(Per Mr.P.N.Kashalkar, Hon’ble Presiding Judicial Member)
(1) This appeal is lying unattended from 2004. The appellant also has not bothered to take circulation for getting first order passed. Therefore, on 11/08/2011, this matter was taken from sine-die list and placed before us for disposal. Intimation of that date was displayed on notice board and published on internet board of the Commission. On 11/08/2011, on finding that appellant as well as the respondent were absent, we directed office to issue notice informing next date of hearing i.e. 11/10/2011 to both the parties. Accordingly, on 01/10/2011, office issued notices to the parties. On 11/10/2011 i.e. today, the appellant as well as the respondent are absent. Therefore, we are deciding the matter on merit.
(2) This is an appeal filed by the original opponent against the order dated 20/07/2004 passed by District Forum, Pune in Consumer Complaint No.120/2002. By allowing the complainant, the forum below directed Sourabh Traders & Co. to replace the pipes of M/s.Prince Company from the field of the complainant by with the 1800 meters PVC pipes of M/s.Finolex Company as per the quotation dated 10/09/2000. Failing which, the opponent shall pay `1,25,000/- as mentioned in the quotation to the complainant. Aggrieved by this order, the original opponent, M/s.Sourabh Traders & Co. filed this appeal. There is a delay of two months in filing the appeal. According to the opponent, the complainant himself informed about the decision on 01/11/2004 and accordingly the appellant applied for certified copies on 06/11/2004 and same were received on 24/11/2004. From that day, he has filed this appeal within limitation. If the date of the order is taken into account, the appeal is filed belatedly and for that purpose, he has filed delay condonation application. Since, nobody contested the Misc.Application No. 3084/04; we allow the same without cost and condone the delay.
(3) We perused the impugned order. We are finding that the complainant had taken quotation from appellant M/s.Saurabh Traders & Co., at Indapur, Tal.Indapur, Dist.Pune. He took quotation for taking bank loan for installation of PVC Rigid pipes of Finolex Company admeasuring 1800 mtrs.in his field. The quotation was given. According to the complainant, the bank had sanctioned and paid amount of `71,000/- directly to the appellant and remaining amount of `28,000/- was paid by the complainant in cash. He pleaded that even after accepting the amount, the appellant herein/original opponent provided the pipes of M/s.Prince Company and not of Finolex Company. When those pipes were laid down in the field, they were found to be sub-standard and they were broken now and then. He, therefore, approached M/s.Saurabh Traders & Co., appellant herein and requested to replace the pipe in his field. The opponent/appellant did not replace the same. As such the complainant/respondent filed consumer complaint and claimed damages from M/s.Saurabh Traders & Co. In the course of hearing, court commissioner was appointed by the district forum. The court commissioner went to the field of the complainant and inspected those pipes which were found to be sub-standard and report was submitted by court commissioner, Anil Kumbhare to the district forum. The court commissioner specifically reported in the said report that the pipes laid down in the field of the complainant were totally in non-working condition. The forum below, therefore, recorded its finding that M/s.Saurabh Traders & Co. for guilty of deficiency in service and directed the opponent to replace the existing pipes in the field of the complainant at their own cost. Aggrieved by this order, M/s.Saurabh Traders & Co. filed this appeal.
(4) According to the appeal memo, the respondent/complainant purchased PVC rigid pipes of Finolex company admeasuring 1800 mtrs. By taking quotations for loan of Pune District Central Co-op. Bank Ltd., he made payment to the appellant and remaining price was paid by the complainant. It is pleaded by the appellant that he had supplied Finolex pipes, but the respondent purchased Prince Company’s pipes which were of lesser quality and he played fraud in district forum by pleading that the appellant supplied pipes of Prince Company in place of Finolex pipes. From the documents on the record, we are finding that Saurabh Traders has not sold PVC pipes to the complainant. On the basis of quotation, it cannot be said that Saurabh Traders & Co. sold Finolex pipes to the complainant. What is on record is invoice of Prince Pipes & Fittings Pvt.Ltd. and that these sold pipes worth 45,082.47 by invoice dated 10/11/2000. Another letter which is at page 33 of appeal memo shows that M/s.Prince Pipes & Fittings Pvt.Ltd., Marol MIDC, Andheri (E), Mumbai 400 093 has written letter to Dinkar Namdeo Khartode, Mukkam Pilewadi, Post Khalas, Tal.Indapur, Dist.Pune for demanding payment of `10,81,205/-, which was still outstanding and payable by Dinkar Khartode (Institutional Sales). Dinkar Khartode is procuring large number of pipes for sale in Villages and therefore he had installed Prince Company’s PVC in his field, through he had taken quotation from M/s.Saurabh Traders & Co. of Finolex PVC pipes. To procure loan he might have taken quotation of Finolex pipes, but while installing the pipes in field, he seems to have taken pipes of Prince Pipes now & then, he filed consumer complaint against M/s.Saurabh Traders & Co. alleging that he deceived him by supplying Prince company’s pipes instead of Finolex. The forum below allowed the complaint on finding that M/s.Saurabh Traders & Co.had not contested the matter. They remained absent despite of service. Even that does not mean that the case of the complainant is to be taken in toto as truthful of reliable and award should be passed against the person who is absent. It is the duty of the forum to scan the documents on record and then to pass award. Whether the goods of the opponent were defective or whether the pipes supplied to the complainant were of Finolex make or Prince Company make, these facts were not established at all. What was found in the field of the respondent were PVC pipes which were purchased by the complainant from Andheri firm. In the circumstances, award against M/s.Saurabh Traders & Co.is bad in law. Supply of defective pipes of Prince make instead of Finolex make was not at all established by the complainant. What is established is that Dinkar Khartode was purchasing large number of Prince pipes for selling in the nearby villages and he owed more than `10 lacs to the Prince Pipes & Fittings Pvt.Ltd. So, it appears by taking advantage of the fact that he was having supply of Prince pipes, he procured order from the district forum. He took quotation of Finolex pipes, but he was supplied Prince Pipes. In fact, he had purchased Prince pipes for him, as per the page No.32 & 33 of the appeal compilation. We, therefore, are inclined to allow the appeal. Hence, the order.
ORDER
(1) Appeal is allowed.
(2) Impugned order in favour of the respondent/original complainant in Consumer Complaint No.120/2002 is quashed and set aside.
(3) Consumer Complaint No.120/2002 is dismissed.
(4) No order as to costs.
(5) Inform the parties accordingly.
Pronounced on 11th October, 2011.
