Per Mr B A Shaikh, Hon’ble Presiding Member

1       This appeal is filed by the original opposite party; feeling aggrieved by the order dtd.06.08.2016, passed by District Consumer Forum, Nagpur in consumer complaint bearing No. CC/14/874, by which the complaint has been partly allowed.

2.      The facts in brief giving rise to the present appeal are as under.

          The original complainant, who is respondent in this appeal purchased modular kitchen trolleys and pull out for his kitchen from the appellant on 14.07.2014 for Rs.10,000/-. It is alleged by the respondent herein that the appellant had represented him that those trolleys were made of stainless steel and that they are of good quality and they will not turn black. It is further alleged by the respondent herein that within two months of purchase of the said trolleys, their colour started fading and they turned black.  Therefore, it was found that they were of sub-standard quality. Hence, he contacted the appellant and requested the appellant to take back those trolleys and refund the amount of Rs.10,000/- paid by him for purchasing the said trolleys.  He also sent a notice dtd.31.10.2014 to the appellant for refund of said amount. However, the amount was not refunded. Therefore, he filed a consumer complaint before the Forum below, seeking direction to the appellant to refund him Rs.10,000/- with interest @ 18% p.a. and also to pay him litigation cost of Rs.2,000/- and compensation of Rs.4,000/- for physical & mental harassment.

3.      The appellant herein appeared before the Forum below and filed reply and thereby resisted the complaint.  It is the case of the appellant in brief that it is doing business under the name & style as “Ajay Plywood & Hardware”.  He sold the trolleys to the respondent herein for a consideration of Rs.10,000/-. The respondent after two months from purchase of the trolleys approached the appellant and made grievance that the trolleys, got bit damaged. However, the respondent was negligent in taking care of the said trolleys and had not adhered to the advice of the appellant as to how the trolleys should have been maintained so that they would not be damaged. The respondent insisted that the price paid by him be refunded to him. Subsequently, the respondent requested the appellant to repair the damaged trolleys and that he and he does not want his money back and accordingly the appellant repaired those trolleys to the satisfaction of the respondent and he took back them alongwith his delivery memo without getting cancelled his earlier demand, which was accepted and written on it about refund of his money.  The complaint is baseless and therefore, it was prayed that the complaint may be dismissed.

4.      The Forum below after considering submission of both parties and evidence brought on record, passed the impugned order and held that it is proved that the trolleys sold by the appellant to the respondent were defective and therefore he is entitled to get refund of price paid with interest, compensation and cost.  Therefore, the Forum below directed the appellant to refund Rs.10,000/- with interest @ 9% p.a. from 14.06.2014 and further to pay him compensation or Rs.2,000/- for physical & mental harassment and litigation cost of Rs.2,000/-.

5.      As observed above, feeling aggrieved by the said order, the original opposite party has filed this appeal. 

6.      The learned advocate of the appellant filed Written Notes of Argument.  The respondent appeared in person and he also filed his reply / Written Notes of Argument. Today we have finally heard the respondent in person.  None appeared for the appellant for final hearing. On last date i.e. 22.11.2017 last chance was granted to the appellant for final hearing subject to payment of cost of Rs.500/- by the appellant to the respondent. However, the respondent submitted that the said cost is not paid to him by the appellant.  Therefore, we have proceeded to decide the appeal on merits though none appeared for the appellant today.

7.      We have also perused the entire record and proceedings of the appeal.  The respondent supported the impugned order and submitted that the appeal may be decided today reserving his rights to file the appeal for enhancement of the claim.  We find that his rights can be reserved subject to provisions of law.

8.      It is seen from the documents filed on record that the appellant had agreed to take back the trolleys and to refund the price of Rs.10,000/- when the said trolleys were taken by the respondent to the appellant after a period of two months from the purchase of the same as they were found defective. There is no evidence to show that after the trolleys were taken back by the appellant, the trolleys were repaired to the satisfaction of the respondent and then returned to respondent.  We find that when admittedly the trolleys were having major defects and as there is no evidence that the appellant got those trolleys duly repaired to the satisfaction of the respondent, the Forum below has rightly directed the appellant to refund Rs.10,000/- with interest, compensation & cost as per impugned order.

9.      We also find that though in the Written Notes of Argument filed by the learned advocate of the appellant, it is stated that the respondent did not follow the instructions given to him about taking proper care and usage. The said defence of the appellant is not supported by any document.  Moreover, it is also not proved that due to wrong usage of the trolleys by the respondent, they got damaged.  We, thus, find no substance in the submission made by the learned advocate of the appellant in his Written Notes of Argument filed in appeal. Therefore, we hold that there is no reason to interfere with the impugned order in this appeal.  In the result, the appeal deserves to be dismissed. Accordingly, following order is passed.

ORDER

i.        The appeal is dismissed.

ii.       The respondent is at liberty to file appeal for enhancement of the claim, if any, as per provisions of law. If such appeal is filed by the respondent then, it will be considered in accordance with law.

iii.      The appellant shall also pay cost of Rs.3,000/- in appeal in addition to the cost of the complaint awarded by the Forum below.

iv.      Copy of the order be furnished to both parties free of cost.