NAMRATA ASHOK KUMAR JAIN vs INDUSTRIAL ENGINEERS

THIS is an appeal against the order of the District Forum, Nagpur dated 16.12.91 dismissing the Complaint of Appellant Bearing No. 21/91. The appellant had filed a complaint before the District Forum, Nagpur alleging that the domestic flour mill purchased by her from the respondent was defective. She also complained that while purchasing the flour mill on 30.11.90 for a consideration of Rs. 5,940/- made no proper receipt was passed by the respondent and, therefore, she had approach the police. She further alleged that due to the help of the police, she could obtain the receipt from the opposite party for the payment of balance amount of Rs. 5,940/-on 7.12.90. The claim of the appellant was opposed by the respondent on the ground that the machine was not defective and the complaint was not maintainable. It is found from the record that the District Forum, Nagpur had appointed the Commissioner to examine the working of the flour mill in question which was in possession of the respondent. The Commissioner visited the premises of respondent in presence of both the parties and their lawyers and had taken the trial of its working. The Commissioner, Shri G.V. Agrawal, Advocate in his report has stated the working of flour mill was not proper as per the condition of sale mentioned by non-applicant. However, the District Forum rejected the complaint of the appellant on the finding that there was no deficiency on the part of any opposite party and consequently, no loss was caused to the complainant.

THE appeal was fixed for final hearing on 3.2.92. Both the parties were noticed on the date of hearing. Appellant''s agent was present and was heard. Respondent was sent a notice of Registered Post Acknowledgement Due which was received on 20.1.92. Despite the receipt of the notice about the hearing of this appeal, the respondent remained absent on the date of hearing. We therefore, heard the appellant. We find from the records of this case that the complainant had alleged defect in the goods i.e. the ''flour mill''. The facts alleged do not disclose that it was a complaint about the deficiency in the service of the opposite party. However, the learned District Forum, Nagpur framed issue No. 1 about the deficiency on the part of the opposite party. In fact, the issue should have been regarding the defect in the good supplied to the complainant. It is, therefore, very obvious that the District Forum misdirected itself as regards the issues involved in this complaint and came to a wrong finding. It is found from the record that the allegations were in the nature of showing the defect in the flour mill purchased by the complainant from the opposite party. The Commissioner was appointed by the learned District Forum but nowhere the flour mill in question was defective or not is stated. The report of the Commissioner on record which clearly indicated that the flour mill was not properly working. The demonstration of the flour mill was made in the presence of both the parties. We fail to note when the Commissioner''s report clearly indicated the flour mill was not working properly, the allegations of the complainant regarding the defect in the goods stands corroborated. In our view, considering the allegations and the report of the Commissioner, the complainant has successfully established that she was sold a defective good by the opposite party. We find from the record that the complainant had to approach the police to get receipt for assistance as regards the treatment given to her by the opposite party. Under these circumstances, we are of the view that the dismissal of the complaint by the District Forum is not correct. It is contrary to the material on record. We therefore, allow this appeal and pass the following order:- ORDER

The appeal is allowed. The impugned order is set aside. We direct the respondent to refund Rs. 5,940/- to the complainant towards the price of the flour mill with interest at the rate of 18% p.a. from 30.11.90 till the amount is realised. The claim of the complainant for damages is rejected, as no material is placed on record, the appellant is also granted Rs. 200/- as costs throughout. The respondent shall refund the amount of Rs. 5,940/- with costs of Rs. 200/- to the complainant within two months from the receipt of this order. Appeal allowed with costs.