State Consumer Disputes Redressal Commission
Saibaba Machinery Stores, vs Waman Narayan Suryawanshi, on 3 March, 2014
1 F.A.No. :1299/2008
Date of filing:15.12.2008
Date of order:03.03.2014
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO.: 1299 OF 2008
IN COMPLAINT CASE NO. : 237 OF 2008
DISTRICT FORUM : LATUR.
Saibaba Machinery Stores,
Through its Proprietor,
Nitin Chandrakantrao Pattewar,
R/o Shop No.5, Old Gul Market,
Latur. ...APPELLANT
VERSUS
Waman Narayan Suryawanshi,
R/o Borphal, Tq.Ausa,
Dist.Latur. ...RESPONDENT.
Coram : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Mrs.Uma S.Bora, Hon`ble Member.
Present : Adv.Shri.P.R.Tandale for appellant.
O R A L JUDGMENT ( Delivered on 03rd March 2014 ) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. This appeal is directed against the judgment and order dated 3.11.2008 passed by District Consumer Forum Latur partly allowing consumer complaint No.237/08 directing appellant/opponent to pay to the complainant Rs.37,500/- towards cost of the thresher with interest @ 9% p.a., further compensation of Rs.5000/- for committing deficiency in 2 F.A.No. :1299/2008 service, Rs.2000/- more for causing mental agony and Rs.1000/- towards cost of the proceedings.
(For the sake of brevity appellant is hereinafter referred as opponent and respondent as the complainant)
2. The brief facts giving rise to this appeal are that:-
Opponent is a dealer of thresher machines of Prakash Manufacturing company. On 18.2.2008 complainant purchased thresher of worth Rs.37,500/- vide purchase voucher No.590 from opponent with warranty for period six months. However, within 15 days from the date of purchase some defects were noticed and machine was not properly functioning. Therefore the complainant contacted opponent and on receiving information opponent verified the same by sending its mechanic. Opponent also gave assurance to repair the machine but avoided to repair it under one or other pretext. Therefore lastly on 8.7.2008 complainant issued notice asking opponent to repair the machine. But opponent did not comply the notice. Therefore alleging deficiency in service on the part of opponent, complainant has filed consumer complaint claiming Rs.37,500/- towards cost of the machine and Rs.20,000/- more for sustaining loss and Rs.20,000/- towards compensation for causing mental torture. He has also claimed Rs.2500/-
more towards the cost of notice and cost of proceedings. Thus he has claimed total Rs.80,000/-.
3. Opponent refused to accept the complaint notice. Therefore as the same notice returned back, District Consumer Forum proceeded complaint exparte.
3 F.A.No. :1299/20084. On hearing learned counsel for the complainant and considering documents on record District Consumer Forum partly allowed complaint as noted above.
5. Feeling aggrieved by that exparte judgment and order opponent came to this Commission in appeal.
6. We heard Shri.P.R.Tandale learned counsel for the appellant and perused the written notes of argument submitted by him. We also perused the copy of complaint, evidence affidavit of complaint, copy of notice and copies of other documents. However, we have had no opportunity to hear the complainant as he remained absent despite service of notice and therefore appeal is proceeded exparte.
7. It is submitted by Shri.P.R.Tandale learned counsel for the opponent/appellant that opponent never refused to accept complaint notice but merely relying on the postal endorsement on the envelop as 'refused', District Consumer Forum has wrongly passed the impugned judgment and order. It is further submitted that even opponent had no knowledge about filing complaint by the complainant and he came to know about the complaint and passing impugned judgment and order when the copy of impugned judgment and order was brought and showed to it by complainant. However, he has fairly conceded that in the absence of opponent i.e. proprietor of opponent postman had been to his shop with notice and his employee refused to accept the notice. Accordingly he was informed by his employee on his return to the shop. But his employee was not aware about the contents of envelop. Thus according to Mr.Tandale learned counsel for the opponent, the opponent was not at any fault. But District Consumer Forum merely relying on the refusal endorsement made by postman wrongly passed the exparte impugned judgment and order. It is submitted that in order to give 4 F.A.No. :1299/2008 opportunity of hearing to the opponent it is just and necessary to remand the matter and accordingly he has submitted to remand the matter. But we find no merit in the submission of Mr.Tandale advocate for the opponent, because when the opponent was informed by his employee about returning the notice, he should have made enquiry with the Postman and received the notice. Even he should have enquired with the office of District Consumer Forum but he did nothing. Merely because his employee was not aware about contents of envelop is not sufficient to hold that opponent was not aware about filing complaint by the complainant.
8. Apart from the above fact, undisputedly opponent had received legal notice which was sent by complainant prior to filing of complaint and same is also not replied by the opponent. But no explanation is given as to why he did not reply the notice. This fact also falsify the contention of opponent that he was not aware about the contents of envelop which was returned by postman making endorsement as refused. Thus it is obvious from the undisputed facts that opponent has deliberately avoided to appear and resisted the complaint before the Forum. Therefore it cannot be accepted that no opportunity of hearing was given to the opponent. Hence submission of learned counsel for the opponent to remit the matter back to the District Consumer Forum, cannot be sustained.
9. Apart from the above facts, it is submitted by Shri.P.R.Tandale learned counsel for the opponent that even if there is any manufacturing defects in the thresher opponent dealer cannot be held liable as it is the responsibility of manufacturing company. But complainant has not made any complaint against the manufacturing company though it is necessary party. Therefore complaint itself is not maintainable. True it is that, manufacturing company is also liable for the manufacturing defects 5 F.A.No. :1299/2008 but at the same time dealer is also vicariously liable. Therefore since opponent failed to resist the complaint by appearing before the Forum now maintainability of complaint on such ground cannot be considered.
10. For the foregoing reasons appeal is being devoid of any merit liable to be dismissed. Hence the following order.
O R D E R 1. Appeal is dismissed. 2. No order as to cost.
3. Copies of the order be sent to both the parties.
Sd/- Sd/- Uma S.Bora S.M.Shembole, Member Presiding Judicial Member Mane