KRISHNAN NAIR vs V. SASI NADAR

THE grievance of the appellant who is the first opposite party in OP 91/99 on the file of CDRF, Thiruvananthapuram is that without any iota of evidence the Forum below held that the watch involved suffered from manufacturing defect and it is also contended by the appellant that there was no deficiency in service or default on the part of the appellant.

THE appellant who has come up in appeal challenging the order passed by the Forum below, though appeared after receiving notice before the Forum below has not chosen to file written version or to contest the case. The Forum below on the basis of the evidence adduced by the complainant (he has given evidence as P.W. 1 and also produced Ex. P 1 service clip issued by the appellant herein to the first respondent on 10.10.1998 and Ex. P 2 guarantee card) found that there was manufacturing defect for the watch which was purchased from the appellant by the first respondent on 2.12.1997 for a price of Rs. 1,100/-.

There is no dispute between the parties regarding the purchase of watch involved (watch was manufactured by the 2nd respondent) by the 1st respondent from the appellant on 2.12.1997 for a price of Rs. 1,100/-. From the documentary evidence (Ex. P1) produced by the first respondent before the Forum below it is established that, complaining that the watch was not working (the specific complaint was stoppage of watch), the watch was entrusted with the appellant on 10.10.1998 by the complainant (entrustment was within the period of guarantee) and it is also clear from Ex. P 1 that the entrustment of the watch was for sending the watch to the manufacturer. It is admitted by the complainant that after two months he got a card from the manufacturer to receive the watch back. From the complainant''s evidence it is also proved that at the time of receiving back by him the watch it was working and it is his evidence that after a few days it again stopped to work. Thus Ex. P2 produced by the complainant furnished material to discard his case of repairing the watch by the appellant on the date of entrustment of the watch on 10.10.1998. In fact the watch was entrusted with the appellant to send to the company to effect necessary repairs. So the assertion in the complaint as well as in the evidence of the complainant that on the very same day of returning the watch by the appellant after repairing it, it again stopped to work appears to be not true. Even if it is assumed that assertion made in that behalf by the complainant/1st respondent is true it is not possible to hold that there was deficiency in service on the part of the appellant. The appellant on the very same day received the watch for sending it to the manufacturer for repairing the same. No assertion is made in the complaint or in the evidence of P.W. 1 that there was delay on the part of appellant in sending the watch to the manufacturer.

WE have to point out here that the unwarranted assumption has been made by the Forum below that there was manufacturing defect for the watch and learned Counsel for the appellant is well founded in her submission that without any legally acceptable evidence the Forum below was not justified in reaching such a conclusion. No specific allegation is made in the complaint that watch purchased suffered from manufacturing defect. The watch was not sent to any approved laboratory to ascertain whether it suffered from manufacturing defect or not. No expert evidence is adduced before the Forum below to prove a case that there was manufacturing defect for the watch. Apart from stating the fact in his evidence that the watch stopped to work the complaint has not deposed that watch suffered from manufacturing defect. For other reasons also watch may stop to work. As the watch was repaired by the manufacturer and it was returned by it to the complainant/first respondent the appellant cannot be made liable either for manufacturing defect if any or for deficiency in service, if any, on the part of the manufacturer. So the only course open to us is to exonerate the appellant completely from the liability even though appellant has not chosen to contest the matter. Evidence on record does not justify the conclusion reached by the Forum below regarding the liability of the appellant. If there is any delay on the part of the manufacturer in returning the watch after repair the appellant is not responsible for any such delay and no deficiency in service can be attributed to the appellant. Haphazard and slipshod manner of disposal of the case by the Forum below resulted in passing the order making the appellant also liable for the reliefs granted by it. Since the manufacturer has not preferred any appeal we are not dealing with the sustainability of the finding recorded by the Forum below against it. In the result, the appeal is allowed. The appellant is not liable for any of the reliefs prayed for in the complaint. Since the appellant has not contested the matter before the Forum below we are not awarding cost to the appellant. Appeal allowed.