ANCHAL SARI SHOP vs M.P. JAISWAL

THIS appeal has been preferred by the O.P. against the order dated 28.8.2003 passed in Complaint Case No. 5/97 by District Forum, Katihar whereby and whereunder directed the appellant to pay Rs. 4,675/- which includes the price of Sari and Rs. 4,000/- as compensation.

THE brief fact of the case is that complainant has purchased one Kora Silk Sari from the shop of O.P.-appellant on 2.12.1996 and paid Rs. 675/- as its cost. When the Sari was used for the first time by the complainant''s wife for attending the recepstion party on 11.12.1996 it was found torn and it started tearing. THE complainant''s wife could not use the Sari nor she attended the reception and felt mental agony. THE complainant approached the shopkeeper on 15.1.197, made allegation about the defective Sari, and requested to return back the Sari and pay him the price of the same but the O.P. neither returned the Sari nor paid the price. THE O.P. gave a slip to the complainant that there is no guarantee of the Silk Fancy Sari. THE same has been filed on behalf of the complainant along with the complaint petition. THE complainant thereafter filed the case and claimed compensation with price of the Sari to the tune of Rs. 5,675/-. The O.P.-appellant appeared and filed rejoinder asserting that his firm is a reputed one and the allegation of the complainant is false and baseless. The complainant has not purchased the Sari in question from his shop. There is no cash memo for the same. The date on which the complainant alleges that Sari was purchased is a fabricated date because on this date and prior to that date the shop was closed, as there was marriage in the family of the O.P. The Chirkut filed on behalf of the complainant was issued by the O.P. under pressure but it was not a cash memo or receipt of purchase of alleged Sari.

The District Forum after considering the submissions of the parties and perusal of the papers on record held that O.P. admits about the Chirkut annexed with the complaint petition, which mentions that Sari was sold to the complainant by the O.P. It is clearly mentioned in the Chirkut that no guarantee is given on the Fancy Sari sold from his shop. No separate cash memo has been given by the O.P. to the complainant is an admitted fact. The District Forum accepted the contention of the complainant and passed the impugned order.

THE main contention of the appellant before us is that Sari in question was never sold by the appellant to the complainant because there is no cash memo on record. THE date on which the alleged Sari was purchased from the appellant''s shop was closed for about 12 days because there was marriage in the family. THE marriage card was produced before the District Forum but it has not been looked into. THE photocopy of the said card has been annexed with the memo of appeal. With regard to the Chirkut the contention of the appellant is that it was issued by him under pressure of the complainant but from this Chirkut it is not clear that complainant has purchased the Sari in question from the appellant on 2.12.1996. It was also argued that there is no expert opinion that Sari was defective. It was further submitted that no affidavit in support of the complaint petition has been filed on behalf of the complainant. therefore, the District Forum has erred in accepting the contention made in the complaint without any supporting evidence in shape of affidavit. As such, the order is bad in law. In reply it was submitted on behalf of the respondent that complainant has filed affidavit before the District Forum, which was considered, and xerox copy has also been filed in the rejoinder of the appeal. The complainant is not so influential person that he can put pressure on the O.P.-appellant who is himself a local businessman. Therefore, the writing of the Chirkut in the pen of the appellant, which is admitted, is a conclusive proof to show that Sari was sold to the complainant. There is no evidence in the shape of affidavit on behalf of the appellant to show that the Chirkut was written by the appellant under coercion or under pressure of the complainant. The District Forum has rightly relied upon the Chirkut and passed the impugned order.

THE main dispute in between the parties is that the subject matter of dispute, i.e., Sari was sold by the O.P.-appellant to the complainant or not. Admittedly, the complainant has not produced cash memo for the purchase of the said Sari. THE appellant disputes that he has sold the said Sari to the complainant muchtheless on 2.12.1996 and his plea is that his shop was closed due to marriage in his family. However, the appellant admits the issuance of the Chirkut in favour of the complainant, which was filed before the District Forum. THE District Forum placed reliance on this Chirkut and held that Sari was purchased by the complainant and thereafter passed the impugned order. THE contention of the appellant that he has written this Chirkut under pressure of the complainant is not acceptable to us. THEre is nothing on record to show that complainant was so influential person that he was in a position to put pressure on the O.P.-appellant to write this Chirkut. THErefore, the District Forum has rightly believed on this Chirkut, which has admittedly been written, in the pen of O.P.-appellant and it proves that the appellant sold the Sari to the complainant. THE complainant has annexed affidavit before the District Forum in support of his case. In the fact and circumstances, we are of the view that finding arrived at by the District Forum does not require our interference. The amount of compensation of Rs. 4,000/- appears to be on higher side, which is reduced to Rs. 2,000/- only. The appellant shall pay the price of Sari, which is Rs. 675/- plus Rs. 2,000/- as compensation for mental agony to the complainant (in all Rs. 2,675/-) within two months from the date of this order. With this modification in the impugned order, the appeal is allowed in part. However, there shall be no order as to cost. Appeal partly allowed.