Sri. K. Gopalan: President<br /> This is a complain filed under Section 12 of the Consumer Protection Act for an order to direct the opposite party to supply the board as per specification in the quotation or to repay the full amount with interest @ 12% per annum from the date of this complaint and to pay a sum of Rs 5000/- as damages with cost of this proceedings.<br /> The case of the complainant in brief are as follows: The complainant accepted the quotation submitted by the opposite party for supplying of Fibre Glass Basket Ball Board with specification and paid the price of the Board Rs 24,024/-. The opposite party fixed the Board in the basket ball court. On verification it was found that the Board supplied was inferior quality and a crack also had been noticed on the Board. Further filling of the Board was done with granite, which was against the specification and stipulation . The complainant sent a lawyer notice dt. 19.8.05 to the opposite party. Opposite party sent a reply dated nil. In the reply it was stated that a crack was noticed on the Board and a new product will be replaced but nothing was said with regard to filling of granite in the Board. It was also stated that the school authorities had to collect the new Board from the opposite party’s factory. The condition in the quotation was to supply the goods at Kannur. The complainant was very much aggrieved by the action of the opposite party and suffered an estimated damages of Rs 5000/-. Hence this complaint.<br /> Persuant to the notice from this Forum, opposite party filed version denying the allegations and averments raised by the complainant. The contentions of the opposite party in brief are as follows: The complaint is not maintainable. The complaint is frivolous , vexatious and experimental in nature. The averments to the effect that the opposite party submitted quotation and that the price of the Board and that the complainant accepted the quotation and placed orders with opposite party and opposite party supplied the Board and fixed the same in the basket ball court and had been paid Rs 24,024/- to the opposite party are true. But the allegation that the Board supplied was inferior quality is not correct. Board was in good condition at the time of delivery. This opposite party sent reply to the notice of complainant and informed the complainant to collect a new Board from the factory so as to replace the earlier one. The complainant had also agreed for the same. As per the settlement complainant sent one Shaji John Master of the complainant’s institution along with some pesons and took the new Board to their institution in the month of September 2005. But so far the earlier Board was not returned by the complainant even though the opposite party repeatedly requested for the same. It is not true that there is deficiency or cheating on the part of opposite party. The allegation that the complainant aggrieved and suffered damages are also not true.The opposite party also submitted that opposite party’s company closed its production in the month of October 2005. Some of the staffs present at that time had been witnessed the entire transaction including the delivery of replaced Board. Hence prays to dismiss the complaint.<br /> On the above pleadings the following issues have been taken for consideration <br /> 1. Whether there is any deficiency in service on the part of opposite party?<br /> 2. Whether the complainant is entitled for compensation as prayed in the complaint?<br /> 3. Relief and cost.<br /> The evidence consists of oral testimony of PW1 and documentary evidence Exts. A1 to A5 marked on the side of complainant. Opposite party has neither oral nor documentary evidence.<br /> ISSUES 1 to 3:<br /> Admittedly the opposite party supplied Fiber Glass Basket Ball Board to complainant. Opposite party submitted the quotation Ext.A1 with specification on 23.12.2003. The opposite party has admitted that the complainant has paid the price of the Board, the bill amount Rs 24,500/-.The opposite party stated in the version that he had supplied the Board and fixed the same in the basket ball court.<br /> The complainant alleges that on verification it was found that the Board supplied was not as per specification and was inferior quality with a crack on the Board. Complainant informed this fact to opposite party by Ext.A2 letter dated 14.12.2004 that the Fiber Board supplied was of very inferior quality and a crack had been noticed on it. Ext.A4 is the reply sent by opposite party for Ext.A2 letter. It was admitted in Ext. A4 that they had noticed crack on the Board. It was also offered that they would replace a new product. Ext. A4 also informed that school authorities had to collect the new Board within a week from their factory. The opposite party has the case that complainant agreed to this offer and as per this understanding complainant sent one Shaji John along with some persons and took the new Board to their institution in the month of September 2005. Opposite party has also stated in his version that some of the staffs present at that time had been witnessed the entire transaction including the delivery of replaced Board. But opposite party did not take any steps to examine anyone of the staff to prove his case whereas, the PW1, the complainant’s witness Mr.Shaji John, he who had allegedly taken the Board examined as PW1 . He has stated in his affidavit thus;<br /> <br /> <br /> <br /> In cross examination he has deposed that ‘<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> In the light of the above evidence it cannot be believed that Mr.Shaji John had taken the new board to School. One of the staffs of opposite party could have been , atleast ,examined to prove the contentions of opposite party. Oppoiste party has not taken interest to adduce evidence so as to establish his case. Hence the contention that the complainant sent one Mr. Shaji John of the complainant’s institution and taken away the Board in the month of September 2005 has not been proved. Ext.A4 is clear admission that there was a crack on the Board and so also opposite party promised to replace the same. There is proof that Board was defective and there was crack on the Board. But replacement of Board has not been proved. Hence we, have no hesitation to hold that there is deficiency in service on the part of the opposite party.<br /> The opposite party has admitted that complainant had paid Rs 24,024/-. The opposite party is liable to refund the amount. Complainant is entitled to get the amount refunded. The complainant estimated a loss of Rs 5,000/-. But the actual loss is not explained or proved. Damages can only be awarded based on the actual loss. Hence the complainant is not entitled for compensation for damages. Complainant deserves for a cost of Rs 500/-. The issues 1 to 3 are found in favour of complainant and orders passed accordingly.<br /> In the result, the complaint is allowed directing the opposite party to refund Rs 24,024/-( Rupees twenty four thousand and twenty four only) with cost of Rs. 500/-( Rupees five hundred only) to the complainant within one month from receiving this order. The complainant has to return the damaged Board on receiving the amount. If the opposite party is failed to pay the amount in time, complainant is allowed to execute the order against the opposite party as per the provisions of Consumer Protection Act.<br /> Sd/- MEMBER Sd/-MEMBER Sd/-PRESIDENT<br /> APPENDIX <br /> Exhibits for the complainant<br /> <br /> A1. Letter dt. 23.12.2003 sent by the opposite party<br /> A2. Photo copy of the letter dt. 14.12.2004 sent to the opposite party<br /> A3. Copy of the notice dt. 19.8.2005 sent to the opposite party<br /> A4. Letter dt. Nil sent by the opposite party<br /> A5. Tax invoice dt. 1.6.2006 issued by Western India Plywoods Ltd. Valapatanam.<br /> <br /> Exhibits for the opposite party –Nil<br /> <br /> Witness examined for the complainant<br /> PW1. Shaji John<br /> <br /> Witness examined for the opposite party –Nil<br /> <br /> Forwarded/ by order <br /> <br /> SENIOR SUPERINTENDENT<br /> <br /> <br /> <br />