Date of Filing : 21.12.2011
Date of Order : 16.04.2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR
Dated 16th APRIL 2012
PRESENT
Sri. H.V. RAMACHANDRA RAO, B.Sc., BL, ……. PRESIDENT
Sri. T.NAGARAJA, B.Sc., LLB. …….. MEMBER
Smt. K.G.SHANTALA, B.A., LLB. …….. MEMBER
CC No. 230 / 2011
Smt. Nyanamma,
W/o. Sri. Venataronappa,
R/at: Abbenahalli Village,
Malur Taluk,
Kolar District.
(By Sri. B. Sadasivachari, Adv.) ……. Complainant
V/s.
The Proprietor,
M/s. B.R. Muniyappa Sons,
B.M.C. Orchade, M.G. Road,
Kolar.
(By Sri. D.S. Ramagopal, Adv.) …… Opposite Party
ORDER
By Sri. H.V. RAMACHANDRA RAO, PRESIDENT
The brief antecedents that lead to the filing of the Complainant made u/s. 12 of the C.P. Act seeking direction to the OP to pay to the Complainant Rs.50,000/- are necessary:
On 15.05.2011 Complainant purchased Silk Saree for Rs.3,679/- from the OP. On 05.06.2011 Complainant went to the Tailor shop at Malur for stitching the blouse. While returning, due to rainfall, some portion of the said Saree came to be wet which she had kept in the cover. Thereafter, the Complainant reached the house and saw the said Saree and made it dry. She saw decolourization on some portion of the said Saree. As such, it has become useless for using / wearing. This is because of the low quality Saree that has been sold. It was brought to the notice of the OP on 11.06.2011 and demanded for replacement of the Saree or refund of money. Notice was also issued on 14.07.2011. As it has not been complied with, this Complaint is filed.
2. In brief the version of OP are:-
Complainant has purchased Saree for the amount mentioned thereon is admitted. There is no deficiency in service. Complainant’s demand for replacement of Saree and issue of notice etc. are admitted. Damage if any caused due to Vismajor or an act of God. Hence, Complaint be dismissed.
3. To substantiate their respective cases, Complainant has filed affidavit. OP has filed Memo stating that his version may be read as his evidence. Arguments were heard.
4. The points that arise for our consideration are:
(POINTS)
(A) Whether there is deficiency in service ?
(B) What order ?
5. Our findings are:
(A) Positive
(B) As per detailed order for the following reasons
REASONS
6. Reading the pleadings in conjunction with the affidavit, memo and documents on record, it is an admitted fact that the Complainant had purchased Silk Saree from the OP on 15.05.2011 for Rs.3,679/-. It is contended by the Complainant that on 05.06.2011 she took the Saree for getting stitched the blouse at Malur and while returning, rain came down and it fell on the Saree. When she came back to her place and got the wet dried, she saw decolourization of the Saree, at some portion of the Saree where the water had fallen. Hence, she requested the OP either to replace the Saree or to refund the money. OP admits Complainant requesting for replacement of Saree or refunding of amount and also issue of notice. OP contends that this is an act of God and nothing else. Saree that too Silk Saree must be guaranteed with colour and texture that has been guaranteed herein. When the Saree has decolourized, it means it is defective Saree that has been sold to the Complainant. OP should have replaced the Saree, but that has not been done.
7. On 09.04.2012 Complainant had brought the Saree before this Forum. This Forum had put the water on the Saree and saw that there was decolourization at that portion where it has put water. That means, there is defect in the Saree itself. It is a manufacturing defect. Hence, OP is bound to replace the Saree or to refund the money of the Saree whichever it deems fit, but that has not been done.
8. When the fact of decolourization was brought to the notice of OP, OP would have taken that Saree and sent it to the person who has woven the Saree or would have send it to any other place to know why there was decolourization, that has not been done. OP simply contends that it is Vismajor i.e., an act of God. Under these circumstances, it can never be an act of God as the decolourisation is not an act of God, it is a man made and hence defect in the Saree.
9. On 09.04.2012, this Forum heard the matter in full and posted the case for orders to today and dictated the order to some extent. On 10.04.2012, Counsel for the Complainant made an Application in the Open Court u/s. 13 of the C.P. Act seeking referring the Saree to the Central Silk Board Test House, Bangalore. The case is not advanced or there was hearing date on 10.04.2012 and the said application is also not supported by any affidavit. When the OP has taken specific contention that decolourization is an act of God, the question of sending the Saree to the expert does not arise. Saree is already with the Complainant which on verification was returned to the Complainant on 09.04.2012 itself. It is well settled proof of Law once the case is posted for final orders, Court has to pass the Order and it cannot be entertained any Interlocutory Application (IA) in between. Vide ILR 2004 KAR 2215 between Rabiya Bi Kassim M & The Country Wide Consumer Financial Service Ltd., wherein it is held thus:
“CIVIL PROCEDURE CODE, 1908 (5 of 1908) – ORDER 18, RULE 2 CLAUSE 4 - Application under – Reopening of the case to record evidence – Held, Once the matter has been heard and posted for judgment, nothing is required to be done by the Court except to pronounce the judgment – Interlocutory application to reopen the case and record further evidence after the matter is reserved for pronouncement of judgment, is not permissible – No application can be filed after the final arguments have been heard and the matter is posted for judgment”, since it would have amounted to contempt of Court following the Judgement of Apex Court in AIR 1963 SC 2004. Hence, IA is ordered to be filed.……..
10. Hence, the said Application has to be rejected and is rejected. Hence we hold the point accordingly and pass the following order:
ORDER
1. Complaint is allowed in part.
2. OP is directed to replace the Saree purchased by the Complainant on 15.05.2011 with defectless, brand new Saree of the sae quality & same colour witin 30 days from the date of this order.
3. If for any reason OP fails to replace the Saree within 30 days from today, then OP shall pay to the Complainant a sum of Rs.3,679/- together with interest thereon @ 12% P.A. from 15.05.2011 until payment within 30 days therefrom.
4. OP is also directed to pay Rs.2,000/- as costs of this litigation to the Complainant.
5. IA filed before this Forum on 10.04.2011 by the Complainant u/s. 13 of the C.P. Act is rejected.
6. OP is directed to hand over the Saree as ordered at (2) above to the Complainant under acknowledgement or send the amount as ordered at (3) in case OP fails to deliver the Saree and also send the amount as ordered at (4) above to the Complainant by Demand Draft through RPAD and submit to this Forum the compliance report with necessary documents within 45 days.
7. Send copy of the Order to the parties concerned free of cost.
8. Return extra sets to the parties concerned under Regulation 20(3) of Consumer Protection Regulations 2005.
(Dictated to the Stenographer, got it transcribed and corrected and pronounced in the open Forum on this the 16th day of April 2012)
T. NAGARAJA K.G.SHANTALA H.V.RAMACHANDRA RAO
Member Member President
