KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

                            VAZHUTHACAUD THIRUVANANTHAPURAM                                                                                                                   

APPEAL NOS.414/06 & 784/06

COMMON JUDGMENT DATED 11/7/2011

PRESENT

SHRI.S.CHANDRAMOHAN NAIR                    --  MEMBER

APPEAL NO.4142006

M/s.Mahindra & Mahindra Ltd.,

Akurli Road, Kadivali (E)                                    --  APPELLANT

Mumbai.

   (by Adv.C.H.Sunil)

                   Vs.

1.      P.J.John

          Parampath House,

          Thiruvaniyoor,                                            --  RESPONDENTS

          Ernakulam District.

2.      M/s.Malayalam Industries Ltd;                                             

          Mermaid Complex, Kaniyampuzha,

          Road, Vyttila, Cochin – 19.

             (R1 by Adv. Biju Abraham)

APPEAL NO.784/06

M/s.Malayalam Industries Ltd;                                             

Mermaid Complex, Kaniyampuzha                    --  APPELLANT

Road, Vyttila, Cochin – 19.

   (By Adv.George Cherian Karippaparambil)

                   Vs.

P.J.John

Parampath House,

Thiruvaniyoor,                                           

Ernakulam District.

M/s.Mahindra & Mahindra Ltd.,                 --  RESPONDENTS

Akurli Road, Kadivali (E)

Mumbai.                                          

   (R1 by Adv. Biju Abraham)

COMMON JUDGMENT

 SHRI.S.CHANDRAMOHAN NAIR,MEMBER

          The order dated 26.5.06 of CDRF, Ernakulam in CC No.63/06 is being assailed in this appeal by the opposite parties who are under directions to refund the price of the Diesel Generator purchased by the complainant with interest at 10% per annum from the date of complaint till payment with cost of Rs.2,000/-.  The second opposite party has filed Appeal 414/06  and the first opposite party has filed Appeal 784/06  calling for the interference of this Commission as to the sustainability of the order passed by the Forum below.

          2. The complainant’s case before the Forum below  was that he had purchased a 15 KV MIL GEN Diesel Generator from the first opposite party  on 13.5.04  for an amount of Rs.1,33,000/- which was manufactured by the second opposite party.     The complainant has alleged that after installation of the generator there was some defects in the generator and that even after the technician came and rectified the mistakes the generator continued to be defective and that in spite of another technician being sent by the opposite parties the defects could not be rectified.   Alleging deficiency in service the complaint was filed praying for directions to the opposite parties to return  the price of the generator with compensation and costs.

          3. The first opposite party entered appearance and filed vakalath.  The second opposite party though received the notice from the forum below  did not appear and file any version.  It was based on the affidavit of the complainant and the documents produced by him that the forum below passed the impugned order.

          4. Heard the respective counsels for the appellants and the respondent/complainant.

          5. The learned counsel for the appellant/second opposite party in A.414/06 vehemently argued before us that the forum below did not consider the version filed by the opposite party and that it was without giving any opportunity to the opposite party that the order was passed.  The learned counsel for the appellant/first opposite party in A.784/06 has also submitted before us that even though vakalath and version were filed, the forum below did not advert to the contentions taken by the opposite parties in their versions.  The learned counsels argued for the position that the case is to be remanded to the forum below for fresh disposal after considering the contentions of the opposite parties.

          6. On the other hand, the learned counsel for the first respondent/complainant in both appeals supported the order of the forum below.  It is his very case  that in spite of getting  notice, the opposite parties were negligent in contesting the matter and hence the order of the forum below is liable to be upheld and the appeals are to be dismissed with compensatory costs.  It is contended by him that the forum below had appreciated the  exhibits produced  by the complainant in its correct perspective and that the order is a well considered one.

         7. On hearing the learned counsel for the respective parties, it is found that the appellants have a case that they have filed their versions though belatedly and the forum ought to have considered the contentions contained in the versions.  We find that the forum below has passed the order within the statutory period.  All the same, it is also found that the opposite parties have filed their version.  They have produced the copies of the version before this commission allowing with the appeal memorandum.  We find that it is only just and proper that the opposite parties are given a chance to contest the matter in accordance with the law.    But it is found that  they received the notices and it was after receipt of the notice that they have filed their versions   belatedly.  In the said circumstances, we find it appropriate to remand the matter on terms.  The appellants/opposite parties are directed to pay Rs.2,500/- each to the first respondent/complainant within one month after receipt of the copy of this  order.  On payment and filing memos, the Forum below shall issue notice to the parties and give opportunity to the opposite parties to adduce evidence in support of their contentions.  The complainant is also at liberty to adduce further evidence if any if he so desire.  The parties are directed to appear before the Forum below on 15.9.2011.

 S.CHANDRAMOHAN NAIR --  MEMBER