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Judgment
THIS is an appeal filed by Sabeena Cycle Emporium, Chinnakkada, Quilon against an order dated 5.12.1990, of the Consumer Disputes Redressal Forum, Kollam in O.P. (Q) 43/90 allowing the respondent Thajes Ravi to get the replacement of the broken frame of his cycle and to get an amount of Rs. 140/ for his Medical expenses.
ON 24.8.1989 the respondent in this appeal purchased a B.S.A. Cycle from the appellant. He rode the cycle for 10 days and were no complaints during those ten days. ON the eleventh day while he rode the cycle to go to his tution class, its frame was broken and he fell on the road infront of his house and sustained injuries. He had undergone treatment for two weeks. When these facts were brought to the notice of the appellant, he replied that he could do nothing. Therefore a complaint was instituted by the respondent before the District Forum, Kollam, claiming the replacement of the cycle and the reimbursement of medical expenses. The District Forum, Kollam passed an order directing the opposite party to replace the broken frame and the damaged accessaries with new frame and accessaries which are free from any defect and to pay Rs. 140/- to the respondent by way of medical expenses incurred by him. Against that order this appeal his been filed. The important contentions in the appeal is that the appellant was not examined and was not given an opportunity to adduce evidence and that the lower Forum has not sought the opinion of the expert to the mechanical condition of the cycle. Another ground stated in the appeal is that the lower Forum has failed to appreciate the fact that for the last eleven months the appellant never made a complaint about the matter. It was contended that the lower Forum has failed to notice the fact that no information regarding the damages of the cycle was communicated to the appellant.
On a perusal of the records and after hearing both sides we come to the following conclusions.
AS per the order sheet of the District Forum the notice was issued on 30.6.1990. The next posting of the case was on 21.8.1990. The version of the opposite party dated 16.8.1990 was filed on 17.8.1990. The case was again posted to 26.10.1990. On that day a vakalath was filed on behalf of the opposite party. PW1 was examined on 26.10.1990. But he was not cross examined. If the opposite party (Appellant) wished to adduce evidence and to be examined it could have been done on 26.10.1990. For orders the case was posted to 15.12.1990. Meanwhile on 5.11.1990 another statement also was filed by the appellant. If the appellant wished to adduce evidence, he could do that and there was sufficient time for that. Appellant filed his version on 17.8.1990 and both parties were given sufficient time i.e., from 21.8.1990 to 26.10.1990 to adduce evidence if they wanted to. No oral or documentary evidence was produced by the appellant to support his case, before the District Forum. There is nothing to show that the appellant wished to be examined and to adduce evidence. The appellant did not even file a witness schedule. From the records we cannot see that the District Forum had done any injustice to the appellant we do not think that the right of the appellant to examine himself and to adduce other evidence was denied by the District Forum. It was argued by the appellant that the lower Forum has not sought the opinion of an expert on the Mechanical condition of the cycle. The appellant admits that he had sold the cycle to the respondent. But according to him the cycle was not assembled at the time of sale. He handed over the parts of the cycle to the respondent and it was not assembled by the appellants. According to him the breakage of the cycle was due to the wrong assembling.
IT was contented by the appellant that they sold only a non assembled cycle and it was assembled by, somebody in the respondent''s house. The argument of the appellant is that the breakage of the frame was due to wrong assembling of the cycle. Appellant''s contention is that if they had supplied an assembled cycle, the assembling charge would have been stated in the bill and as the assembling charge was not stated in the bill, it is clear that the cycle supplied was a non-assembled cycle. In this appeal the question to be decided is whether the District Forum had gone wrong in deciding that the breakage of cycle was due to manufacturing defect. According to the appellant the breakage of the cycle was not proved because the cycle was not produced before the Forum and the cycle was not inspected by an expert in order to prove that the breakage was due to manufacturing defect. But the respondent argued that it was brought before the District Forum.
ACCORDING to the deposition of the respondent while he was riding the cycle some parts of the cycle fall off and then the frame broke. ACCORDING to him that was happened due to the manufacturing defect of the cycle.
The District Forum came to the conclusion that the breakage of the cycle was due to manufacturing defect. They arrived at this conclusion on the basis of the dePosition given by the resPondent. In the order of the District Forum it is stated thus, "Petitioner has been examined as PW1. He has dePosed that, while he was riding the cycle, some Part of the cycle fell off and then the frame broke. In his oPinion it haPPened as a result of manufacturing defect. There is nothing to doubt his statement".
Pw1 is a boy of 16 years old and we do not think that he would give false evidence. There is nothing to doubt the statement of PW1. PW1 said that some Parts of the cycle fell off and the frame broke and in his oPinion that was due to manufacturing defect. The fact that the boy sustained injuries was Proved by the medical certificate dated 14.5.1989. But we think that it was not ProPer for the District Forum to come to a conclusion that the breakage of the cycle was due to manufacturing defect relying only on the oPinion of a 16 year old boy.
Where a comPlaint alleges a defect in the goods the forum is bound to determine this fact based on the basis of clear evidence. In this case the breakage of the cycle may be due to some inherent manufacturing defect. So also it may haPPen due to the wrong assembling of the cycle as argued by the aPPellant because according to the resPondent some Parts of the cycle fell off and the frame was broken. .But the comPlainant had not cared to adduce an exPert oPinion on this asPect and Prove his case. Therefore, we are of the view that the District Forum ought to have relied on exPert oPinion to come to the conclusion that the breakage of the frame of the cycle was due to manufacturing defect. In the result, the aPPeal is allowed and the order of the District Forum, Kollam dated 5.12.1990 is set aside. Both Parties will bear their own costs of this aPPeal. APPeal allowed.