29.11.2017

MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.

          Instant Appeal under Section 15 of the Consumer Protection Act, 1986 has been filed by the Appellants/O.P. Nos. 2 & 3 challenging the judgment and order No. 7 dated 30.04.2014 passed by the Ld. District Forum, Malda in DFC Case No. 5/14 allowing the complaint ex-parte against the o.P. Nos. 1, 2 and 3 with cost.  In the instant order, the Appellant/O.P. Company was directed to replace the old machine of the Respondent No. 1/Complainant by installing a new one of the same brand and category within 30 days from the date of receipt of the impugned order, failing which, as directed, the Respondent No. 1/Complainant would be at liberty to put the order into execution for getting back Rs.42,000/- being purchase money of the machine with interest @ 9% per annum from the date of purchase of the machine till realization of the amount. 

          In the instant order, the entitlement of the Respondent No. 1/Complainant to Rs.30,000/- as compensation for mental agony and harassment and Rs.2,000/- as cost of litigation were ascertained.

          The O.P. was also directed to deposit a sum of Rs.10,000/- to the Consumer Welfare Fund of the Government of West Bengal within the aforementioned period.

          The fact of the case was that the Respondent No. 1/Complainant had purchased one AC Machine manufactured by the Appellant/O.P. Company from the local service centre being Respondent No. 2/O.P. No. 1.  The machine did not function properly and had undergone repairing for two times including replacement of compressor within a span of 4 months since the date of its purchase.  The proposal of Respondent No. 1/Complainant for replacement of the machine was not heeded to by the Appellants/O.Ps Company.  Therefore, the aggrieved Respondent No. 1/Complainant filed the complaint case which the impugned judgment and order relates to. 

          Heard the Ld. Advocate appearing on behalf of the Appellants/O.Ps Company who submitted that a complaint case under D.F. Case No. 68/2013 on the same issue was filed before the Ld. District Forum and the said case, after all steps being properly undergone, was heard on maintainability of the complaint on 06.01.2014 and, as continued, was dismissed as withdrawn. 

          As further submitted, the earlier complaint was filed by younger brother of the purchaser and not by the purchaser herself.  Instant complaint was filed by the Respondent No. 1/Complainant being the purchaser on the same issue after the earlier case was withdrawn and complaint was adjudicated ex parte against the Appellants/O.Ps, who, as contended, were ignorant of the filing of the instant complaint case by the Respondent No. 1/Complainant.

          The Ld. Advocate for the Appellants/O.Ps went on to submit that the Respondent No. 1/Complainant’s approaching the manufacturer for replacement of the AC Machine would have justification had there been any proven manufacturing defect in the machine.  Incidentally, he cited a decision of the Hon’ble Apex Court in SLP No. 21178-21180 of 2009 [C.N. Anantharam – vs. M/s. Fiat India Limited & Ors etc. etc.] wherein, while observing the decision of the Hon’ble National Commission of not accepting the Complainant’s several attempts to prove that there were manufacturing defects in the subject vehicle unless the said claim is corroborated and certified by an independent expert as reasonable, directed in addition that refund of the price of the vehicle with lifetime tax and EMI along with interest as ordered by the State Commission should be allowed only if an independent technical expert was of the opinion that there was inherent manufacturing defect in the said vehicle. 

          Incidentally, as continued, the AC’s sustaining the manufacturing defect was never established by any independent technical expert. 

          The Ld. Advocate continued that the Appellants/O.Ps did not get any opportunity to defend their case as the case was heard ex-parte.  As continued, the Ld. District Forum committed material irregularity by passing the instant arbitrary order without hearing the case on merit and the impugned order should be set aside. 

          The Appeal was heard ex-parte against the Respondent No. 1/Complainant in terms of the order dated 24.08.2017. 

          Perused the papers on record.  The instant complaint appeared to have been filed on an issue on which a complaint was filed earlier and the said complaint, due to some technical defect was withdrawn and was accordingly dismissed at a time when the case proceeded considerably and was almost matured for final hearing.

          The instant complaint was filed on the same issue removing the aforesaid technical defect and whatever may be the reason was heard ex parte and disposed of without the Appellants/O.Ps being heard.

          As we always feel it wise to provide with the contesting parties adequate opportunity of being heard, we are inclined to send the complaint on remand with the direction upon the Ld. District Forum to adjudicate the case afresh after giving the Appellants/O.Ps due opportunities of being heard. 

          Hence, ordered, that the appeal be and the same is allowed ex-parte against the Respondent No. 1/Complainant in part.  The case be remanded to the Ld. District Forum for hearing the complaint afresh after giving the Appellants/O.Ps the opportunities of being heard and dispose of the case by passing a reasoned order within a period from six weeks hence.  The impugned judgment and order stands set aside. 

          Both the parties are directed to appear before the Ld. District Forum on 22.12.2017.