KANCHIPURAM SRIVARADARAJA SILKS-/ vs A.MANIKANDAN-/

THIS appeal is directed against the order dated 18th day of February, 1997 in O.P. No. 776/95 on the file of the District Consumer Disputes Redressal Forum, Chennai (South).

THE appellant is the opposite party while the respondent is the complainant. Necessary and requisite facts as absolutely essential for deciding the crux of the issue involved for consideration in this action may in brevity be related.

The complainant, it appears, went to the opposite party shop on 20.8.1995 to purchase sarees and other items in connection with celebration of his marriage which was to take place on 31.8.1995 at Guruvayur Temple, Kerala. He purchased a bridal saree worth Rs. 6,000/- and four other sarees for Rs. 9,250/- and a skrit for Rs. 400/-, all totalling to Rs. 15,650/-. At the time of purchase, the complainant would say, the opposite party represented that all the materials purchased from their shop were of pure Kancheepuram Silk varieties.

WHEN the bridal saree was sent to the house of the bride, it was represented by the family of the bride that the saree so sent was not of a pure Kancheepuram Silk variety and consequently the saree so sent was returned from the bride''s house. The complainant, it appears, returned the bridal saree to the opposite party and the opposite party in turn also accepted the return and refunded the price of the said saree namely Rs. 6,000/-. The complainant, it appears, on account of the marriage, he was unable to return the other four sarees and skirt piece and after the celebration of the marriage, he would say, he went to the shop of the opposite party for the return of the four sarees and skirt piece.

THE opposite party in turn would say that out of the four sarees, two sarees were used and therefore, they were not in a position to take back the used sarees, although they were willing to take back the two sarees not used and refund the price of the same. THE opposite party did not say anything as respects the usage or otherwise of the skirt piece and they were also willing to take back the same and refund its price. The complainant was not at all willing for such a course and insisted for the refund of the entirety of the price of the four sarees besides the skirt. To which course, the opposite party was not at all amenable. It is in this circumstance the complainant knocked at the doors of the Forum below for certain reliefs as prayed for in the complaint.

THE Forum below after taking into consideration the materials placed on record, ultimately allowed the complaint in part directing the opposite party to refund the cost of the unused sarees and one full skirt together with interest at the rate of 18% per annum on the value of those sarees from the date of the complaint till realisation. THE opposite party was further directed to pay a sum of Rs. 500/- towards cost of this complaint. THE Forum below allowed a month''s time for compliance of its order.

AGGRIEVED by the order as above, the opposite party resorted to the present action by engaging a Counsel of their choice namely learned Counsel Mr. A. Abdul Rahim. The respondent also entered appearance through a Counsel of his choice namely learned Counsel M/s. Anandaramani and R. Srinivasan. We heard the arguments of respective learned Counsel appearing for the parties.

There is no pale of controversy that the complainant effected purchase of silk sarees, five in number-one bridal saree worth Rs. 6,000/-, four other sarees to be presented to his relations, the value being two sarees Rs. 2,500/- each, one saree Rs. 2,200/- and another saree Rs. 2,050/- and a skirt piece worth Rs. 400/-, all totalling to Rs. 15,650/-. It is also not in dispute that the opposite party refunded the price of the bridal saree namely Rs. 6,000/- to the complainant on their representation that the said saree was not of a pure silk of Kancheepuram variety.

THE dispute between the complainant and the opposite party is in relation to the refund of the price of the four sarees and skirt valued at Rs. 9,650/-. According to the complainant, he is entitled to the refund of the entirety of the amount of Rs. 9,650/- inasmuch as the sarees and the skirt piece thereof were not pure silk of Kancheepuram varieties. On the other hand it is the case of the opposite party that they were prepared to take back the sarees which were unused and refund the price of such unused sarees. THE opposite party would further contend that two of the sarees were used, and therefore, they cannot at all be mulcted with liability for the refund of their price. THE Forum below accepted the contention of the opposite party and minuted the operative portion of its order as below : "In the result, this complaint is allowed in part directing the opposite parties to refund the cost of the unused sarees and one full skirt together with interest at the rate of 18% per annum on the value of those sarees from the date of this complaint till realisation. THE opposite parties are also directed to pay a sum of Rs. 500/- towards cost of this complaint. Time for payment one month from the date of this order. This complaint in other respects is dismissed."

The operative portion of the order as reflected above, we are of the view is incapable of execution on the facts and in the circumstances of the case. The reasons are rather obvious. The xerox copy of the bill had been marked as Ex. A1. A perusal of the said bill will reveal the details as respects the price relatable to the purchase of the sarees and the skirt. In the bill, it is specifically mentioned that the value of bridal saree was Rs. 6,000/-, about which there is no dispute at all in the sense of refund of the price having been effected by the opposite party to the complainant. This dispute arises only for the refund of the price of other four sarees and the skirt. The bill reveals that two sarees were each priced at Rs. 2,500/-. Yet another saree is priced at Rs. 2,200/-. The other saree was priced at Rs. 2,050/-. The skirt was priced at Rs. 400/-. There is no material worth the name available on record to point out which of the four sarees were used by the complainant and which of being unused. If the price of the four sarees is one and the same, there might not be any difficulty in executing the order as passed by the Forum below. As already pointed out the price of the sarees varies. The opposite party not having taken any stand specifically in their version as respects the value of the used sarees. We can safely take the view which is favourable to the consumer in the sense of two sarees having been used were the sarees which were priced at the lowest. Going by such guidelines, the value of unused two sarees, we can safely take it for granted namely Rs. 2,500/- and Rs. 2,500/-, all totalling to Rs. 5,000/-. With regard to the skirt is concerned, there is no problem at all. In such circumstances, it is incumbent upon the opposite party to make a refund of Rs. 5,400/- to the complainant on the production of those two unused sarees and the skirt piece. The order of the Forum below as such requires to be modified in the manner we have indicated above and we accordingly do so.

THE Forum below also awarded interest at the rate of 18% per annum on the value of the sarees and the skirt from the date of the complaint till realisation. THE rate of interest so awarded rather appears to be reasonable calling for no interference. We, however, make it crystal clear that the said rate of interest is payable by the opposite party from the date of the complaint till its realisation on the amount of Rs. 5,400/-. The Forum below also awarded cost in a sum of Rs. 500/- which we feel is reasonable on the facts and in the circumstances of the case not calling for interference. In fine, the order of the Forum below is modified to the extent as indicated above and the appeal shall stand dismissed in other respects. We, however, make no order as to costs on the facts and in the circumstances of the case. We also make it crystal clear that the order of the Forum below as modified by us is required to be complied with by the opposite party within a month from the date of receipt of our order or otherwise the complainant will be at liberty to invoke the provisions as adumbrated under Section 27 of the Act. Appeal dismissed.