MAHEENDRA INDUSTRIES vs C.L. SALIM

THIS appeal is directed against the order passed by the District Forum, Kozhikode, in O.P. No. 573/96. 2nd opposite party is the appellant.

SHORTLY stated, the allegations in the complaint are as follows: The complainant purchased a jet pump from the first opposite party, who is the dealer which was manufactured by the 2nd opposite party, and the pump suffers from manufacturing defect resulting in huge sound while working causing lot of disturbance to the neighbors. Defect could not be set right despite frequent repairs by the dealer. In the circumstances the complainant sought a direction to refund the price. The second opposite party appeared but did not file any version.

The first opposite party filed version stating that the pump does not suffer from any manufacturing defect and they have already set right the defect and still they are prepared to set right the defects, if any. Unfortunately the District Forum did not take any oral evidence and it does not appear that even an affidavit is taken from the complainant. No expert commissioner was also appointed to find out whether there is any manufacturing defect, and the District Forum merely proceeded on the ground that the defects were repaired by the dealer but he did not succeed to set right the defects and draw the inference that the set suffered from manufacturing defect. Even then, normally an order should have been passed to replace it by another defectfree set. The Court also has not considered whether replacement is sufficient and whether an order for refund and cost is necessary.

LEARNED Counsel for the respondent submitted that the second opposite party the manufacturer has not filed any version before the District Forum and the first opposite party who filed version did not choose to file appeal and in the circumstances this appeal is not maintainable. The LEARNED Counsel also relied on the decision of the National Commission in Pramod Kumar Bothra v. Ishwar Chand Shanna, I (1996) CPJ 149 (NC). The dictum relied on by the Counsel is the following: "If no version has been filed before the State Commission then no amount of evidence or material can be looked upon a plea not put forward." However in this case no evidence at all so as to support the decision of the District Forum is adduced. As indicated above no oral evidence was taken by the District Forum. Of course it is admitted by the first opposite party that the complainant approached for effecting some repairs and they have set right the defects. There is no admission whatsoever that there is manufacturing defect. In the circumstances the District Forum was wrong in entering a finding that there is manufacturing defect without any material except the averments in the complaint in support of that. The circumstance that the 2nd opposite party did not file any version before the District Forum cannot be the reason for rejecting the appeal against an order which is not supported by any material. It has been repeatedly stated that the pleading in the complaint cannot be a substitute for evidence. In the circumstances we feel that the matter requires to be re-examined. However, the second opposite party has not filed any version and therefore this can be allowed only on terms. We therefore allow the appeal, set aside the order of the District Forum and remit back the matter to the District Forum for fresh disposal on condition that the appellant will pay Rs. 1,000/- towards costs of the complainant or deposit the amount before the District Forum for payment to the complainant within a period of one month from today. If the deposit is not made within the stipulated period the appeal will stand dismissed. The District Forum will allow the 2nd opposite party to file a version and also permit the parties to adduce fresh evidence if they are so advised. The Forum will also appoint an expert commissioner to examine pomp and file a report as to the condition of pump. The parties will appear before the District Forum on 1.10.1997. Appeal allowed with cost.