KOOL CONTROLS vs YOGESH CHANDER

THE present appeal is directed against the order dated 15.9.2000 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter referred to as the District Forum-II) in Complaint Case No. 174 of 2000. Briefly stated the facts as under :

THE respondent/complainant Mr. Yogesh Chander, resident of 3045, Sector 41-D, Chandigarh in the second week of September, 1999 gave a Semi Automatic Washing Machine at the Shop No. 14 of appellant under the name and style of M/s. Kool Controls, Shop No. 14, Sector 41-D, Badheri, Badheri Market, Chandigarh. THE appellant told the respondent/complainant that the machine required rewinding and same would be repaired within 2-3 days. An amount of Rs. 915/- was agreed to be paid by both the parties towards the rewinding charges. As per averments made by complainant/respondent the machine was not repaired on the promised date. THE complainant/respondent has further averred that when his wife visited the appellant''s shop on many subsequent dates it was still not repaired consequently it kept lying in the shop of the appellant. THE respondent/complainant has placed on record a Cash Memo/Bill dated 2.11.1999 bearing No. 575 (though the machine was handed over for repairing in September, 1999). THE complainant further states that appellant on 13.2.2000 came to his house and asked him to take the machine. When the complainant/respondent went to the shop he noticed that the machine allegedly presented an ugly and worn out look, consequent to which the respondent/complainant refused to take the delivery of the same and the present complaint was instituted in the District Forum-II. THE respondent/complainant has alleged that due to above stated deficient services of the appellant, his wife being an anaesthesia patient suffered attacks due to the exhaustion of washing clothes and he had to pay a lot of money to the servant to get his washing done. THE complainant/respondent has averred, inter alia, that he did undergo agonies and mental tension for a period of four and a half months for which he has prayed to be suitably compensated. The O.P./appellant, Mr. Rakesh Kumar in the written statement dated nil filed on 2.5.2000 as per office record, has submitted, inter alia, that the washing machine given by the complainant for repairs in the first week of July, 1999. The inner body made of plastic was eaten by the rats and was not in good condition. The O.P./appellant has further alleged that the upper part of the internal wall of the machine was pasted with adhesive at many places. The machine required rewinding and Rs. 915/- inclusive of labour charges were agreed upon by both the parties. The O.P./appellant has averred that the machine was duly repaired within 4 - 5 days. The complainant''s wife Mrs. Yogita came to his shop but since she did not pay the money, the machine could not be delivered to her. The appellant/O.P. has denied the averment of the complainant about his (O.P.) having visited the complainant/respondent and asked to take the machine after paying the charges of Rs. 915/-. On 2.11.1999, the appellant further alleged that the respondent/complainant secured a bill of Rs. 915/- on the plea of getting the same reimbursed but the machine was not returned due to the non-payment of charges on that date even.

During the proceedings in the District Forum-II on 26.7.2000, the O.P. was ordered to bring the machine to the Forum for examination. It was brought on 31.8.2000 and the District Forum-II observed the drum to be in a damaged condition. The District Forum held that the damage to the machine must have been caused while at the shop of O.P./appellant because had it been given in such a bad condition, the O.P./appellant would have certainly mentioned the same in the memo. On that count the O.P./appellant was held to be deficient in service and liable to compensate the complainant/respondent by paying Rs. 6,000/- towards the cost of machine. The District Forum further on the point of payment of Rs. 915/- having been paid to the complainant/respondent or not, came to the conclusion that the charges would not have been paid by the complainant otherwise the shopkeeper had no reason to retain the machine. Hence the repair charges of Rs. 915/- were deducted from the costs of the machine assessed at Rs. 6,000/- and balance of Rs. 5,085/- was ordered to be paid to the complainant/respondent within one month.

AGGRIEVED against the above order this appeal under Section 15 of Consumer Protection Act, 1986 read with Rule 8 has been preferred by the O.P. on the grounds stated as under : That the District Forum-II has erred in coming to the conclusion that the machine was in a good condition at the time it was given to O.P./appellant for repairs as otherwise the O.P./appellant would have written about the bad condition of the machine on the memo. The appellant has submitted that since the memo was issued on 2.11.1999 while the machine was given earlier in September, 1999 it was not possible for the appellant to describe the defects at such a later date. The finding of the District Forum-II on the condition of the machine has been assailed as presumptive and not based on the evidence and facts. The appellant has further submitted that the order of the District Forum-II is wrong inasmuch as giving a finding that the complainant refused to take the delivery due to the damage caused by the appellant. The appellant has stated that this finding to be neither based on pleading nor affidavit. Further the appellant has submitted that the value of 9-10 years old machine assessed at Rs. 6,000/- by the District Forum-II is too much on the excessive side, hence the prayer to set aside the impugned order on the grounds stated above.

WE have gone through the record of the case in the District Forum-II and also the impugned order. WE have also perused the contentions of the Counsels of both the parties. Regarding the condition of the machine having been damaged while at the premises of O.P., the District Forum was justified on the basis of facts and evidence in holding that the machine was in a normal condition at the time it was given for repairs as there is nothing on record to show to the contrary. Moreover, washing machine being an electronic gadget in which water has to be used if its body is eaten by the rats and it was joined by adhesive at many places as alleged by the appellant, the use of such an electronic item even after rewinding was hazardous for the respondent/complainant himself. So he would not have thought of using a machine even after rewinding. Accordingly, we find no merit in the ground stated in the appeal. Another plea taken by the appellant, the District Forum-II was not justified in holding that the respondent/complainant refused to accept the delivery of the machine as it was damaged while at the premises of appellant. The appellant has contended that same has nowhere been averred or alleged by the complainant himself anywhere. But a perusal of the complaint and para 5 of the affidavit of the complainant/respondent clearly shows that same has been averred by the complainant and also has been deposed in the affidavit as well. Para 5 of the affidavit reads as under : "That the opposite party instead of repairing the machine has damaged it and the machine could not be lifted due to bad shape and condition."

Hence the District Forum-II has on the basis of averments of both the parties and evidence adduced to prove the rival contentions, rightly held the appellant deficient in services vis-a-vis the respondent/complainant. Further the District Forum-II has rightly held that the payment of rewinding charges not having been made by the complainant/respondent otherwise there was no reason for the O.P./appellant to retain the machine. On the basis of reasons stated above, we find no merit in the appeal and the order of the District Forum-II is upheld. The appeal is dismissed. Copies of the order be supplied to the parties free of charges. Appeal dismissed.