SRI.R. VIJAYAKUMAR, MEMBER.

The complaint is filed for realization of Rs.22,000/-  including price of the Refrigerator Rs.10,000/- repairing charges  received by the 1^st opp.party Rs.2000/- and compensation Rs.10,000/-

          Briefly stated facts of the complaint is that, as advised by the 2^nd opp.party on 24.6.09  the complainant entrusted the 1^st opp.party  for servicing and painting  of a fridge .   The Fridge was returned to the complainant on 17.7.09 after  painting  works.  On examination, some holes were found  in the inner lower part of the fridge.  On enquiry it was explained by the 1^st  opp.party that the damage was happened during the painting works and offered her that it can be rectified on payment of charges Rs.5000/-.   The complainant had taken the stand point that the complainant is not responsible for the default committed by the opp.parties.   The opp.party demanded Rs.2000/- but the complainant paid Rs.1000/-.  After accepting this amount, the opp.party returned with the Fridge , but the Fridge was not given back to the complainant yet.  The opp.party received Rs.1000/- each as  advance on 27.6.09 and also when he had taken the Fridge for  2^nd time for repairing.

          The complainant demanded repaired and defect  cured Fridge or otherwise replacement of the fridge with a new one.  But the opp.parties tried to evade from their   liability.  The complainant sustained financial loss of Rs.10,000/-  due to the non repayment of the fridge and Rs.2000/- which was paid as charges for the painting and repairing works.   The act of opp.parties amounts to deficiency in service and it caused mental pain and agony to the complainant.  Hence the complaint.

          The notice sent to the 1^st opp.party  was returned stating that the addressee is out of India.  Since the 1^st opp.party is working in Gulf countries, the complainant filed an IA seeking  permission for publishing an advertisement in Gulf Edition of Kerala Kaumudi daily newspaper.   The  Forum allowed the application and the advertisement was published in Kerala Kaumudi, Gulf Edition Paper publication was produced before the forum.   Even then the 1^st opp.party was not present or represented.  Hence set exparte.

          The 2^nd opp.party filed version contenting the allegations raised by the complainant in the complaint.   The 2^nd opp.party is not an agent or an employer of the 1^st opp.party.  The  2^nd opp.party is not having any knowledge about the 1^st opp.party and had no Knowledge about the Fridge owned by the complainant.    The 2^nd opp.party is not in practice of authorizing any one  for repairing or painting works..   The complainant  had not purchased any  home appliance from the 2^nd  opp.party.   The only fact is that the complainant visited the show room of 2^nd opp.party about two years back and enquired the quality and price of home appliance and the 2^nd opp.party  issued a visiting card  on her request.  There is no contact between  the complainant and the 2^nd opp.party and the complainant never contacted with the 2^nd opp.party.   The complainant is not a consumer.  There is no cause of action.   Colluding with the 1^st opp.party, the complainant filed  the complaint.  Hence the complaint against the 2^nd opp.party is liable to be dismissed.

          The complainant was examined as PW.1 Ext P1 tmarked.

No oral or documentary evidence adducedfrom the side of opp.parties

Heard both sides.

The points that would arise for consideration are:

1.     Whether there is any deficiency in service from the part of opp.parties?

2.     Compensation and cost.

Points 1 and 2

          The 2^nd opp.party totally denied all the allegations raised by the complainant except that the 2^nd opp.party had issued a visiting card on request, while the complainant visited the showroom  to enquire the  price and quality of the house hold articles.

          According to the complainant,  the visiting card was  issued by the 2^nd opp.party   as and when she approached the 2^nd opp.party institution on 24.6.06 for enquiring about the painting work of fridge.  In her  oral testimony also, she had made clear  statements in accordance with her case.  Nothing was brought out  in cross-exam to discard the evidence adduced by the complainant.  PW.2 also deposed clearly that she had accompanied the complainant to the 2^nd opp.party shop on 24.6.09 and that the 2^nd opp.party agreed to sent a person for repairing the fridge.  A visiting card also was given by the 2^nd opp.party.

          The learned counsel for the complainant argued that the  statement of the 2^nd opp.party in their version that the visiting card was given to the complainant two years ago when the complainant approached his shop shows that 2^nd opp.party is the unbelievable man.   The 2^nd opp.party is situated in a   place and having high business.   So normally no reason was to remember the complainant who alleged to had visited his shop 2 years ago.

          As argued by the learned counsel for the complainant we are also of the opinion that  there  is no chance of  remembering a person who had visited the shop for the enquiry of price and quality of home appliances and the issuance of a visiting card.   The statement of the opp.party is unbelievable as it lacks bonafides.

          The learned counsel for the complainant further argued that the 2^nd opp.party is having no consistent case and he is  a man of  un worthiness.  He had pointed out that in the objection, the 2^nd opp.party stated that the visiting card  was issued by him on  request  while the complainant visited his shop and as such there is no consumer relationship between the complainant and 2^nd opp.party.  But in cross examination the learned counsel for the 2^nd opp.party put in the question that “Ext.P1  \n§Ä¡v  Jacob and company  bn   \n¶pw Xcp-Itbm Fridge repair work  \pvjmPnsb tF¸n-¡p-hm³ ]d-bp-Itbm sNbvXn«nà ?”

        On perusal of the complaint and on the basis of the oral testimony of PW.1 and PW.2 we also find that the complainant is having a genuine case.  On the other hand  there is no  bonafides and consistency in the 2^nd opp.party’s  case.   As argued by the learned counsel for the complainant, the 2^nd opp.party admitted that he had given a visiting card to the complainant when she had visited the shop of the 2^nd opp.party.  But in cross examination the learned counsel for 2^nd opp.party put  question regarding the aspect that 2^nd opp.party had not given any visiting card to the complainant, which was against their own version.  It is obvious from these facts that,  the 2^nd opp.party is not having  bonafides and consistency in their case.

          The 2^nd opp.party did not care to adduce oral or documentary evidence./   The person who is competent to depose before the forum to prove his ignorance about the entrustment of fridge to the 1^st opp.party was not examined.

          Considering all the circumstances and facts before us  we are of the opinion that the complainant entrusted the fridge the  1^st opp.party for painting on the basis of the direction given by  the 2^nd opp.party.   We find that there is deficiency  in service  from the part of opp.parties.   The points found accordingly.  The complainant should be  reasonably compensated.  As the complainant herself admitted that the Fridge  is having 5 years old the value of the fridge can be calculated only after deducting  depreciation..

In the result, the complaint is allowed in part.   The opp.parties are directed  to pay the complainant Rs.7500/- as the price of the fridge and  to return Rs.2000/-  which was received from the  complainant as repairing charges.  The opp.parties are further directed to pay Rs.3000/- as compensation for mental agony and sufferings and Rs.1500/- as cost.

          The order is to be complied with within one month from the date of receipt of the order.

          Dated this the     day of December, 2012.

I N D E X

List of witnesses for the complainant

PW.1. –Suprabha

List of documents for the complainant

P1. – Visiting card of opp.party