KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACADU THIRUVANANTHAPURAM

APPEAL NO:296/05

JUDGMENT DATED:30..11..2007

PRESENT

SRI.M.V.VISWANATHAN                        --  JUDICIAL MEMBER

SRI.S.CHANDRAMOHAN NAIR              --  MEMBER

M/S.Krishnan Nair & Sons,

Watch Dealers,  Padmavilasam Road,                --  APPELLANT

Thiruvananthapuram – 23.

  (By Ad.N.Padmini & Others)

             Vs.

1. B.Prem,

    Govinda Mangalam,

    Venjaramoodu, Thiruvananthapuram.

2. D.Premalatha, Advocate,                            

    Govinda Mangalam,                                   --  RESPONDENTS

    Venjaramoodu,

    Thiruvananthapuram district.

3. Westar International Ltd., 65,

    Sarakki Industrial Lay out,

    Bangalore

   (By Adv.Narayan.R)

                                                            JUDGMENT

SRI.M.V.VISWANATHAN:JUDICIAL MEMBER

          The above appeal is preferred from the order dated:31..7..2002   of the CDRF, Trivandrum in OP:261/99.  The complaint in the said OP:261/99 was preferred by the respondents 1 and 2 herein as complainants against the appellant   (1^st opposite party) and the 3^rd respondent   (additional 2^nd opposite party) alleging deficiency of service on the part of the opposite parties 1 and 2 and requesting for replacement of the defective watch or for refund of Rs.2720/- representing the price of the defective watch and also for compensation and cost.  The aforesaid claim was repudiated by the 1^st opposite party.  There was no representation for the 2^nd opposite party and they remained exparte.  The lower forum accepted the case of the complainants to a greater extent and thereby directed the opposite parties 1 and 2 to refund Rs.2176/- with future interest at the rate of 14.5% and also to pay a sum of Rs.1500/- as compensation with cost of Rs.1500/-.  Aggrieved by the aforesaid order the present appeal is filed by the 1^st opposite party, the dealer of the watch.

          2. We heard the counsel for the appellant/1^st opposite party and the respondents 1 and 2/complainants.  The learned counsel for the appellant submitted his arguments based on the grounds urged in the appeal memorandum.  She canvassed for the position that the watch was found defective due to its manufacturing defect and so the appellant/1^st opposite party being the dealer cannot be made liable for refund of the amount or for payment of compensation.  She has also relied on Ext.C1 report of the expert commissioner and pointed out that the watch was having manufacturing defect.  Thus, the appellant/1^st opposite party requested for absolving the 1^st opposite party from the liability.  The learned counsel for the respondents 1 and 2/complainants fairly conceded the fact that the appellant/1^st opposite party being the dealer is to be absolved from the liability because of the fact that the watch purchased by the complainants happened to be defective due to its manufacturing defect.  Thus, the respondents 1 and 2/complainants have no objection in absolving appellant/1^st opposite party from the liability.  There was no representation for the 3^rd respondent/2^nd opposite party.

3 Points that arise for consideration are:-

1.             Whether the lower forum can be justified in finding the appellant/1^st opposite party, liable to compensate the complainants (respondents 1 and 2)?.

2.             Is there any sustainable ground to interfere with the impugned order passed by the lower forum in OP: 261/99?

4. POINTS 1 AND 2

          There is no doubt that the complainant purchased thewatch referred to in the complaint, for a consideration of Rs.2720/- and that subsequently the watch developed some defects. It is also an admitted fact that the aforesaid watch was subjected for expert examination by expert commissioner and the expert submitted Ext.C1 report.    C1 report would make it clear that there was manufacturing defect in the watch purchased by the complainants.  If that be so, the lower forum is justified in ordering compensation to the complainants for supplying the defective watch having manufacturing defect.  But the lower forum has gone wrong in making the 1^st opposite party, the dealer as liable for deficiency of service on account of supplying a defective watch.  It is the established case that the watch which was supplied or sold to the complainants was having manufacturing defect.  If that be so, the appellant/1^st opposite party being only the dealer of that watch cannot be made liable.  Only the 2^nd opposite party (3^rd respondent), the manufacturer can be made liable for effecting sale of watch having manufacturing defect.  So, we are pleased to modify the impugned order passed by the lower forum.  Thereby the appellant/1^st opposite party is absolved from the liability to refund the sum of Rs.2176/- and payment of compensation and cost.  It is made clear that the 2^nd opposite party/3^rd respondent, the manufacturer alone is liable to pay the decree debt covered by the impugned order dated:31..7..2002 in OP:261/99 on the file of the CDRF, Trivandrum.

          In the result the appeal preferred by the 1^st opposite party, dealer in OP:261/99 on the file of the CDRF, Trivandrum is allowed.  Thereby the impugned order dated:31..7..2002 passed by the lower forum in OP:261/99 is modified.  The appellant/1^st opposite party is absolved from the liability to pay any amount or compensation to the complainants/respondents 1 and 2. Only the 2^nd opposite party/manufacturer (3^rd respondent) is liable to pay compensation and cost and also for refunding the sum of Rs.2176/- as ordered by the lower forum.   As far as the present appeal is concerned, Parties are directed to suffer their respective cost.

SRI.M.V.VISWANATHAN           --  JUDICIAL MEMBER

SRI.S.CHANDRAMOHAN NAIR --  MEMBER

S/L