ELLORA ELECTRICAL SUPPLIERS vs DINABANDHU MALLIK

THE present appeal is by a dealer against whom an order has been passed by the District Forum, Kendrapara to supply a brand new portable water cooled 4.5 MP diesel pump set of Botliboi and Company Ltd. failing which to refund the price of Rs. 11,800/- with interest at the rate of 20% per annum as directed by the District Forum. It is not disputed that the complainant purchased from the opposite party No. 1, a dealer the above pump set, the manufacturer of which was opposite party No. 2 namely Botliboi and Company Ltd., Bombay. THE allegation was that immediately after the purchase of the said motor pump, the same did not function and even though a complaint was lodged with the opposite party No. 1 and later also sent a mechanic for rectification of defects still the defects persisted for which the complainant was bound to approach the District Forum for redressal of his grievance. Opposite party Nos. 1 and 2 filed separate versions in which both of them denied the allegation of inherent defects in the pump set, and thus claimed for dismissal of the complaint petition. THE District Forum on appreciation of the case of the parties and relying on the affidavits filed by the witnesses for the complainant held that infact the pump set was defective one and it was at one point, twice repaired by the mechanic of opposite party No. 1. It did not however took into account the pleading of the opposite party No. 2 in his written version, where opposite party No. 2 stated that for any inherent defect in the pump set, the opposite party No. 2 would be liable to replace the same.

MR. Routray the learned Counsel for the appellant-dealer has strenuously urged that there was a gross error in the judgment of the District Forum inasmuch as when the opposite party No. 2 admitted in the written version that in case of any inherent manufacturing defect in the pump set, it would replace a new pump set, there was no reason to shaddle the cost on the opposite party No. 1. We have appreciated argument. On perusal of the complaint petition as well as the written version of opposite party No. 2 we have no hesitation to hold that opposite party No. 2 was readily willing to replace the machine in case it turned to be a defective one. The appellant was a mere dealer. But once the manufacturer was before the Forum the direction of the District Forum to replace a new pump set or refund of the cost to opposite party No. 1 is incorrect. On appreciating the case of the appellant, we find no reason to set aside this order. However, we hold that it is opposite party No. 2 who should be liable to replace the pump set with a new one. We accordingly allow this appeal and modify the order of the District Forum to this extent. Rest part of the judgment with regard to the reasoning and finding of the Forum is confirmed. Awarding of costs of Rs. 5,000/- is also set aside. However, opposite party 2 is liable to pay the costs of Rs. 1,000/- to the complainant and the pump set should be replaced by opposite party No. 2 within a period of 4 weeks from the date of communication of this order. No costs. Appeal partly allowed.