KERALA STATE ONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM

APPEAL. 116/2006

JUDGMENT DATED: 18.8.2010

PRESENT

JUSTICE SRI.K.R.UDAYABHANU         : PRESIDENT

SRI.M.K.ABDULLA SONA             : MEMBER

Nimmy Lonappan Chackola,           : APPELLLANT

Proprietress,

Chackola Decorette,

Dharmodayam building,

XI/2519.

Shanmugham Road, Kochi-31.

(By Adv. B.Jayasanker)

                Vs.

Saman C George,                           : RESPONDENT

H.No.49/806-B, Cheruvathoor,

Elamakkara.P.O.

JUDGMENT

SRI.M.K.ABDULLA SONA             : MEMBER

This appeal prefers from the order passed by CDRF, Ernakulam in OP.573/04 dated 12.9.05.  The appellant is the opposite party who prefers this appeal from the above impugned order.  The respondent is the complainant.  This complaint arised from a dispute in connection with the purchase of upholstery cloth for an amount of Rs.3778/-  from the opposite party on 22.6.04.  Hence spending Rs.6300/- by the complainant who is done the upholstery works on the furniture by this cloth. The cloth purchased from the opposite party got decolourised due to fall of water  on the furniture on which the cloth was applied.  The decolourisation occurred due to the manufacturing defect and that fact was immediately brought to the notice of the opposite party.  The opposite party at the first instance agreed to reimburse the amount spent for upholstery work also.  But later, the opposite party withdrew from the settlement.  Hence this complaint.

2.The opposite party contended in the version that purchase of upholstery cloth by the complainant is true and the actual price was Rs.3549/- he also contended that he is only dealer not a manufacturer.  So he is not liable for the payment of compensation or the manufacturing defect of the material.  He also denied that he was given any assurance to the complainant for the refund of the expenses of upholstery cloth as well as the amount spent for doing of upholstery works.  The complainant did not return material alleged to be defective.  The opposite party was always willing to repay the price of the material on return of the same.    There was no deficiency in service on his part hence complaint is liable to be dismissed.

3. The evidence adduced consisted of Ext.A1 to A6 and oral evidence of the complainant(examined as PW1).  The staff of the opposite party filed a proof affidavit and he was examined as DW1 and document was marked as Ext.B1.  After hearing both sides  and perused the entire evidence adduced by both parties before the Forum below.  The Forum below taken a view that forum below is not having any reason to disbelieve the case of the complainant.  Then they allowed the complaint and directed the opposite party to refund price of the cloth as per Ext.A1(Rs.3778/- and Rs.6300/- for upholstery works as per Ext.A2 to the complainant and pay Rs.1000/- for cost of this proceedings.

4. The appellant prefers this appeal from this impugned order.  On this day this appeal came before this Commission for final hearing the counsel for the appellant/opposite party is present and there is no representation for the respondent complainant.  The learned counsel appear for the appellant vehemently argued on grounds of appeal memorandum that the order passed by the Forum below is not accordance with the provisions of law and law and evidence and it is liable to be setaside.  The counsel for the appellant submitted that the complainant has no where either in the pleading or in the deposition admitted that the cloth supplied to the complainant is defective and the District Forum is erred and exceeded in its jurisdiction in presuming manufacturing defect especially when section 13(1)(c) of the Consumer Protection Act mandates that where the complainant alleges defects in the goods which can not be determined without proper analysis or  test of the goods, the District Forum shall obtain a sample of the goods from the complainant and  sent to the sample to the appropriate laboratory to ascertain whether such goods suffer from any defect as alleged.  In the absence of comply the mandatory procedure define the Forum below did not comply by the Forum below in this case he also submitted that Forum below has ordered the complainant  to pay   an amount, which is more than what was actually paid by him  for the goods alleged to be defective.  The Forum has erred in ordering refund of the costs of the Kora, which was actually used by the complainant which he had no  complaint.

5. This Commission heard in detail the appellant and perused the available evidence from the case records and reached in a conclusion that the order passed by the Forum below is accordance with provisions of law and evidence.  There is no reason we are seeing to interfere in the order passed by the Forum  below except the result  portion of the order we are not appreciating the submission of the counsel for the appellant regarding the non comply of Section 13(1) 13(c ) of the Consumer Protection Act by the Forum below. In this case the opposite party strongly contested the case before the Forum below.  He  is having the liberty to approach to the Forum below with this same prayer.  It is an alternative to the appellant/ opposite party also.  In other words in an upholstery cloth and its value is only Rs.3778/- comply this Section is not at all practicable  eventhough the opposite party denied the defect of the court in the appeal memorandum also the appellant is having a case that the manufacturer is only liable for the compensation for the manufacturing defect of the cloth.  But anyway in this case we are not seeing any apparent error in the order passed by the Forum below and we have it seeing no reason also to disbelieve the allegation of the complainant. Otherwise the appellant/opposite party disprove the allegations alleged by the complainant in the complaint.  The absence of the complainant before this Commission is not at all a ground to allow the appeal.  We are having a consumer friendly  attitude towards the complainant.  This Commission established accordance with provisions of the Consumer Protection Act and it is a most socially benefited legislation.

          In the result this appeal is allowed in part.  The opposite party is directed to refund the price of the cloth as per Ext.A1 Rs.3778/- to the complainant along with a cost of Rs.250/- also to the complainant within one month from the receipt of the copy of this order.                                   The refund of the price of the cloth by the appellant/opposite party  is admitted by the counsel for the appellant before this Commission at the time of hearing.  We set aside the compensation of the upholstery  works as per Ext.A2 Rs.6300/- and we also set aside Rs.750/- from the cost ordered by the  Forum below   as Rs.1000/-.  The opposite party is directed to refund the price of the cloth Rs.3778/- along with Rs.250/- as cost of the proceedings of the complainant within one month.  The result portion of the order modified accordingly.  Both parties are directed to suffer their respective costs.  The points of the appeal answered accordingly.

          SRI.M.K.ABDULLA SONA             : MEMBER

          JUSTICE SRI.K.R.UDAYABHANU         : PRESIDENT

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