IMPORTANT POINT
In absence of an expert opinion it cannot be said that asbestos sheet manufactured by the opposite party is defective.

M.V. Viswanathan, Judicial Member— The above appeal is directed against the order dated 30.3.2004 of the CDRF, Idukki in OP. No. 229/03. The complaint in said original petition was filed by the 1st respondent herein as complainant against the 2nd respondent and the appellant as opposite parties 1 & 2 respectively claiming refund of the price of 34 numbers of asbestos sheets purchased by the complainant from the opposite parties with an alternative prayer to get the asbestos sheets replaced. The opposite parties denied and disputed the case of deficiency of service on their part. They contended that there was no manufacturing defect in the asbestos sheets sold to the complainant; but the complainant laid the sheets not in accordance with the accepted specifications. But the Forum below accepted the case of the complainant and thereby passed the impugned order directing the opposite parties to replace the asbestos sheets at their costs and expenses with new good quality asbestos sheets failing which the opposite parties are directed to pay a sum of Rs.10,000 with interest @ 12% from the date of default and also to pay cost of Rs. 2,000. Aggrieved by the said order the present appeal is filed by the 2nd opposite party (manufacturer) in OP. No. 229/03.

2. When this appeal was taken up for final hearing, there was no representation for the respondents 1 & 2. Though the first respondent entered appearance through a counsel of his choice, subsequently there was no representation for the 1st respondent (complainant). The 2nd respondent (1st opposite party) remained ex party. So this Commission was pleased to hear the arguments advanced by the learned counsel for the appellant. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He canvassed for the position that there was nothing on record to show that there was manufacturing defect in the asbestos sheets sold to the complainant. And that the Forum below passed the impugned order by relying on the report of an Advocate Commissioner who, according to him, is not competent to test and ascertain the defective nature of the asbestos sheets. He much relied on Ext. R1 IS Asbestos Cement Products—Methods of test by the Bureau of Indian Standards, New Delhi and R2 IS laying of Asbestos Cement Sheets—Code of Practice Part I corrugated sheets by the Bureau of Indian Standard, New Delhi. He vehemently argued for the position that there was nothing on record to show that disputed asbestos sheets were laid and tested as specified in Exs. R1 and R2. Thus, the appellant requested for setting aside the impugned order passed by the Forum below.

3. The points that arise for consideration are:

(1) Whether there was any manufacturing defect in the asbestos cement sheets manufactured by the appellant/ 2nd opposite party and sold to the complainant so as to warrant replacement of the same or refund of the price of the asbestos cement sheets?

(2) Is there any sustainable ground to interfere with impugned order dated 30.3.2004 passed by CDRF, Idukki in OP No.229/03.

4. Points 1 & 2

For the sake of convenience, we will refer the parties to this appeal according to their status before the Forum below in OP. No. 229/03

5. There is no dispute that the complainant purchased 34 numbers of Ramco asbestos sheets manufactured by the 2nd opposite party through the 1st opposite party dealer. It is the case of the complainant that after laying of those asbestos sheets there was leaking of the asbestos sheets during rainy season. The complainant requested for replacing those sheets or to refund the price of the sheets. But the opposite parties were not amenable for the demand made by the complainant. So, the complainant preferred the complaint in OP No. 229/03.

6. The definite case of the opposite parties is that there was no manufacturing defect for the asbestos sheets sold to the complainant and that the said asbestos sheets were manufactured as per the specifications s