RAMCO INDUSTRIES LTD Vs. T M GEORGE

JUDGEMENT

(1.) Opposite parties 1 to 3 in O. P. No.175/% on the file of the Consumer Disputes Redressal Forum, Pathanamthitta are the appellants. Complainant alleged before the District Forum that he purchased A. C. sheets for the roofing of the auditorium.

(2.) The A. C. sheets since were defective she moved the District Forum in O. P, No.207/95. The matter was settled between the parties and as a result of the compromise the opposite parties laid fresh AC sheets on the roof of the auditorium. But the said sheets so laid also were defective as there was dripping of water. Thus he alleged the sheets have manufacturing defect and, therefore, wanted relief. The first opposite party filed version on behalf of other opposite parties also. He denied the allegation with complaint and maintained that there is no manufacturing defect in the AC sheets supplied by them, and if at all there was any dampness moisture or dripping from some of the sheets the same was the result of defect in the roofing of the auditorium. In short they wanted to maintain that the same was due to structural defect of the roof. Therefore, they wanted dismissal of the complaint. Before the District Forum complainant gave evidence as P. W.1. P. W.2 filed CI report and P. W.4 filed C2 and C3 reports. The complainant had also produced Exts. Al and A2, On behalf of the opposite party R. W.1 was examined and they procured Ext. PI. On a consideration of the said material the District Forum made a direction to the opposite parties to replace the AC sheets supplied by them with new free AC sheets without defect within one month of the receipt of the copy of the order failing which they are directed to refund the purchase price, compensation of Rs.5,000/- and costs were also awarded. It is the said direction that is under challenge in this appeal. The learned Counsel for' the appellant submitted that the District Forum went wrong in relying C1 and C2 and the evidence P. W.4 to make the impugned direction, as according to the learned Counsel neither the evidence of P. W.4 nor the evidence of P. W.6 along with CI, C2 and C3 would support the inference that the materials supplied by the opposite party was defective. It is pointed by the learned Counsel that himself and produced Ext. B1, ISI specification for the various tests were adopted having regard to the requirement of Sec.13 (1) of the Consumer Protection Act, the District Forum could not have made reliance on the Commission report to come to the conclusion that there was manufacturing defect. The learned Counsel made reliance on the decision of the Supreme Court in State of Himachal Pradesh V/s. Jai Lal and Ors., 1999 AIR(SC) 3318 in support of his argument that the expert evidence has to furnish the necessary scientific criteria for testing the accurancy of the conclusions so as to enable the Court to form its independent judgment by the application of the criteria to the facts proved by the evidence of the case. Unless the opinion is supported by reasons such opinion cannot be accepted. Learned Counsel in support of the said argument made pointed out that even in Ext. C1 P. W.6 did not give a definite opinion. When he was asked in the cross-exam, whether the humidity was due to manufacturing defect, he said that the cause of the dampness is not mentioned in his report. He agreed that he did not say the cause of the dampness. In Ext. C also all that he mentions is, on examination of the under side of the roofing sheets traces of the dampness was found to prevail almost all over the under surface, and the alleged dripping could not be ascertained. He even does not claim that he had made any tests but only on visual examination what he found is reported. The cause of the dampness he does not say neither could he say when he was examined as P. W.6. The learned Counsel for the respondent sought to support the decision of the District Forum by pointing out that even as per the "isi specification Indian Standard Asbestos Cement Products Methods of Test (First Revision) Clause 5 concerning tests for impermeability shall be carried out by either of the methods described in 5.2 and 5.3. It is stated, appearance of traces of moisture at the lower surface is permissible. The learned Counsel sought to maintain that what has been visualised by P. W.6 being dampness throughout cannot be said to be one that is permissible by ISI standard. What is the permissible traces of moisture and dampness cannot be fixed without having the aid of an expert opinion on that particular aspect. This is more so, because even P. W.4 who filed Exts. C1 and C3 the Advocate Commissioner do not report that there was tripping from the roof though it was monsoon season. Whether the appearance of moisture, and dampness was such that the same could demonstrate that the said condition was due to manufacturing defect is a matter for an expert to state, but the expert P. W.6 does not say as regards the same instead he would insist that he has reported only on the basis of visual examination. Adding to this there is a case for the opposite parties that whatever dampness or other defect, the same was occasioned due to the wrong laying of the AC sheet and structural defect of the auditorium. The report submitted by the expert is not helpful in reaching a conclusion as to this aspect.

(3.) In this connection it is necessary to note what Sec.13 (1) (c) of the Consumer Protection Act, 1986 requires to be established. When the dispute is as regards defect in the goods, it states when the alleged defect of the goods cannot be determined without proper analysis or tests of the goods the District Forum is directed to obtain sample of the goods from the complainant and then get it analysed whenever such process is possible. One thing is clear, the main basis of the contention of the complainant is that there is defect in the AC sheet purchased by. him which defect he would claim is a manufacturing defect. Thus the very case being defect in the goods it was essential and necessary that the goods were subject to expert examination and the result produced. In that regard the decision in AIR 1999 SC 3318, also throws much light. Having regard to the said features that appear in the evidence we cannot support the conclusion reached by the District Forum that the goods in question suffered from manufacturing defect so as to issue the direction which it did. But one cannot non suit complainant on that ground because once it is detected that the Commissioner failed report his opinion with relevant material, it was necessary for the District Forum to remit the report to the expert Commissioner and call the report touching on the points to which advertance has already been made. Consequently we are of the view that the impugned order has to be set aside and the matter has to be remitted to the District Forum.