ABIJIT AGENCIES vs Usha

THIS appeal, by the opposite party, is directed against the order dated 5.4.1994, passed by the District Forum, Gulbarga, in Complaint No. 103/ 1992, directing the opposite party to replace air-cooler in question, with an air-cooler of the same model in a good working condition or to pay a sum of Rs. 3,300/- with interest thereon to the complainant. The facts, briefly stated, are as follows:

THE opposite party is a dealer in air coolers. THE complainant purchased a ''Cool Tech'' air-cooler from the opposite party for a sum of Rs. 3,300/- on 6.4.1992. It is the case of the complainant that the said cooler began to give trouble. THE opposite party, on some occasions, came and effected some repairs to the cooler, even then the said cooler did not function properly so she requested the opposite party either to replace the said cooler or to pay back the price amount of Rs. 3,300/- collected from her with interest thereon. When the opposite party failed to do so, filed the complaint seeking the reliefs as referred above. The opposite party filed its version and admitted the fact that the complainant had purchased the said cooler from it. But it averred that the complainant did never make any complaint about the malfunctioning of the said cooler and so he averred that the air cooler was not defective.

During enquiry, the complainant examined her husband as PW 2 and another witness - the Commissioner appointed - as PW 1 and got Exs. P1 to P6 marked in evidence. The opposite party examined himself R.W 3 and two other witnesses as R.W. 2 and R.W. 3 and got Exs. Rl and R2 marked in evidence.

THE District Forum on consideration of this material held that the cooler purchased by the complainant from the opposite party was defective and in that view directed the opposite party either to replace the said cooler of the same model in a good working condition or to pay a sum of Rs. 3,300/- with interest thereon to the complainant. We have called for the records and received. We have also heard the learned Counsel for the appellant and perused the material on record.

THE complainant has examined PW 1 and the Commissioner - a Junior Training Officer in Refrigeration and Airconditioning in Government Industrial Institute, Gulbarga. He has given his report on examining the said air cooler, as per Ex. P1. He has stated with regard to the said cooler on his inspection, at paras 13 and 14 of his evidence, as under: "I say that the fan motor was not working properly because the bushes were worn out. I have written as jam in my above said report because the bushes were not working properly. I had not opened the fan motor at the time. of both my above stated inspections." THE report, Ex. P1, reads as under: "Commissioner''s report xx xx THE Inspection report is as under: 1. Fan Motor: Jam not working condition due to lack of the bushing etc. 2. Pump Motor: Working condition. 3. Switch: Working condition. 4. Water pipeline: Working condition. 5. Capacitor: Low quality. 6. Grass: Less quantity. xxx xxx xxx Hence this report."

These facts would go to show that he inspected the said air-cooler on 27.11.1992 and the defect found was that the bushes were worn out. Except this defect, his report and the evidence, does not show any other defects in the said air-cooler. On the basis of this evidence, the finding recorded by the District Forum holding the air-cooler as defective one, in our opinion, is erroneous. The defect found, as per the evidence of PW 1 and his report Ex. P1, was only the defect in the bushes that too due to working of the air-conditioner the bushes were worn out. PW 1 has specifically admitted that he had not opened the fan motor at the time of his inspection. Having regard to these facts and in the circumstances of the case, the finding recorded by the District Forum holding the air-cooler as defective, in our opinion, is clearly erroneous and unsustainable. The material would clearly disclose that the complainant failed to prove that the air-cooler purchased by him from the opposite party was in any way defective or it suffered with any manufacturing defects.

HAVING regard to these facts, we are constrained to hold that the finding recorded by the District Forum is erroneous and unsustainable. ORDER In the result, therefore, this appeal is allowed. The order dated 5.4.1994, recorded by the District Forum, Gulbarga, in Complaint No. 103 / 92, is set aside and the complaint of the complainant is dismissed. The parties are directed to pay and bear their own costs in this appeal. Appeal allowed. ______________