KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.758/03 JUDGMENT DATED.18.03.08
PRESENT:-
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRA MOHAN NAIR : MEMBER M/s.Imperial Products of India, 414-A, Industrial Area-II, Chandigarh 160002, represented by its Proprietor, : APPELLANT Jagir Singh, S/o.Gurdit Sing, (By Adv.V.R.Rajmohan Nair & Others) Vs Sri.Charles C.Ittoop, Proprietor, Rolf Press Forge Company, : RESPONDENT Kavalapara P.O., Koonathara, Palakkad District.
JUDGMENT
SRI.M.V.VISWANATHAN: JUDICIAL MEMBER The above appeal is preferred from the order dated.30.07.03 of the CDRF, Palakkad in OP.385/01. The complaint in the OP.385/01 was filed by the respondent herein as complainant against the appellant as opposite party claiming compensation of Rs.4 lakh on the ground of deficiency in service and unfair trade practice on the part of the opposite party. The case of deficiency of service was denied and disputed by the opposite party by filing written version. The opposite party had also taken the contention that the complainant is not a consumer coming under the purview of Consumer Protection Act and that the forum below (CDRF, Palakkad) has no territorial jurisdiction to entertain the complaint in OP.385/01. But the forum below accepted the case of the complainant and thereby directed the opposite party to pay a sum of Rs.2 lakh as compensation with interest at the rate of 6% per annum. Aggrieved by the said order the present appeal is filed by the opposite party. 2. When this appeal was taken up for final hearing there was no representation for the respondent/complainant. Though notice was issued to the respondent in this appeal he remained absent. So, we heard the counsel for the appellant/opposite party. The learned counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal and requested to set aside the impugned order passed by the forum below. It is also submitted that the opposite party had produced four documents along with the written version, but there is no mention in the impugned order about those documents produced from the side of the opposite party. 3. The points that arise for consideration are:- Whether the respondent/complainant is a consumer coming under the Purview of the Consumer Protection Act?
Whether the case of the appellant/opposite party that the forum below had no territorial jurisdiction to entertain the complaint in OP.385/01 can be upheld? Whether the alleged deficiency of service and unfair trade practice on the part of the opposite party can be accepted? Is there any legally sustainable ground to interfere with the impugned order dated.30.7.03 passed by the CDRF, Palakkad in OP.385/01?
4. Points 1 to 4: For the sake of convenience we will consider these points together. 5. The sale transaction between the appellant/opposite party and the respondent/complainant is not disputed. It is admitted that the respondent/complainant purchased a machine from the appellant/opposite party on a total sale consideration of Rs.61,000/-. Evidencing that transaction there is an order placed by the complaint and the quotation submitted by the appellant/opposite party. It is the case of the complainant that he purchased the aforesaid machine for the purpose of doing bending and straightening works. But according to the complainant the aforesaid machine could only be used for bending works and the said machine could not be used for straightening works. On the other hand, the opposite party/manufacturer of the said machine would contend that the aforesaid machine can be used for bending and straightening works and it is only to be used with working experience. The complainant could not operate the said machine for the aforesaid two purpose. It is to be noted that the complainant has not adduced any acceptable evidence to substantiate his case that the machine supplied by the opposite party company could not be used for straightening works. No expert was appointed from the forum below to ascertain the correctness of the allegation leveled against the opposite party/manufacturer of the machine. No expert opinion is forthcoming from the side of the complainant. The forum below without any reliable evidence came to the conclusion that there was deficiency in service on the part of the opposite party. Thus, the findings and conclusions of the forum below can be treated as one based on the pleadings made by the complainant. It is also to be noted that the forum below totally failed to consider the contentions specifically taken by the opposite party and also the documents referred to in the written version filed by the opposite party. The impugned order would make it clear that the said order is cryptic and without any effective discussion of the evidence on record. The forum below has not considered the available materials on records in its correct perspective. Thus the impugned order is liable to be set aside. 6. Another material aspect to be noted is the claim made by the complainant for a sum of Rs.4 lakh and the compensation of Rs.2 lakh ordered by the forum below. Admittedly the complainant purchased the machine for a total sale consideration of Rs.61,000/-. Even if the machine was not working as assured by the opposite party, then also the opposite party can only to be fastened with the liability to refund the price of the machine or to replace that defective machine. Of course, if there occurred any sort of hardship then the opposite party can also be fastened with the liability to pay reasonable compensation for the hardship suffered by the complainant. But in the present case there is nothing on record to show that the complainant had suffered any sort of hardship, On account of the failure of the machine which was purchased by him from the opposite party/manufacturer. Another aspect to be noted is that the machine was purchased for doing dual purpose ie; for bending and straightening. Admittedly the aforesaid machine can be used for bending purpose. It is also come out in evidence that the price of the bending machine would come to Rs.59,500/- and that of the straightening machine would also come to Rs.59,500/-. It is also to be noted that the complainant placed the order for the aforesaid machine in order to save a sum of Rs.59,500/- and that the complainant incurred the additional expense of Rs.1500/-. So at any rate the compensation of Rs.2 lakh awarded by the forum below is highly excessive and the same has been ordered without any basis or reasoning. On that ground also the impugned order is liable to be quashed. 7. The opposite party had taken the contention in its written version that the complainant is not a consumer coming under the purview of Consumer Protection Act because of the fact that he is proprietor of two Iron Fabrication Units. It is true that there is an averment that the complainant is earning his livelihood by doing fabrication work. The complainant admitted that he is a proprietor of Rolf Engineering Company which is a sister concern of Asoka Hardwares. Then it is for the complainant to prove that he is earning his livelihood by running the aforesaid two fabrication units. But there is nothing on record to substantiate the said case of the complainant. The forum below has not even considered the aforesaid contention that the complainant is not a consumer coming within the purview of Consumer Protection Act 1986. Thus, the materials on record would warrant interference with the impugned order passed by the forum below in OP.385/01. 8. It is the definite case of the appellant/opposite party that he adduced documentary evidence in support of the contention taken in the written version. But the forum below has not referred the documents mentioned in the written version. There is not even a whisper about those documents referred to by the opposite party in the written version. So we are of the view that this is a fit case to be remitted back to the forum below to consider all the materials available on record and also to discuss and answer all the relevant issues involved in this case. So, this Commission is pleased to set aside the impugned order passed by the forum below and to remand the matter to the forum below for fresh disposal in accordance with law. These points are answered accordingly. In the result the appeal is allowed to the extent that the matter is remitted back to the forum below by setting aside the impugned order dated.30.07.03 passed by the CDRF, Palakkad in OP.385/01. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. The parties are directed to appear before the forum below on 29.04.08.
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
SRI.S.CHANDRA MOHAN NAIR : MEMBER
R.AV | 
