KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIURVANANTHAPURAM
FIRST APPEAL 660/2010
JUDGMENT DATED: 29..9..2011
PRESENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
SRI.S.CHANDRAMOHAN NAIR : MEMBER
M/s Bannari Infoteh Pvt.Ltd., : APPELLANT
252, Mettupalayam Road,
Coimbatore, Tamil Nadu.
(By Adv.S.Reghukumar)
Vs.
1. Sashidhara Rai, : RESPONDENTS
S/o Pushpavathi Rai,
Krishna Nilayam, Edanad.P.O.,
Kumbala, Kasaaragod District.
(By Adv.S.Ajith, counsel for R1)
2. M/s Global Trade Link, Shop No.2,
Muncipal Bus Stand, Kanhangad,
Kasaragod District.
JUDGMENT
SRI.S.CHANDRAMOHAN NAIR : MEMBER
It is aggrieved by the directions contained in the order dated 11.10.10 of CDRF, Kasargod in CC.28/08 that the 1st opposite party in the above said complaint has come up in appeal calling for the interference of this Commission as to the sustainability of the order of the Forum below. By the impugned order the appellant is under directions to refund to the complainant a sum of Rs.14000/- being the purchase cost of the RSL with cost of Rs.3000/- within one month from the date of receipt of the order failing which interest at the rate of 12% per annum from the date of complaint till payment is also liable to be paid to the complainant.
2. The complainant had approached the Forum stating that he had purchased a road speed limiter from the 2nd opposite party which was manufactured by the 1st opposite party and that it was fitted in the stage carriage vehicle owned by him and it became defective due to manufacturing defect. It was also his case that even though he had sent a lawyer notice and even though the 1st opposite party had accepted the same, the RSL was not replaced by the opposite parties. The complainant had alleged that the RTO, Kasargod checked his vehicle and he was imposed fine for having a defective speed governor in his stage carriage vehicle and that he was forced to keep the vehicle garaged and that he had sustained loss at the rate of Rs.2000/- per day. Claiming refund of the value of the speed limiter and also compensation of one lakh along with costs the complaint was filed praying for directions to the opposite parties to pay the above amounts to the complainant.
3. The 1st opposite party denied the allegations of the complainant by filing version. It was submitted that the speed limiter was manufactured and sold under highest standard of automobile engineering and that there was no defect to the RSL purchased by the complainant. It was also submitted that till 20.11.07 there was no complaint raised by the complainant. 1st opposite party submitted that the complaint was a frivolous one and there was no deficiency or unfair trade practice committed by the 1st opposite party.
4. The 2nd opposite party remained absent in the proceedings as the notices sent to the 2nd opposite party was returned undelivered with the endorsement ‘left’ and it is seen that the complainant has endorsed that he is not seeking any relief from the 2nd opposite party.
5. The evidence consisted of the oral testimony of the complainant as PW1 and Exts.A1 to A7. On the side of the opposite parties an employee working in the 1st opposite party firm was examined as DW1 and Ext.B1was marked. X1 is the laboratory analysis of the speed limiter device.
6. Heard the counsel for the appellant and the respondent/ complainant.
7. The learned counsel for the appellant vehemently argued before us that the order of the Forum below cannot be sustained as it is passed without any evidence on record to show that the RSL suffered from any manufacturing defect. It is also his case that the Forum below has not appreciated the facts and circumstances in the correct perspective. It is further submitted by the learned counsel that the Forum has not considered the merits of the case and that Ext.B1 was not atall considered by the forum below during the process of adjudication of the complaint. The learned counsel has advanced the further contention that though Ext.B2 was also marked it was not atall considered by the Forum below. Thus canvassing for the position that there was no deficiency or unfair trade practice on the part of the opposite parties, the learned counsel argued for the dismissal of the complaint with compensatory costs.
8. On the otherhand the findings and conclusions of the Forum below were supported by learned counsel who appeared for the complainant/respondent. It is his very case that the instrument was defective from the very date of installation and that Ext.B1 was properly appreciated by the Forum below and that Forum below has found that opposite parties were negligent and deficient in producing the correct electronic diagram of the RSL for verification. The learned counsel argued that the appeal is liable to be dismissed with compensatory costs..
8. On hearing the learned counsel for the appellant, 1st respondent/complainant and also on perusing the records we find that it is the admitted case of both parties that the complainant had purchased the road speed limiter on 19.1.07 for a sum of Rs.14000/- as is evident from Ext.A7. Complainant would say that the device was defective from the very beginning and he had informed the opposite parties regarding the manufacturing defect of the devise . It is also his case that the vehicle was checked by the RTO, Kasargod on 1..11.07 and that he was imposed fine for non operation of the speed governor and had to garage the vehicle from 1.11.07 till 6.2.08 on which date he had installed a new speed governor by removing the old one where by he suffered loss to the tune of Rs.2000/- per day from 1.11.07. The complainant would also say that he has sent a lawyer notice for which also the opposite parties did not respond and also that the 2nd opposite party had closed down the shop. But on a perusal of the entire records we find that the lawyer notice was sent on 20.11.07 only(Ext.A4). We find that the complainant himself has stated that the RTO had inspected the vehicle on1.11.07 and he was fined for having a defective speed governor. Though it is alleged that he was fined for having a defective speed governor nothing is on record to show that he was imposed fine or that there was on inspection by the RTO on 1.11.07. Evenif it is accepted that the vehicle was inspected on 1.11.07 it is found that the lawyer notice was issued subsequent to the inspection which would telllupon the complainant that the notice was issued for circumventing the situation of having a defective speed governor in the vehicle at the time of inspection. The complainant has also not produced any documents to show that the speed governor sold by the 2nd opposite party was defective. Even in Ext.X1 dated 22.9.09 they have not reported that the RSL was defective. It is only stated that they could not check the device as they were lacking the expertise. It is further found that the complainant has not taken any steps to get the RSL checked from any other source and to get a report that the RSL was defective. It is also found that the RSL was purchased on 19.1.07 and the lawyer notice was issued only on 20.11.07 and that too after the alleged inspection by the RTO, Kasargod on 1.11.07. It is to be noted that the complainant has not proved his case that the device had manufacturing defect especially when it is found that the device had the fitness certificate issued by the ARAI as is evident from Ext.B1. In the said circumstances we are not inclined to uphold the findings and conclusions of the Forum below and we are inclined only to allow the appeal.
In the result the appeal is allowed. The order dated 11.10.10 of CDRF, Kasargod in CC.28/08 is set aside. In the facts and circumstances of the present appeal the parties are directed to suffer their respective costs.
S.CHANDRAMOHAN NAIR : MEMBER
JUSTICE K.R.UDAYABHANU : PRESIDENT
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