Order

Heard learned counsel for both sides.

2. Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3. The case of the complainant in nutshell is that the OPs made advertisement for the sale of the machine to prepare cotton thread. Being lured by the advertisement, complainant purchased one machine on payment of Rs. 1,30,000/- from the OPs. It is alleged inter alia that the complainant found the defects in the machine. After being examined by the expert, it is found that the machine is old, rotten and outdated one and he requested the OPs for refund of the amount but it was not acceded for which complaint case was filed.

4. OP No.1 was ex parte. OP No.2 filed written version stating that he is the agent for selling of such machine. OP No.1’s firm has been taken over by new Proprietor Sunil Kumar Chowrasia who used to manufacture the machine. It is averred that he has sold the machine to the complainant and it was not defective at all. It is stated that the complainant requested OP No.1 to take away machine as his son who was operating the machine joined Indian Army. Since the machine was not required, he filed the false complaint case. So, OP No.1 has no any deficiency in service.

5. After hearing both parties, learned District Forum passed the following impugned order:-

“xxx xxx xxx The consumer complaint no. 144 of 2011 is allowed on contest and (i) The OP No.1 & 2 are directed to refund Rs.1,50,000/- received on 18.8.2009 and 30.8.2009 under Annexure - 2 & 3 respectively with interest @ 9% per annum simple from the date of receipt till payment.

(ii) The Opp. parties shall also pay a compensation of Rs.10,000/-to the complainant for mental agony and harassment along with Rs.5000/- towards the cost of litigation. This order shall be carried out within a period of 30 days of receipt of the order.”

6. Learned counsel for the appellant submitted that the learned District Forum has committed error in law by passing the impugned order without any expert evidence being filed to justify the machine was defective or old one. According to him, he being the only agent has sold the machine whereas Sunil Kumar Chowrasia the Proprietor of M/s SALMCO is the principal but latter has not been made party in this case. Learned District Forum ought to have considered such fact and should have dismissed the complaint being bad for non-joinder of necessary party. Learned District Forum without any discussion on the allegation has passed order for which it should be set aside by allowing the appeal.

7. Learned counsel for the respondent/complainant submitted that OP No.2 has sold the similar machines to other six persons also and all are defective machines. He referred to FA No. 550 of 2011 for the same allegation by another person and that case ended with compromise. He submitted that when there is settlement of case, OP No.2 is found to have admitted the fault. He further submitted that OP No.2 has not issued warranty also to cover any sort of risk on the machine. He submitted that there is unfair trade practice on the part of the OPs and as such learned District Forum passed the correct order. On the other hand, he supports the impugned order.

8. Considered the submission of learned counsel for the respective parties and perused the DFR including the impugned order.

9. Complainant is required to prove the deficiency in service on the part of the OPs.

10. It is admitted fact that the complainant has purchased the machine to prepare the rolls of the cotton thread from OP No.2. Now the only question arises whether the machine became defective or not. In this regard the complainant has only filed the complaint. No expert opinion has been filed to show that the machine became defective from the beginning. Although the complainant submitted that he has got expert opinion. Of course, in the DFR a