M.L.M.MOHAMMED LEBBAI vs MANI RAJ And CO.

THIS appeal is directed against the order dated 8.9.1997 in O.P. No. 55/97 on the file of the District Consumer Disputes Redressal Forum, Tirunelveli.

THE appellant is the complainant while the respondents are the opposite parties. Short facts may be related in order to understand the crux of the issue arising for consideration.

The complainant it is said purchased a wet grinder on 13.1.1996 for a sum of Rs. 2,755/- from the 1st opposite party dealer which is the branch office of the 2nd opposite party, a head office. According to the complainant, the grinder so purchased was not functioning properly right from the date of purchase. A guarantee was given for a period of one year for the proper functioning of the wet grinder. The complainant as a matter of fact had sent communications to the 1st opposite party on 10.11.1996 and 14.12.1996 stating that the wet grinder was not functioning properly and the same may be attended to. Only in response to the letter dated 14.12.1996, he would say a mechanic from the 1st opposite party came and attended to the repairs. The defect persisted. Again on 27.2.1997 a registered letter had been sent to the 1st opposite party. The registered letter so sent was returned to the complainant as not served on the ground that it was not claimed.

SINCE the wet grinder so purchased was not functioning properly, it is incumbent on the opposite parties to replace the wet grinder sold to them by a new wet grinder. The non-replacement of the wet grinder, he would say, would tantamount to deficiency in service on the part of the opposite parties. On 17.3.1997, the complainant also caused a lawyer''s notice to be served on the complainant 1st opposite party which elicited a reply notice dated 14.4.1997. In such a backdrop and setting, he would knock at the doors of the Forum below for certain reliefs as prayed for in the complaint.

THE opposite parties in pith and substance would contend that the complaint as filed is bad for non-joinder of necessary and requisite party. THEy are only the dealers and the non-impleading of the manufacturer of the grinder is a vital defect fatal to the complaint in the sense of the same being dismissed for such a defect. To say as has been said by the complainant that two communications were sent, one on 10.11.1996 and another on 14.12.1996 were shorn of reality of situation. THEre was no manufacturing defect at all in the grinders sold to the complainant. Of course, true it is a guarantee for a period of one year was given. THE defect had been complained of only after the elapse of the period of one year. As such, there is no deficiency in service on their part. THE complaint is, therefore, liable to be dismissed. The Forum below after taking into consideration the materials placed on record recorded a finding that there was no deficiency in service on the part of the opposite parties and consequently dismissed the complaint with cost of Rs. 500/-. Aggrieved by the order of the Forum below as above, the complainant resorted to the present action by engaging a Counsel of his choice namely learned Counsel M/s. P. Peppin Fernando and S. John Sundarlal Suresh. On service of process, the opposite parties engaged a Counsel of their choice, namely learned Counsel M/s. J. Pothiraj and N. Nithyanandam.

WHEN the matter came up for hearing before us today, learned Counsels appearing for the respondents/ opposite parties were called absent and no representation is made on their behalf. We are however inclined to dispose of the appeal on merits of course after hearing the arguments of learned Counsel Mr. Edwin Jayakumar representing learned Counsel M/s. P. Peppin Fernando and S.John Sundarlal Suresh appearing for the appellant/complainant and on perusal of the materials placed on record.

FROM the pith and submission of the said learned Counsel and on perusal of the materials placed on record, the one and only question that crops up for consideration is as to whether the order of the Forum below is sustainable in law on the facts and in the circumstances of the case. Even at the outset, we may point out that there are absolutely no merits in the appeal. No doubt true it is that the 1st opposite party dealer effected a sale of the wet grinder for consideration by the complainant on 13.1.1996 giving a period of warranty for one year. Absolutely no materials were placed on record to point out that as a matter of fact the complainant complained of the defects in the wet grinder during the warranty period of one year. No doubt, he would claim that he would send two letters, namely Ex. A3 dated 10.11.1996 and Ex. A4 dated 14.12.1996 within the period of warranty complaining of defects in the wet grinder purchased from the last opposite party. The lst opposite party would however deny the receipt of such letters. Such being the case, it is incumbent upon the complainant to prove that the said communications under Exs. A3 and A4 were in fact despatched to the complainant 1st opposite party. No such proof had been filed by the complainant. In such circumstances, it cannot at all be stated that the complainant sent those two communications to the 1st opposite party complaining of defects in the wet grinder purchased. These things apart, the complainant would allege by way of incorporation of averments in the complaint that the wet grinder he purchased from the 1st opposite party was suffering from all sorts of defects right from the inception. This sort of an averment in the complaint is not getting even the solidified support from the so-called letter marked as Ex. A3 dated 10.11.1996. If really, the wet grinder so purchased was giving lot of trouble right from the inception, he would not have forgotten to mention such aspects of the matter in the first letter under Ex. A3 sent to the 1st opposite party. For the sake of emphasis, we may reiterate and state that already we have come to the conclusion that the complainant had miserably failed in making it appear to the Court that in fact he despatched the letters under Exs. A3 and A4 to the 1st opposite party.

Of course, the registered letter dated 27.2.1997 sent to the 1st opposite party marked as Ex. A5 had not been served on the ground of the same had been unclaimed by the said opposite party notwithstanding the fact that the registered letter had been properly addressed to the 1st opposite party. The fact that the registered letter had been returned as unclaimed is proof positive of the fact that the 1st opposite party had knowledge of the contents of the letter. Even if he had knowledge of the contents of the letter under Ex. A5, we are of the view that the said letter under Ex. A5 is not in any way expected to render any sort of a helping hand to the complainant/appellant in advancing his case to any extent whatever. The reason is this. The registered letter itself is dated 27.2.1997. The guarantee period is already over by 12.1.1997. Such being the case, if any defect occurs to the wet grinder long subsequent to the period of warranty, then the complainant has to effect repairs to the wet grinder so purchased by incurring the necessary and requisite cost by himself. All these aspects of the matter had been duly taken into consideration by the Forum below in dismissing the complaint with cost of Rs. 500/-. Such dismissal, we rather feel, cannot at all be found fault with on the facts and in the circumstances of the case.

THE appeal as such deserves to be dismissed. In fine, the appeal fails and the same is dismissed. We, however, make no order as to costs on the facts and in the circumstances of the case. Appeal dismissed.