DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

North 24 Pgs., BARASAT

C.C. No./99/2020

PRESENT                            :- Shri Daman Prosad Biswas……..President.

:- Shri Abhijit Basu…………Member.

Order No.:22

Dated:- 28.12.2023

Today is fixed for final order. Complainant in person is present. Ld. Advocate for the O.P No. 1 is present.

Record is put up for order in respect of M.A. case no. 81/2023. Perused the petition dated 17/11/2022 filed by the Complainant which has registered as M.A. case No. 81/2023.

Complainant stated in the petition that instant case is related to manufacturing defects of the product no. 1 and 2 whereby such defects are purely technical in nature which otherwise can be determined by a proper technical report for the sake of clarity and justice. He prayed for appointment of a technical expert for the purpose of survey commission at the house of Complainant and to pass any other order as the Hon’ble Commission deems fit and proper. During hearing Ld. Advocate for the O.P argued that this Court has no jurisdiction to allow any petition for survey commission.

Perused the decision filed by the Complainant.

We find that Hon’ble Kerala High Court at Ernakulam dated 28/09/2021, WP (c) No. 18091/2021, P & N Ceramics and Others Vs. Issac Sebastian held:-

“Needless to say in so far as the Commission is conferred in terms of the provisions of the Act with the powers to adjudicate complaints and in so far as power is conferred on it to pass any order during the pendency of the proceedings as is just proper in the facts and circumstances of the case. It should necessarily have all the incidental powers for adjudication of consumer disputes, for otherwise, the act would not secure its objective, especially when no one can dispute that complaints in the nature of one on hand cannot be resolved effectively based on the oral and documentary evidence alone. Even otherwise, it is now trite that a forum constituted to adjudicate a dispute is presumed to have the necessary powers to do so and it can exercise all such powers except the powers, the exercise of which are expressly prohibited in terms of the provisions of the Act (See N.K. Dharmadas Vs. State Transport Appellate Tribunal of Kerala, and Others, AIR 1963 Kerala 73 and Deputy Conservator of Forests, Nemmara V. K.S. Sarojini, AIR 1981 Kerala 44).”

            Hon’ble High Court further held that:-

                        “That part even in Yogendra Builders, the court observed that having regard to the object of statute, there will be cases where noting down of the physical features may be very essential and the interpretation given to the provision in the said case will not preclude the forums in calling for report from experts, specialists, skilled persons or any other persons for the purpose of taking an appropriate decision in the matter.”

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C.C. No./99/2020

We have also carefully gone through another decision of National Commission reported in (2007) CPJ 2 NC (Chandeshwar Kumar Vs. Tata Engineering Locomotive Co.) dated 01/12/2006. We find that National Commission held:-

                        “Firstly, there is no expert opinion on record as to whether the vehicle has any manufacturing defect. In fact State Commission has gone on two record that the petty repairs carried out by Complainant by paying negligible amounts on filters, gear lever, radiator, engine oil, steering, etc. worth of Rs. 5 and other. Another expenditure amounting to Rs. 40 which in any case shall not help the complaint to prove the case / allegation of the vehicle having any manufacturing defect. No additional material or evidence has been brought before us to prove this allegation, of the vehicle having any manufacturing defect, in the absence of which, like State Commission, we are of the view that the appellant / Complainant has failed to prove his case and the appeal as well as complaint has no legs to stand on its own.”

            Considering the facts and circumstances of this case, materials on record and principles of law enunciated in the aforesaid two decisions, we think that for proper adjudication of the present dispute appointment of technical expert is very much essential and said technical expert who shall visit the house of the Complainant for examination of the article on dispute and Complainant shall liable to pay the entire cost for the said examination.

            That the M.A. case no. 81/2023 is thus disposed of.

            To 19/01/2024 for order in respect of name of expert who will examine the aforesaid product at the house of the Complainant. 

Member                                                      President