No. 10/21.11.2008.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

This appeal was filed challenging the order dated 07.04.2008 passed by Calcutta Unit – II in Consumer Complaint No. 483 of 2007 whereby the complaint was dismissed.  Mr. Mishra, the Ld. Advocate representing the Appellant states that complaint was filed on allegation that the Complainant – Company purchased a Honda Civic MT motor car manufactured by O.P. No. 1 and sold by O.P. No. 2, the authorized dealer of O.P. No. 1, at a cost of Rs. 10.92 lakhs for the purpose of use of its Directors and when the car started giving certain troubles and bad odours started emanating the Complainant brought this to the notice of O.P. No. 2 and though the defects were said to be removed the car continued to emit foul smell the complaint ultimately filed for appropriate relief.

The Ld. Advocate for the Appellant contended that in the pleading only expression used is that the car was being searched for the purpose of use of its Directors.  In the proceeding admittedly evidence has not been yet adduced by either of the parties.  The impugned order also shows that in view of the finding that the car was being used for commercial purposes, the Complainant was held not a consumer and, therefore, the complaint is not maintainable.  Miss Ishita Bose, the Ld. Advocate for the Respondent relied on paragraph 4 of the complaint in supporting the impugned judgement and it is contended by her that as there is no material in the pleading showing the actual user of the car by the Directors, the findings by the Trial Forum should not be interfered with.

Considering the respective contentions we find that even in the pleadings the actual user of the car has not been clarified.  The impugned order also proceeded on that basis.  In the circumstances we are of the opinion that the Complainant should have been given an opportunity to complete his evidence with further opportunity to the Respondent to prove their case and on totality of the materials the matter should have been decided as the complaint itself does not indicate clearly the user of the vehicle.  In above of the findings the impugned order is set aside.  the appeal is allowed.  The Trial Forum is directed to proceed with the matter in accordance with law granting opportunity to the parties to adduce evidence and to decide the matter thereafter in accordance with law.  The copy of the order be also sent.