KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.113/2017

JUDGEMENT DATED: 27.02.2022

(Against the Order in C.C.No.110/2015 of CDRF, Kozhikkod)

PRESENT:

APPELLANT:

(by Adv. R. Suja Madhav)

Vs.

RESPONDENT:

JUDGEMENT

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

          The appellants are the opposite parties in C.C.No.110/2015 of the Consumer Disputes Redressal Forum, Kozhikkode (hereinafter referred to as the District Forum for short).  The respondent herein is the complainant before the District Forum.  As per the order appealed against, the appellants have been directed to pay back Rs.1,97,325/-(Rupees One Lakh Ninety Seven Thousand Three Hundred and Twenty Five), being the purchase price of a machinery purchased by the respondent from the appellants.  In addition, an amount of Rs.25,000/-(Rupees Twenty Five Thousand has been awarded as costs of the proceedings to the respondent.

          2.       The case of the respondent/complainant is that, he is an applam maker, engaged in the profession for more than twenty years.  For developing his business, he had purchased an applam making machine from the 1^st appellant on 09.8.2014 for an amount of Rs.1,97,325/-(Rupees One Lakh Ninety Seven Thousand Three Hundred and Twenty Five).  He paid Rs.1,00,000/-(Rupees One Lakh) as advance in four equal instalments through State Bank of India, Kozhikkode on 12.06.2014, 13.06.2014 and 14.07.2014 respectively.  The balance amount of Rs.97,325/-(Rupees Ninety Seven Thousand Three Hundred and Twenty Five) was paid on 09.07.2014.  At the time of purchase, the 2^nd appellant promised that two units of dryers and guarantee card of the machine for two years would be sent to him within two weeks.  The opposite party also promised that minor complaints would be repaired by them and if any major complaints were to arise within the warranty period, they would replace the machinery.  But, contrary to their promise, only one dryer unit without a warranty card was supplied by the appellants.

          3.       The respondent started using the machine from 20.08.2014.  The machine functioned smoothly for about one month.  Thereafter defects started surfacing.  Its gear box became defective and it was not working satisfactorily as promised by the appellants.

          4.       Though the respondent contacted the opposite parties, over telephone many times there was no response.  Finally he approached them personally.  Thereupon a service personnel came and inspected the machine.  After ascertaining the defects he promised that the machine itself would be replaced as early as possible.  But the machinery was not replaced as assured.  The respondent then issued notices through his lawyer demanding replacement of the machinery and compensation for his loss and difficulties.  Though two notices were issued, they did not comply with the demands.  Therefore, he filed the complaint before the District Commission alleging unfair trade practice and deficiency in service against the appellants, claiming return of the purchase price paid by him and also an amount of Rs.2,00,000/-(Rupees Two Lakhs) as compensation for his financial loss, mental pain and sufferings, apart from the costs of the proceedings.

5.       The District Forum admitted the complaint and issued notice to the appellants.  The notices were returned with the endorsement, “intimation given”.  Thus, the appellants did not accept the notice issued to them.  Nor did they appear before the District Commission or contest the complaint.  Therefore, they were set exparte.

          6.       The complainant filed affidavit and Exhibits A1 to A8 documents were marked on his side.  Exhibits A1 to A5, copies of the payment receipts showed that a total amount of Rs.1,97,325/-(Rupees One Lakh Ninety Seven Thousand Three Hundred and Twenty Five) had been paid by him to the appellants.  Exhibit A6 is the copy of a lawyer’s notice issued to them.  On an appreciation of the evidence on record, the District Commission came to the conclusion that the acts of the appellants constituted unfair trade practice for which, they have been held liable to compensate the respondent.  It is aggrieved by the said order that this appeal is filed. 

          7.       According to the counsel for the appellants in this case, no notice was actually served on the appellants.  They came to know about the order passed against them only when a warrant of arrest was served on them in the Execution Proceedings initiated by the appellants.  Therefore, it is contended that the order under appeal may be set aside and an opportunity may be given to the appellants to place and prove their case.

          8.       Heard.  We have considered the contentions advanced before us anxiously.  Though it is vehemently contended that no notice in the case was served on the appellants, a perusal of the Lower Court Records shows that notices have been issued to the appellants in their postal address.  Their addresses shown in this appeal as well as on the postal envelopes, in which notices were despatched to them by the District Commission are the same.  The postal endorsement shows that intimation of the postal article was given to them as mandated.  However, they did not respond or accept the notice.  It was only in the said circumstances that the District Commission has proceeded to set them exparte and to consider the matter on the merits.  The said procedure is in compliance with the mandate of the Section 13(2) of the Consumer Protection Act, 1986.  Therefore, we do not find any infirmity in the procedure adopted by the District Commission.

          9.       In this case, the respondent has proved his case that the machinery purchased by him had broken down and was not working.  The breakdown had occurred after one month of the purchase of the machine.  Therefore, the appellants were duty-bound to take back the machinery and to return the purchase price paid by the respondent.  Exhibits A1 to A5 receipts prove the claim of the respondent that he had paid the total purchase price of Rs.1,97,325/-(Rupees One Lakh Ninety Seven Thousand Three Hundred and Twenty Five) to the appellants.  What the District Commission has ordered is only for return of the said amount along with Rs.2,500/-(Rupees Two Thousand Five Hundred).  We find that, the order of the District Commission is only reasonable and cannot be found fault with on any count. 

          10.     For the above reasons, this appeal fails and is accordingly dismissed with costs of Rs.10,000/-(Rupees Ten Thousand).

          11.     The respondents shall be entitled to claim the amount of Rs.25,000/-(Rupees Twenty Five Thousand) deposited before this Commission at the time of filing this appeal.  Out of the said amount Rs.10,000/-(Rupees Ten Thousand) shall be adjusted towards the costs ordered as above and the balance amount shall be adjusted towards the amount ordered to be paid by the District Commission as per the order under appeal.

SL