KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 537/2022

JUDGMENT DATED: 18.04.2023

(Against the Order in C.C. 146/2021 of CDRC, Kollam)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN     : PRESIDENT

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI.RANJIT. R                                                                   : MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANT:

Hareesh Kumar, Managing Director, Powertek Enterprises, Desasevini Junction, Pattazhi P.O., Kollam.

                      (By Advs. C.S. Sunil and Suneetha V.)

                                                Vs.

RESPONDENT:

Bindhu, W/o Prakash, Prasannalayam, Vallikunnam Muri, Vallikunnam P.O., Alappuzha.

                                (By Adv. K. Vijayan)

JUDGMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

The appellant is the opposite party in C.C. No. 146/2021 before the District Consumer Disputes Redressal Commission, Kollam (District Commission for short).  On 29.07.2022 the District Commission had passed an order directing the appellant to replace the machinery supplied to the complainant with proper machines as ordered by the complainant or in the alternative to return Rs.1,25,000/- with interest @12% per annum from the date of purchase, to pay Rs.1,00,000/- as compensation and costs Rs.5,000/-.  Being aggrieved by the above order this appeal has been filed.

2.  The case of the complainant in brief is that the complainant is the proprietor of "SPC Tiles and Bricks Company". When the representative of the opposite party visited the premises of the complainant she expressed her requirement for machineries to set up a unit.  The opposite party made the complainant believe that supply of the requisite machinery will be effected.  On 05.09.2019 the opposite party gave proforma invoice to the complainant and on the basis of the recommendation and report of the opposite party the complainant decided to purchase ten types of machinery.  The representative of the opposite party had obtained the signature of the complainant in several papers before supplying the machinery.  The machinery was supplied on 23.10.2020, but the opposite parties had postponed checking of the machinery and in the meantime the entire amount covered by the invoice was obtained well in advance.  Inauguration of the industrial unit of the complainant was fixed on 14.01.2021.  During the trial run it was realized that the machinery supplied was colour mixing machinery which was not suitable for the industrial unit proposed to be started by the complainant.  The opposite party had obtained the signature of the complainant in several papers by exploiting her lack of technical knowledge and ignorance about the nature of machinery and thus the opposite party had cheated the complainant.  Hence the complaint.

3.  Though the opposite party was served with notice issued by the District Commission, he remained absent and an exparte order was passed.

4.  In the appeal memorandum the following averments are made.  The opposite party never manufactured any machines and he used to supply machineries as per the needs of the customers.  The complainant had asked for a quotation which was accepted and thereafter the machinery was supplied.  There was no cheating or deficiency of service on the part of the opposite party.  It is not possible for the company to take back the customized machines fixed as ordered at the premises of the complainant.  The opposite party is only a middle man and hence the manufacturer is a necessary party to the complaint.  Without considering these aspects the District Commission had passed the impugned order.

5.  Heard the counsel for the appellant.  Perused the appeal memorandum.

6.  The appellant had not filed version before the District Commission within the statutory time limit and hence he was set exparte.  In view of the ruling of the Constitution Bench of the Apex Court in "New India Assurance Co. Ltd Vs Hilli Multipurpose Cold Storage ( P) Ltd " reported in 2020 (5) SCC 757 the Tribunal has no authority to receive the version of the opposite party after the time prescribed by the statute.  Since the appellant is prevented from filing version for contesting the matter no purpose will be served by admitting the appeal.  On going through the order passed by the District Commission it could be seen that the case pleaded in the complaint was sworn to by the complainant before the District Commission which was found acceptable and the order in dispute was passed.  As the statutory period for filing the version had already elapsed the appellant would not be in a position to file a version and seek for an adjudication on merits.  So we find that the appeal is only to be dismissed without admission and calling for the records from the District Commission.

In the result the appeal is dismissed.

                           Sd/-

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                          Sd/-

AJITH KUMAR  D. : JUDICIAL MEMBER

                            Sd/-

                                                               RANJIT. R                      : MEMBER

                         Sd/-

                                                            BEENA KUMARY. A         : MEMBER

                          Sd/-

                                                         RADHAKRISHNAN K.R.  : MEMBER

jb