BHAGWATI ELECTRONICS AND ELECTRICAL vs MOHINDER KUMAR

FEELING aggrieved by the order of the District Consumer Disputes Redressal Forum, Kangra at Dharamshala, dated 20. 8. 2004, in Consumer Complaint No. 442/2002, the appellant has come before this Commission with the present appeal.

THE District Forum below while deciding the complaint on 20. 8. 2004 in favour of respondents, directed the appellant to supply the cable wire as per required standard worth Rs. 36,000 to the respondents and also to file affidavit along with the report of the mechanic. In addition to this, the appellant has been directed to pay compensation to the respondents to the tune of Rs. 5,000 for causing mental harassment and torture. The appellant feeling aggrieved and dissatisfied with the impugned order of the District Forum below has challenged the same on various grounds. The main dispute was regarding the quality of cable wire which was purchased by the respondents from the appellant.

I have gone through the case file, the record of the District Forum below, as well as the documents placed on record by the parties and have also heard learned Counsel for the appellant as well as have gone through the case law referred by him.

MR. Vivek Negi who appeared as vice Counsel for the appellant has argued that the present dispute does not fall within the ambit of Consumer Protection Act, 1986 as there is clear-cut admission on the part of the respondents that they purchased the cable wire for the purpose of cable connection business and as such they are running commercial establishment. So as per Mr. Negi''s submissions the respondents are not consumers as per Consumer Protection Act, 1986. Mr. Negi further refers to para 3 of the complaint, wherein it has been mentioned that the respondents jointly started the cable business and this shows that the business is not for the purpose of self-employment, but for commercial purpose and so this does not fall under the definition of consumer. There is admission on their part that they have given 100 cable connections and as such in order to run this business many employees have also been kept by them. So this is commercial establishment and not business of self-employment.

ANOTHER point urged by Mr. Negi is that as per respondents the cable wire which was purchased by them from the appellant was not up to the mark and that it was of low quality. But as per Mr. Negi this was a wrong allegation made by the respondents. The wire was of good quality, but the respondents did not make the payment of the whole mount of the cost of wire. An amount of Rs. 36,000 was paid by the respondents as consideration for purchasing the cable wire but Rs. 17,795 were still to be paid by the respondents to the appellant and in order to shirk this liability of payment, the respondents filed the present complaint before the District Forum below. Mr. Negi further argued that as per requirement of Section 13 of the Consumer Protection Act, 1986 the goods i. e. the cable wire should have been sent to the laboratory in order to ascertain its quality, but in the present case the cable wire was not sent for the purpose of any testing. Another point urged by Mr. Negi is that so far as report of the mechanic is concerned, no reliance can be placed upon his report because he has not stated anything about his qualification. So on the grounds mentioned above Mr. Negi has urged that the present appeal be accepted and the impugned order be set aside.

NOBODY appeared on behalf of the respondents to put forward their case. So the documents placed on record are hereby perused. I have gone through the Annexures A1 to A4 as well as the statements and affidavits of the parties and their witnesses. So far as Annexures A1 to A4 are concerned, they are merely photo-copies which have not been proved in accordance with law. They are nothing more than the waste papers. The report of the mechanic also cannot be relied upon because neither in his report nor in his statement he has anywhere mentioned that he is a qualified mechanic nor it is anywhere mentioned that his qualification makes him expert on the subject. In his statement he has mentioned that the wire is of inferior quality. But this view of the mechanic cannot be relied upon reason being that he has not mentioned as to how he came to this conclusion in the absence of any test. There is no other reasonable explanation given by him in this connection which a prudent person can believe to be of some basis. Even the affidavit of the mechanic Mr. Rajesh Kumar is of no value which is Ext. CW 1. It does not disclose anything about his qualification and also as to how he is an expert in the subject.

IT is further admitted in the complaint that the part payment of Rs. 17,795 is still to be made to the appellant by the respondents. This further strengthens the versions of the appellant that this is not a case of deficiency in service on the part of the appellant. The respondents did not want to make the payment of the remaining money, so they filed the present complaint before the District Forum below. No other point was urged. So after going through the record of the case as well as hearing the arguments, I am of the view that the appellant is not deficient in rendering the service to the respondents as the respondents have failed to establish deficiency in service on the part of the appellant. On the basis of Ext. R2 it is proved that the respondents purchased wire and amplifier amounting to Rs. 53,795 from the appellant and paid Rs. 36,000 to him and the remaining money was yet to be paid so this was more a matter of giving and taking money. No deficiency in service has been proved. The District Forum below has not made application of mind while deciding the complaint. So after the above noted discussions, the appeal is hereby allowed and the impugned order of the District Forum below, dated 20. 8. 2004 is hereby quashed and set aside and the complaint is dismissed, leaving the party to bear their own costs. All interim orders passed from time-to-time in this appeal shall stand vacated forthwith. Learned Counsel for the appellant has undertaken to collect the copy of this order from the Reader free of cost. Copies of this order be made available to the parties free of cost as per rules. Appeal allowed.