KUM.NIRMALA B.KANKONKAR vs VIRANI SALES CORPORATION

THIS appeal is directed against the order passed by the District Forum, North Goa, dated 4.10.1999, in Complaint No. 29/97, whereby the appellant''s complaint was dismissed.

IT was the appellant''s case that she has undergone training in embroidery and stitching and for that purpose, on 7.2.1996, to start her own work she purchased a Singer Rotamatic Ultra Plus Sewing Machine from the respondents for an amount of Rs. 7,600/-. However, on the very date of the installation of the machine, it started malfunctioning and various complaints were filed with the respondents. Even after carrying out necessary repairs, the said machine could not give full services. Therefore, the machine was taken to the respondents for repairs but after keeping the machine for over a month, the respondents returned the machine without hinges as a result whereof it could not be fixed and be used/operated till the filing of the complaint. Various requests were made to the respondents to instal the machine but the respondents failed and neglected to oblige. A legal notice was served on 17.1.1997 but in spite of that the respondents did not care to instal the machine nor reply to her notice. We have gone through the records and considered the oral submissions of the learned Counsel as well as the written arguments of the respondent. We have perused the impugned order and, in our view, there is no case for interference on our part with the order under challenge. We have noted that, on remand from the Commission, the learned Forum gave to the appellant an opportunity to indicate the name of an expert to examine the machine and opine as to whether the same was suffering from any manufacturing defects. The record shows that the name indicated by the appellant was not acceptable to the respondents and as such a prayer was made to the Forum to appoint an expert of its choice. Thereupon, in spite of an opportunity was given to the appellant to remain present so as to enable the Forum to finalise the appointment of an expert, the appellant chose to remain absent and no justification was produced on her failure to put up her appearance in compliance with the directions of the Forum. In the circumstances, we are satisfied that the learned Forum had no other choice rather than to dismiss the complaint for want of prosection since the case had been remanded to enable the appellant to bring home some material evidence through an expert to substantiate her claim that the suit machine was structurally defective. Such proof could not be made for the simple reason that the appellant was negligent in assisting the Court in appointing an expert on the matter. It is obvious that without the active assistance of the appellant and the respondents the Court was not required to take any initiative or further steps in this regard. The remand from the Commission was done in order to afford the appellant an opportunity to lead additional evidence on her behalf so as to enable her to establish substantially her grievances on the strength of expert evidence. The appellant seems to have lost either interest or initiative to satisfy the Commission''s directives and, therefore, the learned Forum was right in dismissing the complaint for lack of proof on the matter so much so the Forum was obviously at loss with regard to reliable evidence in order to adjudicate the case on merits.

The second ground advanced by the Forum to disallow the complaint on account of the appellant''s failure to implead the manufacturer of the machine so as to enable the Court to grant an effective relief, if any, on the prayer made for the replacement of the machine or refund of its cost is also certainly well conceived and need not be disturbed by this Commission in exercise of its appellate jurisdiction. Indeed, we do not find any infirmity in respect of such finding nor are we prepared to hold it as wrong, perverse or unjudicious.

IN this view of the matter, the appeal is bound to fail and is hereby dismissed with, however, no order as to costs. Order accordingly Appeal dismissed.