Per – Hon’ble Mr. P. N. Kashalkar, Presiding Judicial Member
Adv. Rashmi Manne is present on behalf of the Appellant/ original Opponent No.1. Adv. Virendra Neve is present on behalf of the Respondent No.1/original Complainant. He files his ‘Vakalatnama’. It is taken on the record. He also files an application seeking time to file reply. Said application is rejected. Adv. S. R. Tambat is present on behalf of the Respondent No.2/ original Opponent No.2.
[2] Heard.
[3] This appeal has been filed by the original Opponent No.1, who is the manufacturer of plastic pipes against whom an order dated 20/1/2011 was passed by the District Consumer Disputes Redressal Forum, Nasik in Consumer Complaint No.152 of 2010, to refund to the original Complainant/Respondent No.1 an amount of `1,28,037/- together with interest thereon @ 9% p.a. He was also directed to pay compensation in sum of `10,000/- towards mental harassment and `1,000/- towards costs. As such, this appeal has been preferred by the manufacturer of the pipes, taking a strong exception to the order passed by the District Consumer Disputes Redressal Forum, Nasik.
[4] Facts to the extent material, may be stated as under:-
The Appellant/original Opponent No.1 is the manufacturer of plastic pipes. Those pipes were purchased by the Respondent No.1/original Complainant, namely – Mr. Vasantrao Madhavrao Pawar, resident of Village Kasbe Wani, Taluka – Dindori, District – Nasik, on 15/3/2008 and 27/3/2008. According to the Respondent No.1/original Complainant, said pipes while being laid in the field and while being connected with each other got broken and he could not use the said pipes for watering his field. He had alleged that the pipes were of sub-standard quality and the pipes were required to be taken out from where they were laid down. Intimation was given to the Appellant/original Opponent No.1 but, the Appellant/original Opponent No.1 did not take any action. The pipes were sent by the Respondent No.1/original Complainant to the Bureau of Indian Standards, having its office at Andheri, Mumbai. Bureau of Indian Standards tested the pipes, as alleged by the Respondent No.1/original Complainant but, he was told by the said authority that it would forward the report of testing only to the Court/Forum if, a request to that effect is received from such Court/Forum but, it would not give testing report to private parties. However, by another letter, which is on the record, it informed the Respondent No.1/original Complainant that the manufacturer – the Appellant/original Opponent No.1 was ready to replace the pipes. Accordingly, the Appellant/original Opponent No.1 had also written a letter to the Respondent No.1/original Complainant asking him to bring back those pipes for replacement. But this was not done by the Respondent No.1/original Complainant and he straightway filed a consumer complaint alleging supply of defective pipes by the manufacturer – the Appellant/original Opponent No.1 and by M/s. Parekh Motors – the Respondent No.2/ original Opponent No.2, who is the dealer of said pipes.
[5] In defence, it was the case of the Appellant/original Opponent No.1 in the District Forum that it was ready to replace the pipes but the Respondent No.1/original Complainant had not brought those pipes for replacement. Secondly, a contention was raised by the Appellant/original Opponent No.1 to the effect that the Respondent No.1/original Complainant had not paid full amount of consideration for purchase of pipes. It is contended that the Respondent No.1/original Complainant paid only an amount of `1,00,000/- and the balance consideration amount was not at all paid by the Respondent No.1/original Complainant. The District Forum, on considering the affidavits and documents placed on the record, held that the Respondent No.1/original Complainant had proved that by supplying defective pipes the Appellant/original Opponent No.1 was guilty of deficiency in service and unfair trade practice, and therefore, the District Forum allowed the complaint against both the Opponents and directed them to refund the full amount of consideration of the pipe to the Respondent No.1/ original Complainant and besides the District Forum also awarded compensation of `10,000/- towards mental harassment and `1,000/- towards costs and as such, the manufacturer, who is the original Opponent No.1 has filed this appeal.
[6] We are finding that the order passed by the District Consumer Disputes Redressal Forum, Nasik is per-se bad in law and cannot be allowed to be sustained in law inasmuch as there was no proof on the record by the Respondent No.1/original Complainant to establish the fact that said pipes were defective in any manner. Under Section-13(1)(c) of the Consumer Protection Act, 1986 where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the Complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory alongwith a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum.
[7] It is this provision, which was not followed by the District Forum when this was the complaint filed by the Respondent No.1/ original Complainant alleging supply of defective pipes by the Appellant/original Opponent No.1. So, there was a major lacuna in the procedure ignored by the District Forum as contained in Section-13(1)(c) of the Consumer Protection Act, 1986. Overlooking this important mandate of law, without any basis and without any proof about the defective pipes supplied by the Appellant/original Opponent No.1, the District Forum jumped upon a conclusion that the pipes were defective and directed to refund to the Respondent No.1/original Complainant, the amount of consideration agreed to between the parties. Even in their zeal and haste in passing this award, the District Forum has lost sight of the fact that the Respondent No.1/original Complainant had not paid the entire agreed consideration to the original Opponents but, he had simply made advance payment of `1,00,000/- and was yet to pay balance amount of consideration of the pipes to the original Opponents. So, in any view of the matter, the order passed by the District Forum in favour of the Respondent No.1/original Complainant is appearing to be bad in law and cannot be allowed to sustain in law. In these circumstances, to give a reasonable opportunity to the Respondent No.1/original Complainant to prove that the pipes supplied by the Appellant/original Opponent No.1 were defective, we are required to allow this appeal and remit the consumer complaint back to the District Forum for permitting the Respondent No.1/original Complainant to adduce such other evidence as may be necessary to prove that the pipes supplied by the Appellant/original Opponent No.1 were defective and for this purpose, we are inclined to allow this appeal. Moreover, we also note that the defective pipes have already been sent to the Bureau of Indian Standards, Andheri, Mumbai and we have been told by the Learned Counsel for the Respondent No.1/original Complainant that the said authority is ready to give its test report to the Court/Forum, if so asked by the Court/Forum, but the test report cannot be supplied to private parties. If, this is so, the District Forum is required to be directed to call for such report from the Bureau of Indian Standard, Mumbai by sending requisition to that effect after remand of this case.
With this, we proceed to pass the following order:-
ORDER
Appeal No.318 of 2011 is hereby allowed.
Impugned order dated 20/Jan/2011 passed by the District Consumer Disputes Redressal Forum, Nasik in Consumer Complaint No.152 of 2010 is hereby quashed & set aside. Consequently, Consumer Complaint No.152 of 2010 is remitted back to the District Forum
District Forum is directed to decide the consumer complaint afresh after procuring report about the pipes from the Bureau of Indian Standards, Mumbai by sending quotation No.SI. No.1688 and after offering reasonable opportunity to the parties to present their case.
The District Forum shall also re-examine the point of limitation that was tried to be raised before us in the course of arguments.
Amount deposited by the Appellant/original Opponent No.1 under Section-15 of the Consumer Protection Act, 1986 at the time of filing of the present appeal shall be refunded to the Appellant.
No order as to costs.
On receipt of this order the District Forum shall issue notices to all the parties for appearance before it in the complaint.
Pronounced & dictated on 9th September, 2011
