State Consumer Disputes Redressal Commission
M/S. K.B.R.Wires & Bearings vs N. Nallaperumal (Died) And Others on 14 September, 2009
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT THIRU Pon. GUNASEKARAN B.A.,B.L., MEMBER - I F.A.NO.128/2006 (Against order in O.PNo.524/2003 on the file of the DCDRF, Madurai) DATED THIS THE 14th DAY OF SEPTEMBER 2009 M/s. K.B.R.Wires & Bearings Rep. by its Proprietor Thathiah 91/103, Peraiyur Road M/s.V.V.Giridhar & S.Ansari Usilampatti 625 532 Counsel for Madurai District Appellants / Opposite party Vs. N. Nallaperumal (Died) LRs of sole appellant 1.
Peyammal W/o. N. Nallaperumal
2. Ammavasae S/o. N. Nallaperumal
3. Muthiah S/o. N. Nallaperumal
4. Balu S/o. N. Nallaperumal
5. Meenal D/o. N. Nallaperumal
6. Pandi S/o. N. Nallaperumal
7. Seeniyammal D/o. N. Nallaperumal
8. Pandiammal D/o. N. Nallaperumal
9. Parameswari D/o. N. Nallaperumal Mr.V. Balaji
10. Amaravathi Counsel for D/o. N. Nallaperumal Respondents/ Complainants M. THANIKACHALAM J.
1. The opposite party before the lower forum, who suffered an award at the instance of the deceased complainant is the appellant.
2. The deceased complainant by name N. Nalllaperumal had purchased a submersible motor manufactured Texmo Company for irrigating his fields as per bill dt.17.9.200. The appellant, after the payment of a sum of Rs.50000/- or so supplied a motor and installed the same also collecting a charge of Rs.3000/-.
As reported in the complaint, the motor supplied and installed has not functioned effectively serving its purpose of pumping water, resulting a complaint to the appellant/supplier. The appellant after inspecting or otherwise satisfied that the original motor supplied by them was defective, substituted another motor as if it is a brand new one. Believing the words of the appellant, the complainant also installed the same, but it proved worthless since the said motor also not functioned well as expected. Thereafter, the complainant approached the consumer action group and negotiations by them also ended in futile, compelling the deceased to approach the District Forum asking for the return of Rs.26600/-, being the value of the motor supplied, installation charges as well as compensation of Rs.50000/- and for cost.
3. The complaint was opposed by the appellant as if he has not supplied any motor to the complainant, that the complainant appears to have fabricated the bills as if it was issued by the appellant and that filing the vexatious petition he was unnecessarily dragged on to the Forum, thereby praying for the dismissal of the complaint, with exemplary cost.
4. On the basis of the above pleadings, the parties went on hearing or enquiry before the lower forum, wherein filing affidavits, some documents were also filed and they are Ex.A1 to A6 and B1 to B3. The lower forum scanning the above materials, hearing the submission of either parties and accepting the affidavits, came to a conclusion that the defense raised by the appellant are frivolous in nature, that infact the complainant had made out a case for the purchase of the motor and it is mal-functioning, resulting damage also. Thus concluding the lower forum directed the appellant to return Rs.26600/- after taking back the motor supplied and in addition it also directed to pay a sum of Rs.5000/- as compensation in addition to cost of Rs.1500/-, which is impugned in this appeal.
5. Heard the learned counsel appearing for either side as well as perused the written submission made by them.
6. The appellant though had taken a stand before the lower forum that the deceased complainant had not purchased anything from the appellant, later he realized probably on seeing the unquestionable documents that the defense is false even to his knowledge. In paragraph 5 of the version it is stated that the complainant had not purchased anything from opposite party. So this complaint is not maintainable. Ex.A1 is the bill said to have been issued by the appellant firm. In the front pages of the bill, none had signed or subscribed any signature accepting the contents therein such as the materials mentioned therein were supplied to the complainant on receipt of the payment. Taking advantage of this fact alone a frivolous contention was raised forgetting to see this document entirely which contains endorsement also, which was later cancelled as rightly held by the lower forum. The learned counsel for the appellant realizing this fact that the endorsement therein cannot be challenged, which does contain the representatives signature of the appellant firm, has not urged this point, which was raised before the lower forum as if the complainant had not purchased the motor. Hence the finding of the lower forum that the complainant had purchased a brand new motor paying a sum of Rs.20,450/- has to be accepted in toto and we do not find any error in this finding warranting our interference.
7. As observed by the lower forum for the non-production of ledger, day book etc., maintained by the appellant also an adverse inference could be drawn under law. It is the specific case of the complainant that he had paid an advance of Rs.29000/- on 17.9.2000 and on 24.9.2003 when the motor was handed over, paid a further sum of Rs.21000/-, totaling a sum of Rs.50000/- which was endorsed on the backside of the bill. Since on two occasions cash were said to have been handed over, that should reflect in the day book and ledger book maintained by the appellant firm. Really if the appellant had not received the said amount, by producing those books, the appellant can very well falsify the case of the complainant, if it is so. The inaction on the part of the appellant compels us to draw a presumption, as rightly did by the lower forum that the accounts were not produced since, if produced that it will throw light positively, prove the case of the complainant, payment of Rs.50000/-.
8. The complainant fairly has averred in the petition that on complaint about the defect in the motor supplied a substitute was given or the said motor was replaced by another motor, which also failed to function as expected. This is also totally denied. It is not the case of the appellant, that on complaint by the complainant, a new motor in good condition was supplied. Therefore, we need not go in detail, about the second motor, but considering the fact that there was some negotiation through the consumer action group, we have to see this point also to discover the genuineness of the complainants case, as well as falsity of the appellants case.
9. When the matter was reported to the consumer action group, according to complainant under Ex.A5 in the presence of Mr.Shanmugam, the representative of the appellant company admitted the supply of re-built motor or reconditioned motor as the case may be and that is why, that motor also went out of order. To ignore the above case of the complainant and to eclipse the same as false, we find no material on the side of the appellant. This fact is also in detail, discussed by the lower forum in paragraph 6 of the order, which deserves acceptance. The reconditioned motor is available with the complainant and the lower forum also ordered the appellant to take back the said motor on payment of the cost of the original motor, which is absolutely correct warranting our seal of approval. The cost of the original motor is quantified in the order, which is not challenged before us. Because of the defective motor the poor agriculturist was unable to draw water and irrigate the field and therefore certainly there should have been loss which is very fairly quantified at Rs.5000/-. The appellant having received the amount for the supply of motor, not only committed breach of trust, but also caused deficiency in service by supplying unworkable reconditioned motor, thereby by his act proving that he himself has committed deficiency in service, warranting the application of the provisions contained the Consumer Protection Act. The lower forum elaborately considering the above matters, analyzing the documentary proof, has rightly come to the conclusion, which requires confirmation and not modification or setting aside.
10. In the result, the appeal fails and the same is dismissed confirming the order of the District Forum. There will be no order as to cost in the appeal.
PON GUNASEKARAN M. THANIKACHALAM MEMBER-I PRESIDENT INDEX : YES / NO Rsh/d/mtj/machineries