ELECTRO POINT HIGH TECH VIDE CAMERA SERVICE CENTRE vs Kannan

THE complainant filed the complaint before the District Consumer Disputes Redressal Forum, Cuddalore, pleading as follows: THE complainant entrusted the Video Player of Sharp Make for repairs with the opposite party on 6.10.1994. THE opposite party promised to get it repaired and hand it over in a week''s time. Further, according to the conditions of the Job Card, if the repair charges exceeds Rs. 250/-, the consent of the owner has to be obtained. In spite of lapse of 1 years, the opposite party has not chosen to repair but has kept quite. THE complainant has been renting out the video player and has been earning a sum of Rs. 60/- per day. THErefore, he has been deprived of income from 6.10.1994 and thus incurred a loss of Rs. 36,600/-. THE complainant has suffered mental agony, hardship and incurred unnecessary expenses for transportation because of the failure of the opposite party to get it repaired and hand it over in time and on that ground, the complainant seeks compensation Rs. 5,000/-. THE complainant sent a notice on 13.5.1996 calling upon the opposite party to pay a sum of Rs. 41,600/- to which a reply was sent by the opposite party stating that the repair charges would come to Rs. 3,700/-. THE complainant was never asked by the opposite party to pay Rs. 3,700/- towards expenses charges not was informed that it would cost at Rs. 3,700/- to make repairs. A New Video Player will cost only Rs. 9,000/-. THErefore, to claim Rs. 3,700/- towards repair charges is unjustifiable. Hence, the complainant seeks recovery of Rs. 41,600/- and the return of the video player or in default, to pay a sum of Rs. 9,000/- in addition for the purchase of a new video player.

THE opposite party did not appear before the lower Forum. THErefore, the lower Forum passed an order on 17.3.1998 directing the opposite party to pay a sum of Rs. 5,000/- towards mental agony and hardship and to pay a further sum of Rs. 36,600/- towards the loss and return the video player or pay a sum of Rs. 9,000/- towards the value of the same. The opposite party filed an application in CMP No. 26/98 to set aside the order. The lower Forum dismissed the application.

Aggrieved by the order passed by the lower Forum on 17.3.1998, the opposite party has preferred the appeal in A.P. No. 21/2004. Aggrieved by the order of the dismissal of the application filed by the opposite party to set aside award passed by the lower Forum on 3.6.1998, the appeal in A.P. 390/98 has been preferred. Since the matter is the same and the parties are the same, both the appeals are taken up together for common disposal.

THE fact remains that the video player was entrusted by the complainant to the opposite party/appellant for repairs. It was entrusted to him on 6.10.1994. It was neither repaired nor returned by the opposite party to the complainant so far. In the course of argument, the learned Counsel appearing for the appellant submitted that there was a theft in the premises of the appellant and thus the opposite party was not in a position to return the video player to the complainant. From the records, we find that though it was entrusted on 6.10.1994, there was no communication from the opposite party/appellant to the complainant about the fate of the video player entrusted to them for repair. On 13.5.1996, the complainant sent notice through his lawyer demanding the return of the video player along with a sum of Rs. 44,000/-. Only after that a reply has been issued. It is also to be pointed out that the opposite party has not chosen to appear or contest the complaint. THErefore, it is obvious that the opposite party is not in a position to return the video player. THE complainant has given the value of a new video player at Rs. 9,000/- which stands undisputed. THErefore, it is just and necessary that a direction should be issued to the opposite party namely the appellant to pay the cost of the video player namely Rs. 9,000/-. The complainant has claimed Rs. 36,600/- as and by way of loss of income. According to him, he was getting a sum of Rs. 60/- per day by way of renting out of the video player and since the said income was not made available to him by reason of the conduct of the opposite party in not returning the same either repaired or not, from 6.10.1994 till the date of the complaint the complainant was deprived of such income and, therefore, on that ground, he is entitled to Rs. 36,600/-. This claim was totally accepted by the lower Forum. The complainant has not chosen to produce any material much less to show that he has been getting a regular income of Rs. 60/- per day by hiring out the video player. The complainant''s case cannot be accepted as made out simply because of the opposite party has not filed the version. When the huge amounts are claimed, the Forum below should be cautious and should not be carried away by the fact that the persons against whom the claims are made, have chosen to be absent. A mere statement made in the complaint or for that matter in the proof affidavit, cannot be taken as a substitute for proof. In such cases where the huge amounts are claimed, more so, when the other party has not chosen to appear, the Forum below has to adopt a cautiou approach and scrutinise the claim with all care and caution. But in this case, we are left only with the version. Though we can accept or conclude that the failure to respond to the notice and to the complaint will lead to a presumption that the complainant was hiring out the video player and was earning income that does not ipso facto lead to any inference regarding the extent of income realized by the complainant from such avocation. Therefore, we feel that the claim at Rs. 36,600/- is very much on the high side and it appears to be arbitrary and fanciful claim. But at the same time, we have to take note of the fact that till the filing of the complaint which was in the year July, 1996, for a period of about 33 months, the complainant has been deprived of the usage of the video player. It is also not shown as to why the complainant just waited like that for nearly 2 years and chose to spring into action on 13.5.1996 only. Even according to the complainant, the opposite party promised to get it repaired in a week and hand it over to him. Therefore, one would expect the complainant to have taken action immediately after a week or at least after a month. But he chose to issue notice only in the year 1996 and followed it up with the complaint in July, 1996. he cannot wait for years together and choose a convenient date to approach the lower Forum and claim a huge sum without accounting for his inaction during all the time. If he was prevented from resorting to the Forum by any act of the opposite party or by any promises, then, one can understand the complainant making such a huge claim towards the loss of profit, but that is not the allegation made here. Therefore, in such circumstances, we have no hesitation in holding that claim at Rs. 36,600/- towards loss of income is really fanciful and cannot be entertained. At the same time that the complainant has been deprived of the user of it for some time at least, is a fact which cannot be overlooked. To that extent, some sort of compensation has to be paid to the complainant towards loss of income. In the circumstances, we would fix a period of three months as a reasonable period within which the complainant ought to have asserted his claim and taken steps and, therefore, if at all the complainant is entitled to claim any amount towards loss of income it can only be for a period of three months. Even assuming the complainant''s case is to be true that he would have earned Rs. 60/- per day for the period of three months, it may at best come to Rs. 5,400/- in all, which, in the circumstances, we would round off to Rs. 5,000/-.

COMING to the question of mental agony and compensation, the lower Forum has chosen to award a sum of Rs. 5,000/- towards mental agony and transport charges. In the circumstances, we would reduce it to Rs. 2,500/-. We are of the view that the complainant will be entitled to only Rs. 5,000/- towards the loss of income and Rs. 2,500/- towards mental agony and other expenses and Rs. 9,000/- towards the cost of the video player. In all making of a sum of Rs. 16,500/-. In the result, both the appeals are accordingly disposed of modifying the order of the Forum below as follows: (a) The appellant/opposite party is directed to pay a sum of Rs. 16,500/- to the complainant. (b) Time for compliance: Two months (c) Since the parties have succeeded and failed in part, both parties are directed to bear their own costs throughout.

Appeals disposed of.