RAJ KUMARI vs NOVELTY RADIOS And WATCH EXPERTS

THIS order will dispose of the above Compensation Application under Section 12-B of the Monopolies and Restrictive Trade Practices Act, 1969. The applicant had filed the compensation application on 5th July, 1996 stating as under; "That I purchased one refrigerator chassis No. 11213407505/90200174 namely Kelvina- tor from M/s. Novelty Radios and Watch Experts, 77, Sarojini Nagar Market-, New Delhi-23 on hard cash vide their memo number 321 dated 31.12.1993 (a copy of cash meinois enclosed). After the payment of Rs. 11,500/- (Eleven thousand and five hundred only) the above said dealer has supplied me the refrigerator on 18.1.1994 vide bill number 1564 for Rs. 11,700/-. I had complained the above noted dealer several times but not found any satisfactory response from him. 1 think the refrigerator sold to me is not of a good quality. Vide my complaint number 5651 dated 15.7.1994. The refrigerator was also kept for one month in their workshop but the problem is still not working properly. In this way, I have suffered a great mental agony. In this connection it is humbly requested that you may kindly ask the dealer to change the refrigerator with hew one or to pay the aforesaid amount of Rs. 11,700/- with 18% annual interest."

THE notice was issued to all the parties on 30.9.1996 returnable on 15.10.1996. This notice was received by R-1 vide the acknowledgement placed on record. However, R-3 appeared before the Commission and took time to file the reply. THEreafter again the notice was issued to R-1 and R- 2 on several dates but nobody appeared on behalf of R-1 and R-2. THE Notice "Dasti" were also served by the applicant to R-l and R-2 on 15.11.1996 and the memorandum of service alongwith affidavit was submitted to the Commission which is placed on record. Thus inspite of several opportunities given, the Commission treated the proceeding against R-1 and R-2 as ex parte. THE reply of R-3 was placed on record. THE issues were framed on 5.12.1997 as under: 1. Whether the compensation application is not maintainable for the preliminary objections taken by R-3 ? 2. Whether the respondents have indulged in or are indulging in the unfair trade practices alleged in the CA? Whether the applicant has suffered any loss or damage as a consequence of the alleged unfair trade practices ?

Relief. 3. All the parties were given the opportunity to file the affidavit of reliances and counter affidavit of reliances. Only the applicant and R-3 filed the above. There was no response from R-1 and R-2. 4. The case came up for final arguments on 4.5.1998. Subsequently R-3 took time to file the counter affidavit which was granted and the case was again fixed for final arguments on 14.8.1998. On this date the applicant was present in person. R- 3 was represented by Mr. Jagdish Kishore as Proxy for Ms. Rekha Gupta. There was no representation from R-1 and R-2. The first issue framed was whether the application was maintainable against R-3? The contention of R-3 was that no complaint was made against R-3 in the complaint filed by the applicant, and, therefore, R-3 should not be made a party. It was also pointed out by R-3 that no complaint was directly made to R-3 earlier. Thus according to R-3 since no allegation is made against R-3, R-3 should not be made a necessary party. Therefore, there is no cogent reason given in the affidavit or the complaint or even in the synopsis by the applicant which shows that R-3 is a necessary party to the complaint. Thus, we are of the view that R-3 cannot be made a party to the above complaint. Therefore, the complaint is not maintainable against R-3. In view of the above the first issue is answered in favour of R-3 and against the complainant.

SO far as the other issues are concerned, they will relate to R-1 and R-2. R-1 and R-2 are treated as ex parte having not replied to the allegations as well as to the affidavit of evidences filed by the applicant. The applicant has purchased the refrigerator from R-l on 18.1.1994 vide cash memo No. 1564 and submitted by the applicant as evidence. Similarly the money received by R-l on 31.12.1993 vide receipt No. 321 is also submitted as evidenced. It is pointed out by the applicant that within 6 months of the purchase the refrigerator developed fault and the complaint was lodged with R-l who took the refrigerator and kept it for a month and returned back to the applicant. Even then the refrigerator was not working properly. The guarantee period was for one year. Therefore, this fault occurred much within the guarantee period. All these evidences were never refuted by R-l from whom the refrigerator was purchased and who had installed it. Therefore, the balance of convenience is in favour of the applicant. Thus, we are of the view that the respondent No. 1 has indulged in unfair trade practices as alleged in the compensation application under the MRTP Act, 1969. Therefore, the issues are in favour of the applicant and against the R-1 and R-2. The applicant has demanded the replacement of the refrigerator or refund of money with 18% annual interest. Since the allegation is against R-1 who has supplied the refrigerator and who has collected the money from the applicant vide receipt quoted above, it will be proper that the money is refunded by R-l who has received it from the applicant. The applicant has also relied upon the decision of this Commission in UTPE No. 293/ 87 dated 25.10.1988 and also on the decision of the Consumer Forum. We are of the view that the R-1 has indulged in unfair trade practices as mentioned above and, therefore, is liable to either replace the refrigerator or return the money with interest. Therefore, the respondent No. 1 is directed to return the money of Rs. 11,700/- with interest at the rate of 18% per annum from 18.1.1994 till the date of payment, to the applicant within 8 weeks from the date of this order and file the memorandum of compliance within 4 weeks thereafter. The applicant will return the refrigerator supplied by R-1. The applicant has also prayed for mental agony and other relief. Since the applicant has got sufficient interest over the money paid to R-1, we do not feel it necessary to grant other relief. There will be no order as to cost to either of the party. This order is pronounced in the open Court on . Complaint disposed of. ______________