SRI S. COARI, MEMBER.

No. 3/31.08.2010.

Appellant is present through Ld. Advocate Mr. Naba Pallab Roy.  A/D Card in respect of sole Respondent has been received and sole Respondent appears in person.  S/R is thus complete.  By consent of parties we take up the hearing of the appeal.

The present appeal has been directed against the order and judgement dated 17.05.2010 passed by D.C.D.R.F., Malda in Malda D.F. Original Case No. 06/2010 wherein the Ld. District Forum allowed the petition of complaint in part on contest against the O.P. No. 1 and ex parte against O.P. Nos. 2 & 3 thereby passing an award of Rs. 749/- and Rs.3,000/- against the O.Ps.

The Complainant – Respondent’s case before the District Forum in brief was that the Complainant purchased a pair of shoes for valuable consideration of Rs.749/- from the shop of O.P. No. 1 on 02.11.2009.  Subsequently as the shoes found to be defective the Complainant approached the O.P. No. 1 for proper redressal but without any result.  Being aggrieved and dissatisfied with such behaviour on the part of the O.P. No. 1, Complainant preferred the petition of complaint thereby praying for an award of Rs.6,749/- which includes value of shoes so purchased i.e. Rs.749/-, litigation cost of Rs.2,500/- and Rs.3,500/- for mental agony and harassment.

The O.P. No. 1 contested the case by filing Written Version thereby denying all the materials averment of petition contending inter alia that the case was not maintainable.  The shoes were manufactured after observing all the manufacturing guidelines and other formalities.  The Complainant did not used the shoes as per users usual norms and guidelines and that the petition of complaint was liable to be dismissed.  The Ld. District Forum while disposing the case has observed that the Complainant was successful in substantiating its case as made out in the petition of complaint.  There was actual difference between the shoes and that the plea taken by the O.P. No. 1 being not maintainable the Complainant was entitled to the reliefs and accordingly disposed of the case as mentioned above.

DECISION WITH REASONS :

At the time of hearing it has been submitted by Ld. Advocate for the O.P. No. 1 that in this case the Ld. District Forum has failed to appreciate the actual state of affairs and has arrived at a wrong and improper decision which is liable to be set aside.  According to the Ld. Advocate for the Appellant it is incombent upon the Complainant – Respondent to prove that there was manufacturing defect in the shoes so purchased by him.  In the absence of any proof of manufacturing defect it was not just and proper on the part of the Ld. District Forum to allow the petition of complaint in favour of the Complainant.   It has further been submitted on behalf of the Appellant that in this case there was honest attempt on the part of the O.P. No. 1 to replace the shoes in favour of the Complainant but the Complainant was always bent upon to have the money refunded which is not permissible under the usual business practice.  While concluding his submission the Ld. Advocate for the Appellant has urged before us that the Ld. District Forum has considered the case of the parties from a oblique angle which has resulted a total miscarriage of justice and under no circumstance there was any reason to allow the petition of complaint as it has been done by the Ld. District Forum and that considering all these aspects the impugned judgement is not at all sustainable under the law and the same is liable to be set aside.

We have duly considered the submission so put forward on behalf of the Appellant and have gone through the materials on record including impugned judgement and find in this case that the Complainant has put forward a case to the effect that immediate after purchase of shoes he found some material defect in it and requested O.P. No. 1 to compensate him in terms of money value which has not been done by the O.P. No. 1.  Hence the petition of complaint was filed.  The Appellant – O.P. No. 1 on the other hand has tried to put a case to the effect that unless and until the fact of manufacturing defect is proved there is no scope of considering the petition of complaint and that in normal business procedure there is also no scope of reimbursing the Complainant in terms of money value and at best the shoes could have been replaced and under these circumstances the petition of complaint was not maintainable.

On careful perusal of the impugned judgement we find that before the LD. District Forum the purchased shoes in question were produced and on physical estimation it transpired that there was marked difference between the two shoes which prompted the Ld. District Forum to form an adverse view against the O.P. No. 1 in this case.  It is pertinent to mention that the Proprietor, Elite Shoe Company though were served with the notice but did not contest the petition of complaint.  On further scrutiny of the materials on record we take note of the fact that though the Appellant has taken a plea on the point of manufacturing defect but unfortunately the same has not been adopted in the Written Version.  In this connection we also find that Ld. District Forum has properly appreciated this aspect of the case.  When the O.P. has not taken a plea in the Written Version on the point of manufacturing defect we are in affirmative with the finding of the Ld. District Forum that the O.P. No. 1 – Appellant is not permitted to raise the said plea before Consumer Court.  On appreciating the respective parties’ cases we are quite satisfied that there was deficiency of service at the instance of the O.P. No. 1 – Appellant and on this score the verdict of Ld. District Forum appears to be quite just and proper.  In view of the foregoing discussion we find no merit in the present appeal and the same is liable to be dismissed.  In the result appeal fails.

Hence it is ORDERED that the appeal stands dismissed on contest without any order as to cost.  The impugned judgement stands confirmed.  O.P. No. 1 – Appellant is directed to comply with the direction of the Ld. District Forum within 45 days from the date of this order failing which the decretal amount will carry interest @ 9% per annum till the same is realized through legal procedure.