This is an application u.s.12 of the C.P. Act, 1986.
The subject matrix of the instant case is that on 2.2.2014 he had purchased a Godrej Fridge model No. M.GDOVS 195 Dex serial No. JI207410029 for Rs. 14,700/- vide retail invoice No. 3185 dated 02.02.2014 in the name of his son. Soon after its purchase the said refrigerator shows various defects for which the complainant reported the matter to the Opp. Party No-1 who contacted the Opposite Party No-2 and the mechanics of the Op No-2 attended the refrigerator three times but they failed in their attempt to rectify the defects. Complainant contacted the Op No-1 several times for rectification of defects but finally the OP No-1 disclosed that the Fridge is suffers from inherent manufacturing defects which cannot rectified. It is further submitted that due to the defiance in several/unfair trade practice activities of the above Ops the complainant put to financial loss, sustained much mental agony and physical harassment and finding no other alternative, the complainant takes shelter of this forum on a prayer either to deliver same model Fridge or to refund the cost of the Fridge, to award Rs. 30,000/- towards compensation, to award Rs. 5,000/- towards the cost of litigation expenses and any other relief.
Despite notice the Opposite party neither appeared nor filed his written version. Hence the OP set ex-parte vide our order dated 8th July, 2015.
Decision with reasons
Heard the complainant in course of hearing. Perused the pleading and gone through the record carefully. Further, despite notice and ample opportunities, the Opposite Parties neither appeared nor filed their written version in this case. We feel that the version of the complainant, cannot be disbelieved as there is no averment to the contrary or any evidence adduced by the Opp. Parties in rebuttal. Since the Opp. Parties did not filed any countres the version of the complainant, We feel that the version of the complainant connot be disbelieved as there was no averment to the claim of the claimant is admitted by the Opposite Parties. We have come across a decision delivered by the Hon’ble Supreme Court, reported in 1992 (2) Civil Court Cases page-91 S.C. in case titled vidya Dhar Munkif Rao & Another, wherein the Hon’ble Court held, if a party did not adduce any evidence in rebuttal, then adverse inference should drawn against the party for not rebutting the evidence.
We are fortified by a decision of the Hon’ble High Court of Jammu & Kashmir in the matter of Fiat Insia Pvt. Ltd. Versus Dr. Zahid Hussain Gillar and others reported in 2003 CTJ 953 (CP) wherein the Hon’ble High Court held that “it is well settled that where the averments made in the complaint are un-rebutted, the presumption is that the averments are true and correct”.
Keeping in view the above facts and referred case laws, which are applicable on the facts and circumstances of the case, we have come to the conclusion that complaint is tenable. We find that the Opposite Party No-2 the manufacturer is deficient in service and committed unfair trade practice in this case for which the complainant is entitled relief. Hence it is ordered that :-
ORDER
The Opposite Party -2 is liable is directed to refund Rs. 14,700/- the cost of the Fridge to the complainant and he is further directed to pay Rs. 10,000/-( Rupees Ten thousand) towards compensation which includes the litigation expenses to the complainant for within 30 days from the date of receipt of a copy of this order, in default, the Opposite Party is liable to pay Ra. 100/- per day of default till its realization. The complainant is directed to hand over the defective fridge to the OP No-2 on receipt of awarded amount forthwith.
Let copies be supplied to the parties as per rules.
Pronounced in the open forum on this 28th August, 2015.
