State Consumer Disputes Redressal Commission
Allied Photographics India Ltd., vs Mr. Harischandra U. Salgaonkar, on 1 April, 2009
THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA Present: Smt. Sandra Vaz e Correia .. Presiding Member Smt. Caroline Collasso .. Member. Appeal No.2/2008 Allied Photographics India Ltd., Kasturi Building, 3rd Floor, Jamshedji Tata Road, Mumbai 400 020. Appellant (Original Opposite Party) v/s Mr. Harischandra U. Salgaonkar, C/o Janata Photo Studio, Shop No.9, Municipal Market Bldg., Municipal Market, Opp. Hotel Zurai, Vasco da Gama, Goa. Respondent (Original Complainant) For the Appellant Shri U R Timble Advocate and Advocate P. Prabhu presentat the time of order For the respondent Shri A Lourenco,Advocate Dated:01-04-2009 ORDER
[Per Smt. Sandra Vaz e Correia, Presiding Member]
1. The appeal was taken up for admission. The appellant assails the order dated 22-11-2007 passed by Consumer Disputes Redressal Forum (District Forum) South Goa in Complaint no. 38/2004 whereby he was directed to refund to the respondent an amount of Rs. 30,000/- paid against the cost of photo system alongwith interest @ 18% p.a. and further amounts of Rs.31,166/- towards cost of material, Rs.14,650/- being cost of flash light bulbs and compensation/damages of Rs.6,000/-, the latter amounts not carrying any interest. The respondent is the original complainant.
2. At the outset, we shall deal with the appellants application for condonation of delay. The appellant submits that he received copy of the order from the District Forum by registered post on 10-12-2007 and could not file the appeal within time as he had to come down from Mumbai etc. However, it is seen from the records that the appeal was filed on 07-01-2008, which squarely falls within the thirty-day limitation period.
3. Turning to the dispute, in a nutshell, it is the case of the respondent/complainant that had purchased a Sterling Photo Quick Camera Assembly, a 2-minute photo system from the appellant/opposite party on 06-07-2001 for total consideration of Rs.75,000/-. An amount of Rs.20,000/- was paid on taking delivery of the machine and balance was payable in installments on its satisfactory performance. Within six months of purchase, the photo system went out of order and developed manufacturing defect. The appellants/opposite partys technician found some parts burnt inside alongwith major damage and assured to do the needful but failed to do so. Even after installation of flash bulbs, the performance of the system did not improve causing the respondent/ complainant to ask the appellant/opposite party to take back the items and refund all amounts paid. The respondent/ complainant then issued a letter dated 12-04-2002 to the appellant/opposite party inter-alia calling upon him to refund the amounts alongwith compensation. The respondent/complainants reputation in the business was affected on account of the poor quality of impressions of the photo system. He sought direction to the appellant/opposite party to refund the amounts paid alongwith 18% interest and for compensation of Rs.20,000/-.
4. The appellant/opposite party though represented through counsel opted not file written version or lead evidence or advance arguments before the trial forum. The District Forum considered the evidence brought on record by the respondent/complainant and came to a finding that the complainant had succeeded in proving deficiency in service rendered by the opposite party.
5. We heard Shri U R Timble for the appellant and Shri A Lourenco for the respondent. We shall first deal with the appellants main ground of challenge that the District Forum erred in refusing opportunity to cross examine the respondent thereby resulting in failure of natural justice. Apparently, the complainant filed his affidavit-in-evidence on 09-02-2005; at the following hearing on 25-02-2005 the appellant/ opposite party moved an application seeking to cross-examine the complainant. The plea was heard by the Forum and by an order dated 16-03-2006 the Forum kept the application in abeyance to be decided only after the opposite party files its affidavit; the reason being that cross-examination cannot be permitted until and unless all parties have entered their respective affidavits-in-evidence.
6There is merit in the appellants contention in this respect. Natural justice required that an opportunity ought to have been given to the opposite party to cross-examine the complainant to test the veracity of the statements made on affidavit. Besides, there was no question of the opposite party entering their affidavit-in-evidence when they had not entered their written version at the appropriate stage. The Ld Counsel for the respondent countered that in case the appellant was aggrieved by the order dated 16-03-2006 he ought to have preferred appeal within the limitation period and could not canvass the issue at this stage. However, the appellant brought to our notice Satyadhyan Ghosal vs. Smt Deorajin Debi AIR 1960 SC 941, wherein the Honble Apex Court, in interpreting the principle of res judicata, held that an interlocutory order not appealed against can be challenged in appeal from final decree or order.
7. In view of the foregoing, we are inclined to allow this appeal. The impugned order dated 22-11-2007 is hereby set aside. The matter is remanded to the District Forum with direction to consider and decide the appellant/opposite partys application dated 25-04-2005 in accordance with law, and in any case to finally dispose the complaint within sixty days from today. Parties shall bear their own costs.
8. Parties to appear before the District Forum on 04-05-2009 at 3 p.m. Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member