KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUANANTHAPURAM APPEAL No.412/2008 JUDGMENT DATED: 15.01.2010 PRESENT: SHRI.M.V.VISWANATHAN : JUDICIAL MEMBER SHRI.S.CHANDRA MOHAN NAIR : MEMBER Mobile City Sales and Service Sales and Service : APPELLANT Fathima Tower Mepaddy.P.O. (By Adv.Sri.P.Rajmohan) Vs. V.D.Shaji, : RESPONDENT S/o.late Damodharan, Vadakathil Veedu, Vythiri.P.O., Wayanad. (By.Adv.Sri.M.K.Abdul Salam) JUDGMENT SHRI.S.CHANDRA MOHAN NAIR : MEMBER By the order dated 29.09.08 the opposite party in C.C.34/08 is under directions to pay to the complainant a sum of Rs.7,000/- being the value of the mobile phone with compensation of Rs.1,000 within 30 days from the date of order. It is also ordered that 10% interest per annum is also to be paid from the date of order till date of payment. It is aggrieved by the said directions that the opposite party has come up in appeal calling for the interference of this commission as to the sustainability of the order passed by the Forum below. 2. The case of the complainant before the Forum is that he had purchased a Nokia phone for a sum of Rs.7,000/- from the opposite party on 20.01.08 and that the phone was not working properly. It is alleged that a proper bill was not given by the opposite party and that the opposite party did not replace the mobile phone or pay the cost of the phone in spite of repeated requests. 3. The opposite party in his version contended that though he is conducting the business of mobile phones, he has not sold the disputed phone to the complainant and that the said phone was sold to one Siddique and the complainant might have purchased the phone from the said Siddique. It is also his case that the complainant has not produced any bill showing the purchase and that when the complainant requested for a paper showing the price of mobile phone, he had given a receipt showing the value of the mobile phone. It is also submitted by the opposite party that the phone is still with the complainant and he is not liable to pay cost of the phone. 4. The evidence consisted of the oral testimony of the complainant as PW1 and exts.A1 to A3. The opposite party was examined as OPW1 and one Siddique was examined as OPW2. On the side of the opposite party Exts.B1 and B2 series were marked. 5. The learned counsel for the appellant argued before us that the Forum has erred in directing the opposite party to pay the value of the mobile phone with compensation. It is his case that the bill marked as Ext.A1 was not given by the appellant/opposite party and it is also his case that the mobile phone in question was sold to one side who was examined as OPW2. The learned counsel has argued before us that in the absence of a document showing the purchase and receipt of consideration the complaint ought to have been dismissed by the Forum below. 6. On hearing the learned counsel for the appellant and on a perusal of the records, we find that the complainant has produced a bill which is marked as Ext.A1. On a perusal that Ext.A1 we find no evidence to come to the conclusion that the mobile was sold to the complainant. The opposite party has also examined the person to whom the mobile was sold. Moreover, we find no evidence to show that the mobile had any defect or that it was entrusted to the opposite party for repairs. In the absence of proof to the effect that the mobile had any manufacturing defect we are not inclined to uphold the direction of the Forum below to refund the price and pay compensation. It is also to be seen that the opposite party/appellant had adduced evidence to substantiate his case by examining the person to whom the disputed mobile phone has been sold. In the aforesaid circumstances we find that the order of the Forum below is liable to be set aside. We do so accordingly. In the result the appeal is allowed. The order of the Forum below dated 29.09.08 in C.C.34/08 of CDRF, Kalpetta is set aside. However, in the facts and circumstances of the present appeal, there is no order as to costs. S.CHANDRA MOHAN NAIR : MEMBER M.V.VISWANATHAN : JUDICIAL MEMBER Kb. | 
