M.J.ABRAHAM vs ANGEL AGENCIES

COMPLAINT in O.P. 570/94 on the file of the Consumer Disputes Redressal Forum, Alappuzha is the appellant. His grievance was that he purchased a fridge from the first opposite party manufactured by the second opposite party became defective soon after the purchase. He complained to the first opposite party as regards the said defect, though the mechanic of the first opposite party attended the repair, inspite of the same the fridge continued to be defective. He wanted replacement of the defective fridge and incidental reliefs. The complaint was once disposed of by the District Forum. Against the order passed by the District Forum two appeals were preferred. Appeal No. 365/96 and Appeal No. 373/96. By the order in these, this Commission remitted the matter to the District Forum for fresh disposal after considering the evidence tendered by both the opposite parties. After the remand the first opposite party filed version in which the first opposite party sought to maintain that the fridge was received by the mechanic and the same was sent on 7.11.1994 to the Company after repairs. The complainant was informed to take delivery of the fridge but the complainant did not take delivery of the fridge in time instead he filed the complaint. However on 9.12.1994 the complainant took delivery of the fridge and executed acknowledgement on 9.12.1994. After a lapse of one and half years the complainant demanded replacement of the fridge. It was sought to be maintained by the opposite party that there is no defect in the fridge and the complainant is not entitled to replacement. Separate versions filed by the second and third opposite parties also raised contentions against the allegation by the complainant that the fridge was defective and that he is entitled to replacement of the fridge. On the side of the complainant Exts. A1 to A15 were produced and on the side of the opposite parties Exts. R1 to R4 were produced. Complainant gave evidence as P.W. 1. R.W. 1 was examined on behalf of the first opposite party. On a consideration of the said material the District Forum dismissed the complaint. Aggrieved by the said dismissal as noted the complainant has come up in appeal.

THE agent of the complainant maintained that the very discussion of the District Forum is faulty because Ext. A16 dated 3.12.1994 itself would demonstrate that Ext. R1 endorsement was the result of coercion and undue influence. THErefore, no reliance could have been made on Ext. R1. THE agent also made reliance on a letter which he allegedly issued to the opposite parties on 29.11.1994. According to him the letter dated 29.11.1994 as well as Ext. A6 letter would reveal that Ext. R1 endorsement was not voluntarily made by the complainant and, therefore, Ext. R1 is vitiated. THE agent of the complainant thus wanted the appeal to be allowed. On the other hand the learned Counsel of the respondent sought to support the dismissal by maintaining, the whole conduct of the complainant in relation to the repair is inconsistent with present submission on behalf of the complainant that Ext. R1 was not executed voluntarily. It is submitted that if actually the complainant was compelled to execute Ext. R1 endorsement he should have made use of the first opportunity to speak out how and under what circumstance Ext. R1 came to be issued. He did not say anything of compulsion or duress in executing Ext. R1 when he gave evidence as P.W. 1. R.W. 1 the opposite party when was examined proved Ext. R1 endorsement in his chief examination inspite of that nothing was asked in the cross examination challenging Ext. R1. No suggestion was also made to him that Ext. R1 endorsement came to be made because of the duress and compulsion made by the opposite parties. Thus the initial burden to prove that Ext. R1 endorsement is vitiated is not discharged. THE agent referred us to a letter dated 29.11.1994 wherein the complainant among other things mentioned that he is not willing to give an endorsement to the effect that the fridge is in good condition. What is to be noted is, unilateral statement by the complainant has to be tested against the other circumstance that appears in the evidence. Before going into that aspect it will be convenient to note what he has stated in Ext. R1. He said that at the time of taking delivery, on inspection the unit found in good condition and working order. P.W. 1 admitted that he made such an endorsement and signed the same. This admission came in the cross examination, even then he did not say that he was compelled to make such an endorsement. In appreciating the effect of the letter now placed before us certain factors have to be taken into account. The complaint was filed on 18.11.1994. Ext. A16 letter dated 3.12.1994 requiring the complainant to make a statement to the effect that at the time of taking delivery, on inspection the unit was found in good condition and working order. It is submitted that it was pursuant to Ext. A16 he came to make the Ext. R1 endorsement on 9.12.1994. As a matter of fact complaint was filed for direction to pay compensation on 29.11.1995; that means on the date when Ext. A16 letter as issued the complaint was pending. As a matter of fact Ext. R1 endorsement too was made while the complaint was pending. If as a matter of fact the complainant was compelled to make Ext. R1 endorsement on account of Ext. A16, he should have represented before the Forum, he did not do that. Ext. R1 was proved by Ext. R.W. 1.

When vitiating circumstance is alleged against an endorsement or a document, the burden is on the person who alleged so. As already noted, even the complainant did not have a case like that when he entered the box. Adding to this, what was in issue being the condition of the fridge; since the complainant wanted to maintain that the fridge was defective and hence wanted replacement, the defect must be such that it should be manufacturing defect. Inspite of making such a case he did not take out any commission to prove the said defect. Thus there was no circumstance in support of the claim made by the complainant. The dismissal by the District Forum thus cannot be called in question at the instance of the complainant/appellant. We see no merit in the appeal, appeal fails and the same is dismissed. However in the circumstance of the case there will be no order as to costs. Appeal dismissed.