PREMIER CLIMATE CONTROLS PVT.LTD vs M.PAIS And SONS, GENERAL ENGINEER WORKS

THIS appeal, by Opposite Party No. 2, is directed against the order dated 28.7.1992, passed by the District Forum, D.K. District, Mangalore, in Complaint No. CPA-1000/90-91, directing the appellant-opposite party No. 2, to take back the "air curtains" and refund a sum of Rs. 24,095 /- with interest thereon. The facts, briefly stated, are as follows : 1. The complainant purchased from opposite party No. 2 "air curtains" for a sum of Rs. 24,095/- for his newly renovated business premises at Maidan Road, Mangalore to make it dust and insect proof. The opposite party, installed the air curtains to the premises of the complainant; within a period of one month thereafter it was found that the air curtains were totally ineffective and that dust and insects were as plentiful as before. The complainant requested the opposite parties to rectify the defects, but the opposite parties failed to do so and so he claimed refund of the above amount paid by him for the air curtains and also compensation thereon. Opposite Party No.1, did not dispute the claims and the allegations made by the complainant.

OPPOSITE Party No. 2 filed its version and disputed the allegations contained in the complaint. During enquiry, the complainant did not adduce any evidence either oral or by way of affidavit. The documents produced by the complainant were marked as Exs. C-1 to C-20 and the documents of second opposite party were marked as Exs. R-1 and R-2. The District Forum, appreciating the material placed on record by the parties, allowed the complaint and directed the refund of the price money of the air curtains and also awarded compensation.

We have called for the records and received. We have also heard the learned Counsel for the parties.

WE do not want to go into the merits of the case, as we find a serious infirmity in the proceedings recorded by the District Forum, Mangalore. The complainant filed the complaint on 29.1.1991. The order sheets maintained by the District Forum, show that opposite party No. 2 took further time on 23.4.1992 for filing its version. Opposite party No. 2 filed its version on 26.3.1992. disputing the allegations contained in the complaint. The complaint thereafter was taken up for enquiry on 12.5.1992. The order sheet dated 12.5.1992 reads as under: "Both parties present. Exs. C-1 to C-20 and R-1 and R-2 marked by consent. Heard. For orders."

The orders were pronounced on 28.7.1992.

IT is clear from the proceedings recorded by the District Forum, that the complainant did not lead any evidence not filed affidavit by way of evidence. Even the complaint filed by the complainant does not find any verification of the facts contained therein. So the District Forum, even though the allegations contained in the complaint were disputed by the opposite party, proceeded to record its finding without any evidence placed on record by the complainant. The provisions under Section 13(2) of the Consumer Protection Act, 1986, read as under: "13(2) The District Forum shall, if the complaint received by it under Section 12 relates to goods in respect of which the procedure specified in Sub-section (1) cannot be followed, or if the complaint relates to any services,- (a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum; (b) where the opposite party, on receipt of the copy of the complaint, referred to him under Clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the Dist. Forum, the District Forum, shall proceed to settle the consumer dispute,- (i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or (ii) on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum."

A reading of the provisions would go to show that the District Forum has to base its finding on the evidence brought to its notice by the parties. The provisions would further go to show that even if the opposite party fails to take any action to represent his case, the District Forum, has to act on the basis of the evidence brought to its notice by the complainant particularly so where the opposite party has disputed the allegations contained in the complaint. Therefore, the finding recorded by the District Forum, is clearly erroneous and unsustainable. ORDER

IN the Result, therefore, this appeal is allowed and the order dated 28.7.1992, passed by the District Forum, D.K. District, Mangalore, in Complaint No. CPA-1000/90-91, is set aside. The complaint is remitted to the District Forum, D.K. District, Mangalore, with a direction to register the same on its original number and dispose it off in accordance with law. The parties are directed to bear and pay their own costs in this appeal. Appeal allowed.