Sri Shyamal Gupta, Member

Aggrieved with the order of Ld. DCDRC, Kolkata—I (North) in CC/695/2014 dated 04.09.2017, this Appeal is moved by the Appellant/OP.

The fact of the case according to the complainant, in brief, is that complainant on behalf of Bharat Cooperative Housing Society Ltd., Sankrail, Howrah purchased an Iron Removal Plant (FRP) against a consideration of Rs. 32,000/- on 29.11.2013 from M/s Zeolite India (P) Ltd. (Water Treatment Engineers), 209, AJC Bose Road, Kolkata—700017 (o.p) and the plant was installed on 30.11.2013 with demonstration of back washing and rinsing of the filter as per instruction of the operating manual provided by o.p. But the functioning of the Water Treatment Plant appeared to be deteriorated with emanating down black water and complainant informed about mal-functioning of the plant to the o.p over phone, time and again, to take action. The technician of the o.p came on 01.04.2014 for collection of water from the plaint but no fruitful result had been rendered by the o.p subsequently.

Finding no solution and being aggrieved complainant filed the complaint on 17.11.2014 praying direction to replace the defective one with new one or to pay Rs. 52,000/- for new plant including compensation for damage and cost, not mentioned specifically.

Appellant/OP in W.V denied the same and submitted that there was no defect but it was detached and unused for a longtime.

On hearing both sides the Ld. DCDRC allowed the Complaint Case with a direction to O.P to pay Rs.32,000/- alongwith compensation and litigation cost.

Being aggrieved, O.P/Appellant filed this Appeal. On hearing the submission of both sides, it appears to me that the issue No. 1 whether there was any defect in the plant (FRP) is not properly dealt by the Ld. DCDRC. There is a complaint and counter complaint by both sides so far.

1. Hand Over the warranty card
2. Defect in the plant

On the strength of submission and counter-submission, the defect of a plant cannot be ascertained.

The onus to prove the defect is on the complainant. Section 13(1)(c)  of the Consumer Protection Act, 1986 proves that if a complainant alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain sample of the goods from the complainant, with a view to find out whether such goods suffer from defect alleged in the complaint or from any other object and report it back to the District Forum based on which the District Forum determines the dispute between the parties.

Respondent/Complainant failed to show by leading any evidence whatsoever to prove any manufacturing defect in the vehicle. Manufacturing defect is fundamental basic defect which creeps while manufacturing a machinery. To prove such a defect, opinion of an Expert is necessary.

At this juncture, the case is remanded back to the Ld. DCDRC with a direction to re-hear the Issue No. 1 afresh after obtaining the expert opinion. O.P/Complainant is directed to take necessary step over the matter. Thus the instant case is allowed in part.