MADRAS AUTO SERVICE, HUBLI vs VISHAL AUTOMOBILES

THIS appeal is directed against the order dated 27.9.1990 passed by the District Forum, Belgaum in Complaint No. 9/1990 on its file.

IT arises in this way : - Respondent No. 1 purchased ABC Bearing No. 580/572 on 9.2.1987 from the Appellant for Rs. 254.25. He also purchased other automobile spare parts on that day. All of them were packed and delivered to him on the assurance that the said Bearing is in perfect condition. After taking them to Belgaum and opening the package, Respondent No. 1 found that the said Bearing had a crack in the ''Jail''. As the Appellant refused to replace the said Bearing, he filed a complaint before the District Forum for refund of the cost price of the said Bearing and damages of Rs. 3,000/-. The complaint was resisted by the appellant by contending inter-alia that the said Bearing has been used by the complainant for 14 months before asking for replacement; that he had supplied a defect free Ball Bearing to the complainant and that the complainant has not suffered damages of Rs. 3,000/-.

On the date of enquiry the opponent and his Counsel remained absent. Hence the opponent was placed ex parte. The evidence of the complainant was recorded and Exhibit P1 to P10 were marked. On the said material, the District Forum reached the conclusion, that the Ball Bearing was defective and directed the opponent (Appellant) to pay Rs. 1,150/- to the complainant together with interest at the rate of 12% per annum from 9.2.1987 till the date of payment and costs of Rs. 200/-. Hence this Appeal by the opponent.

WHEN the appeal was taken up for hearing, Respondent No. 1 was absent. Nobody appeared on behalf of Respondent No. 1. Hence we heard the appellant''s Counsel and perused the records. Smt. Joshi, learned Counsel for the appellant urged that as a relation of the opponent (Appellant) had expired on the date of hearing before the Forum and as his Counsel was engaged in another Court, they could not be present when the case was called before the District Forum and so the ex parte order may be set aside and the matter may be remitted to the Lower Court for disposal according to law, after giving an opportunity to the appellant to adduce his evidence.

THE appellant has filed an affidavit along with the appeal memo to the effect that on 20.7.1990 at 12.00 Noon when his complaint was posted for hearing, he had informed his Counsel over the phone to seek adjournment as a near relation of his had expired and that he understands that his Counsel was engaged before the Hon''ble III Munsiff Court in HRC No. 222/1988 and therefore they were not able to appear before the District Forum on that day. THE said fact has not been denied by Respondent No. 1. Hence, we see no reason to discard the said swom statement of the appellant. In view of this material, we are satisfied that the appellant was prevented by sufficient cause from appearing before the District Forum on the date of hearing. Under the circumstances, we think it proper to set aside the ex parte order of the District Forum and remit the matter to District Forum for fresh disposal after giving an opportunity to the appellant to adduce evidence and after hearing. In the result, the appeal is allowed and the Order of the District Forum dated 20.7.1990 is set aside and the matter is remanded to the District Forum for fresh disposal after giving an opportunity to the Appellant and after hearing both sides. No costs. Appeal allowed. _____________