State Consumer Disputes Redressal Commission
Sh. Deepak Malhotra. vs Sh. Tilak Raj Jinta. on 4 July, 2016
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.: 49/2016
Date of Presentation: 29.02.2016
Date of Decision: 04.07.2016
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Deepak Malhotra,
Son of Shri B.B. Malhotra,
Partner M/s. Accurate Engineering Company,
80, Industrial Area, Ambala Cantt, Haryana.
... Appellant.
Versus
Tilak Raj Jinta,
Son of Shri Krishan Dass Jinta,
Resident of Village Khashdhar, Tehsil Chirgoan,
District Shimla, Himachal Pradesh.
...Respondent
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Coram
Hon'ble Mr. Justice Surjit Singh, President.
Hon'ble Mr. Vijay Pal Khachi, Member.
Whether approved for reporting?1
For the Appellant: Ms. Godawari Advocate vice
Mr.Vijay Arora, Advocate.
For the Respondent: Mr. Nipun Thakur, Advocate
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O R D E R:
Justice Surjit Singh, President (Oral) Appellant has preferred this appeal against the order dated 03.12.2015, of learned District consumer Disputes Redressal Forum, Shimla, whereby in a complaint, under Section 12 of the Consumer Protection Act, 1986, filed against him by respondent Tilak Raj Jinta, a direction has 1 Whether reporters of the local papers may be allowed to see the order?
Deepak Malhotra Versus Tilak Raj Jinta (F.A. No.49/2016) been given to him to refund an amount of `8,500/-, with interest at the rate of 9%, per annum, from the date of filing of the complaint to the date of its refund and it has also been directed that the machines supplied by him, being defective, be repaired within 45 days, failing which their price amounting to `1,48,000/-, be refunded with interest at the rate of 9%, per annum. Also direction to pay a sum of `5,000/-, on account of cost has been given.
2. Respondent filed a complaint under Section 12 of the Consumer Protection Act, 1986, alleging that he was approached by the appellant at his native place in Shimla district, to buy an apple grading and an apple polishing machine and that a sum of `8,500/- was charged twice on account of freight charges. Also, it was stated that the machines supplied were defective and had not been in working from the very beginning. Direction was sought to the appellant to replace the machines or to refund their price. Also, a direction was sought for refund an amount of `8,500/-, which had allegedly been charged twice, on account of freight charges.
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Deepak Malhotra Versus Tilak Raj Jinta (F.A. No.49/2016)
3. Appellant did not put in appearance despite service. So he was proceeded ex-parte. On the basis of ex-parte evidence adduced by the respondent, Learned District Forum concluded that the machines were defective and that the respondent had been charged double the amount, which was actually chargeable on account of freight charges, for transporting machines. Another allegation made by the respondent in his complaint that some more money was charged for supplying four more machines but the machines had not been supplied, did not find favour with the Learned District Forum. Respondent has not filed any appeal assailing the finding of the Learned District Forum with regard to the other allegation made by him in the complaint and, therefore, we have not taken notice of the said allegation, while summarizing the facts.
4. It is submitted on behalf of the appellant that service of notice was not effected upon the appellant properly and in a lawful manner. The record of the Learned District Forum negates this submission. One of the registered covers sent to the appellant bears an endorsement by the postal authorities that the appellant refused to accept the 3 Deepak Malhotra Versus Tilak Raj Jinta (F.A. No.49/2016) cover containing notice and the copy of complaint. Another notice sent by registered AD post was received by one Kiran Malhotra, on behalf of the appellant, as is made out from the AD card, which is also available on the record of Learned District Forum. So, the appellant cannot be heard to say that he had not been duly served.
5. Respondent did not adduce any evidence except his self serving affidavit in support of the allegation that the machines supplied by the appellant are defective and are lying idle. So, the order of the Learned District Forum, directing the appellant to repair the machines or to refund the price, in case, the repair is not carried out within 45 days, is liable to be reversed.
6. As regards the direction for refund of `8,500/-, learned counsel representing the appellant submits that two machines were supplied against two different invoices, i.e. Annexure C-1 and Annexure C-4 and those machines were transported in two different trucks. Both the invoices are of same date. In one invoice, i.e. Annexure C-1, truck number, by which the machine was sent, is mentioned. In the other, there is no mention of any truck, which fact implies that both the machines 4 Deepak Malhotra Versus Tilak Raj Jinta (F.A. No.49/2016) were sent in one truck. Therefore, the submission for reversing the direction for refund of `8500/-, is rejected.
7. In view of the above stated position, appeal is partly allowed and the direction in the order of Learned District Forum for the repair of machines, within 45 days and in case of failure to carry out the repair within the aforesaid period, to refund the price of machines, is set aside. However, the direction regarding refund of `8500/-, with interest and for payment of costs, is upheld. Appeal stands disposed of accordingly.
8. A copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Vijay Pal Khachi) Member July 04, 2016.
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