No. 5/31.12.2009.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

Appellant through Mr. T. J. Banerjee, the Ld. Advocate and Respondent through Mr. Souri Ghoshal, the Ld. Advocate are present.  This appeal was filed against the order dated 31.07.2009 passed by D.C.D.R.F., North 24 Pgs. in CC Case No. 50/2008 whereby complaint was allowed granting part relief to the Complainant.

The facts in brief in the complaint as stated by the Complainant are that the Complainant, a businessman, obtained loan from O.P. No. 1 for purchase of two vehicles and after due satisfaction of requirement the loan of Rs. 7,31,300/- was sanctioned for purchase of vehicle being No. WB-25B-4409 and Rs. 5,86,900/- for vehicle being No. WB-25B-4429.  The Complainant got the said vehicle delivered from O.P. No. 2 and, thereafter made body of vehicles and fixed fitting and fixture from outside as per requirement by incurring expenses.  Soon after plying the vehicles on loan several defects were shown such as shortage of mileage, electrical defects, sap, tyres and other mechanical defects and Complainant was facing problem the vehicle had to be repaired on number of occasions because of the defects and one such O.P. No. 1 took possession of one of the vehicles being No. WB-25B-4409 on the allegation of default in payment of installment.  The complaint was filed by the Complainant asking O.P. No. 2 to replace the vehicles, O.P., No. 1 to return the vehicle taken away by O.P. No. 1 and compensation and cost.

Mr. Banerjee, the Ld. Advocate for the Appellant contended that the vehicles from the beginning showed mechanical defects and repeatedly the vehicles had to be got repaired and in support of such contention reliance was placed on the various documents enclosed to the memorandum of appeal.  According to Mr. Banerjee the said documents show conclusively that the vehicle had to be repaired repeatedly and, therefore, it is proved conclusively that the vehicle had a manufacturing defect which require replacement and repeated repairings do not solve the problem. 

Heard Mr. Ghoshal, the Ld. Advocate for the Respondent who opposed the said prayer.

While considering the matter on merit we requested the Ld. Advocate for the Appellant to show any pleading as to the existence of any manufacturing defect of the vehicles in question.  We also requested Mr. Banerjee to show evidence in support of such pleading of mechanical defects and expert’s evidence for us to conclude in respect of existence of manufacturing defect which require reasonably to pass an order for replacement of the vehicle.  Mr. Banerjee placed some parts of the pleadings contained in paragraph 7 of the complaint but we find that though mechanical defects and repairing of the vehicles have been pleaded, no case of manufacturing defect has been pleaded and shown to us.  Admittedly no evidence was adduced orally by the Complainant or the O.P.  But voluminous documents have been produced as evidence and Mr. Banerjee relies on them in support of his claim for an order directing the replacement of the vehicles by the manufacturer.  We find that neither there is any pleading nor there is any evidence, far less an expert opinion showing existence of any manufacturing defect or any material from which a conclusion can be reached on manufacturing defect of the vehicle.

Mr. Banerjee relied on paragraph 4 of the judgement in the case of Hyundai Motors India Ltd. – vs. – Affiliated East West Press (P) Ltd. reported in I (2008) CPJ 19 (NC) in support of his contention that repeated repairing lead to conclusion that there is such manufacturing defect in the vehicle which entitles the Complainant to get a replacement of the vehicle by a new one in place of the old vehicle.  But paragraph 4 of the said judgement relied on by Mr. Banerjee only quotes an interim order passed by the Hon’ble National Commission.  On perusal of the said judgement it appears fact was noted that the car was referred for manufacturing defect and considering the fact District Forum itself directed replacement and no objection was raised therein as regards not making out a case of manufacturing defect.  As the said judgement does not decide the said aspect we are unable to follow the same in accepting the contention of the Ld. Advocate for the Appellant that there is sufficient case made out in the present proceeding where direction for replacement of the vehicle can be given.  In the absence of any pleading as regards manufacturing defects and in absence of any evidence and of expert opinion, we are unable to accept the contention of the Appellant and accordingly the appeal fails and is hereby dismissed.  Judgement of the Forum below is affirmed.