IMPORTANT POINT
Allegation of manufacturing defect has to be proved by expert evidence.

Mr. B.K. Taimni, Member —

Appellant was the opposite party before the State Commission, where the respondent / complainant had filed a complaint alleging deficiency in service on the part of the appellant.

Briefly stated the facts leading to filing the complaint were that the complainant had purchased a ‘Cell Analyser’ from the appellant in the month of October 1998, after paying Rs.5,39,215.69 ps. which was installed in the complainant’s diagnostic centre in Feb. 1999. It was the case of the complainant that after installation, it was found that the equipment was not giving a correct reading, which was reported to the appellant / OP, upon which, they sent their Engineer to remove the defects, yet despite several efforts / visits, the performance of the equipment did not improve. It was the case of the complainant that there was inherent manufacturing defect and in these circumstances, a complaint was filed before the State Commission, where the matter was contested by the appellant and the State Commission after hearing the parties, allowed the complaint and directed the appellant to pay Rs.5,39,215.69 ps. alongwith interest @12% p.a. from the date of filing the complaint till realization. Compensation of Rs.25,000/- and cost of Rs.2,000 / - was also awarded. Aggrieved by this order, this appeal has been filed before us.

We heard the learned Counsel for both the parties at considerable length and perused the material on record.

First of all, we like to observe that the State Commission apparently erred in recording at page 3 of their order that “the OPs have filed the version disputing the claim for which they have not filed any affidavit by way of evidence in support of their case.”

The order-sheet of the State Commission has been produced before us. The later part of the observation of the State Commission is not sustainable for the simple reason that the State Commission in the order-sheet has recorded affidavit filed by the OP.

It is the case of the Counsel for the appellant that the order passed by the State Commission needs to be set aside on three grounds, firstly, that the complainant was not a ‘consumer’ as he had purchased the equipment for commercial purpose; secondly, no manufacturing defects in the equipment has been proved, and, thirdly, the complaint is barred by limitation.

As far as the first plea is concerned, we have gone through the written version filed by the appellant before the State Commission and find that no specific plea has been taken before the State Commission, except baldly stating that complaint is not maintainable, which does not help the case of the appellant in this regard. He has drawn our attention to the discussion on this issue by the State Commission, but in view of the fact that no such plea was taken by the appellant in the written version filed before the State Commission, the discussion on the point or otherwise will have no bearing, for the simple reason that this was not the plea taken by the appellant, in the written version filed by the Appellant before the State Commission, in view of which, we see no merit in this plea.

As far as the question of limitation is concerned, it is the case of the appellant that equipment was purchased in October 1998 and the complaint was filed in 2001. This point has been discussed in the State Commission and we entirely agree that the period of limitation will not start from the date of sale, but from the date of last visit of the Engineer, who repaired the equipment, which was in the year 2000, hence, we do not find that the complaint was barred by limitation.

As far as the question of ‘manufacturing-defect’, in the equipment is concerned, it is the case of the appellant that no ‘expert’ evidence has been led to this effect by the complainant. What was produced before the State Commission was the affidavit of one Dr. V.V. Yenni, who is a consulting pathologist and also of a technician, which cannot be said to be report of expert. It