Dinesh Sharma vs B.P.L. LTD.

THESE appeal and cross appeal have arisen from order dated 9.4.1996 passed by District Consumer Disputes Redressal Forum, Guna (hereafter referred to as District Forum), in Complaint Case No. 113/1996, and hence are being disposed of by a common order.

THE facts of the case, leading to these appeals, can be briefly stated as follows: Shri Dinesh Sharma (appellant in Appeal No. 412/1996 and respondent in Appeal No. 424/1996), who will be referred hereafter as complainant, in his complaint before the District Forum stated that he purchased a photocopier machine for Rs. 99,900/- from BPL Ltd. (respondent in Appeal No. 412/1996 and appellant in Appeal No. 424/1996), who will be referred to as opposite party. This machine was installed in Guna by opposite party on 23.1.1995. Complainant alleged that installation itself was done quite late by the opposite party. Complainant further alleged that the photocopier machine had manufacturing defect and therefore, did not give satisfactory service from the beginning. It had to be repaired, repeatedly and parts were also replaced from time to time. After expiry of warranty period, the complainant entered into a service contract with the opposite party and paid Rs. 6,000/- for this contract. Even then the machine was not repaired in time and did not give satisfactory service. Complainant gave a notice to opposite party on 4.8.1995 to return the amount of Rs. 99,900/- with, 24% interest and Rs. 25,000/- as damages and refund of Rs. 6,000/- paid for maintenance. Opposite party did not give any reply. THErefore, complainant filed a complaint in District Forum, Guna and prayed for above relief on 30.8.1995. In reply to this complaint, the opposite party denied the allegations vehemently. They stated that installation of machine was done as promised by them and the delay was due to the fact that the complainant himself cancelled his earlier order placed on 3.10.1994 and opposite party returned his earlier deposit of Rs. 25,000/- on 10.11.1994. A fresh order was placed thereafter and the installation was done on 23.1.1995. Opposite party also filed copy of the documents demonstrating the service rendered by them date-wise and job-wise and affirmed that complainant was satisfied every time. They further averred that complainant had been given written instructions about the care to be taken while running the machine. Opposite party felt that voltage fluctuation and dust were the main causes of the break down in machine and consequent need for repairs. Details of the service done were given in para 6 of their reply. Opposite party denied that there were any manufacturing defects. They denied the allegations of the complainant that they deliberately tried to hide the fact that they had closed down manufacture of copying machine. They averred that the closing down was for commercial reason. They averred that their Company was a reputed Company in electronic goods and were up-to-date with necessary R & D. They finally submitted that there was no deficiency in service nor was there any manufacturing defect and hence the complaint be dismissed.

The District Forum after considering the affidavits filed by both parties held that there was manufacturing defect in the photocopier machine and that is why it required repairs and replacement of parts so often and continuously. District Forum also held that opposite party failed to prove that complainant did not run the machine properly and that was the sole reason for repeated repairs. District Forum also observed that opposite party did not mention in the affidavit that the reason for closing down the manufacture of photocopier machine was purely commercial. District Forum, therefore, ordered the opposite party to pay Rs. 96,611/- to complainant within two months. Opposite party was also ordered to pay Rs. 500/- as costs vide their impugned order.

APPEAL No. 412/1996 was filed by complainant as he was dissatisfied with the relief given to him by the District Forum. His grievance was that District Forum after holding that the photocopier machine had manufacturing defect, ordered only payment of Rs. 96,611/- but did not allow compensation for mental agony. Opposite party also filed Appeal No. 424/1996 in which they challenged the order of the District Forum on the ground that the order of District Forum was not based on any evidence on record. Appeal No. 424/1996:

WE have heard both the parties in Appeal Nos. 412/1996 and 424/1996. WE have also perused the record of the case. In this case both the parties had submitted their own affidavits, but none had produced any independent witness or expert witness. WE have taken a consistent view in all the cases involving technical defects in a machine that complainant has to prove the technical defect on the basis of a testimony of a technical expert. Without such testimony, Consumer Fora cannot decide this point suo moto unless the evidence on record is so damaging that such a defect would be obvious to even a lay man. In Original Case No. 85/94 Rajendra Goyal v. Premier Automobiles, decided by us, we had taken a similar view that manufacturing defect was not established by testimony of a mechanical expert. WE had relied on decision of National Commission in the case M/s. Tata Engineering & Locomotive Co. Ltd. v. M. Moosa, reported in (1994) 3 CPR 395. In the instant case, as already pointed out there is no evidence of an expert witness to show that the machine in question suffered with any manufacturing defect. Under the circumstances, it appears just and proper to remand the case back to the District Forum to enable the parties to lead further evidence including that of an expert to show whether or not the machine suffered with any manufacturing defect. In the result while we dismiss the Appeal No. 412/1996 filed by the complainant, allow the Appeal No. 424/1996 filed by B.P.L. Ltd. & Anr. and set aside the impugned order. The case shall now go back to the District Forum, Guna for allowing the parties to lead further evidence as aforesaid and for decision afresh in conformity with law. There shall be however, no order as to costs of these appeals. Since the matter is pretty old, the District Forum is expected to decide the case within three months from the date of receipt of copy of this order. Appeal No. 412/96 dismissed and Appeal No. 424/96 allowed.