost of litigation. For the purpose of convenience, the parties will be referred in this order in their capacity, as they were enjoying before the District Forum. Original of this order be retained in record of Appeal No.533/2011 and a copy thereof be placed in the record of Appeal No.540/2011.
2. The grievance of the complainant before the District Forum, was that a motorcycle, which was sold by the OPs to him was not new one and was an old one, which was provided to him after denting and painting and when he started using that motorcycle, then this fact came to his knowledge, when he observed that there was rusting in the vehicle here and there, though it was a new motorcycle. Then he prayed OPs for replacement of the vehicle, but his request was denied by the OPs and so he filed a consumer complaint before the District Forum, alleging manufacturing defects in the sold vehicle and seeking directions to OPs to refund cost of the motorcycle along with amount spent in registration of vehicle as well as on its insurance and also some compensation for mental agony etc.
3. The complaint was resisted by the OPs, on the ground that the vehicle in question, was neither having any manufacturing defects nor it was old one. So far as problem of rusting at some places in the vehicle, is concerned, it can be happened when some parts of the vehicle, come in contact of some chemical, so merely on account of rusting in the vehicle at some places, it cannot be said that the vehicle was having manufacturing defects. It has been averred that complainant was interested only in getting new vehicle by hook or crook and so, he filed a false consumer complaint before the District Forum.
4. Learned District Forum, after having considered material placed before it by all parties, ultimately by the impugned order directed the O.P.No.2 to return the vehicle after removal of the rusts and after fresh denting and painting and to pay the complainant a sum of Rs.5,000/- as compensation for mental agony and Rs.700/- as cost of litigation.
5. This order has been challenged by the complainant as well as O.P.No.1 before us. The grievance of the complainant is that District Forum, has not taken into consideration all grievances of the complainant, whereas the grievance of the O.P.No.2 in a separate appeal, is that there was no occasion of passing any direction against the manufacturer and supplier of the vehicle, as rusting in the vehicle at some places, was on account of improper maintenance of the vehicle and the vehicle was not having any manufacturing defects.
6. We have heard arguments of all parties and perused record of the District Forum.
7. Before District Forum, a C.D. was filed by the complainant, in support of the contention that the vehicle in question, was having manufacturing defects. Photographs of the vehicle showing rusted portions/defect has also been filed. Apart from it, affidavit of the complainant was also there. To counter these evidences, affidavit of Shri Sanjeev Chaubey, Senior Manager Legal of O.P. No.1 and Shri Vivek
Gupta, Manager of O.P.No.2 were filed. Some other material was also filed by the OPs.
8. But, we have taken note from the record of the District Forum that no party had tried to get the vehicle in question, examined by some expert to ascertain as to whether the vehicle is having some manufacturing defects or not and whether an old vehicle was provided by the OPs to the complainant in the name of a new vehicle, after its denting and painting. The requirement of provisions of Section 13(c) read with Section 13(4)(iv) of the Consumer Protection Act, 1986 is that as and when there is some allegation regarding defects in a product sold by any party, then to ascertain such defects, such article is required to be examined by some expert and for that purpose the District Forum, may send such article to an expert or expert could have been called. We find that in this case, neither this exercise was not by the District Forum nor any prayer was made by any of the parties and for want of expert opinion, the allegation regarding manufacturing defects in the vehicle in question, could neither be proved nor disproved before the District Forum. When the complainant was coming with an allegation that the vehicle in question, was suffering from some manufacturing defects, then it was required to be examined by some expert, may be on the order of the District Forum, at the cost of the complainant, but as this exercise has not been performed by the District Forum, so order recorded by the District Forum, is not sustainable.
9. Therefore, Appeal No.533/2011 preferred by the complainant as well as Appeal No.540/2011 preferred by O.P.No.2, both succeed and are allowed. The impugned order is set aside and the case is remanded back to the District Forum, with a direction to provide opportunity to the complainant as well as OPs to get the vehicle in question, examined by some expert on their cost and then to produce report of that expert to show as to whether the vehicle in question, was having any manufacturing defects or not and whether an old vehicle was provided by the OPs to the complainant in the name of a new vehicle. After completing this exercise, the matter be decided afresh by the District Forum. Parties are directed to appear before District Forum on 19.12.2011. No order as to cost of both these appeals.