RAMESH KOHLI vs EI POWER ENGINEERS

THIS appeal has been filed against the order of State Forum-III, Janak Puri, New Delhi, dated 20.1.1998, passed in Complaint Case No. 265/1997 entitled Shri Ramesh Kohli v. M/s. EI Power Engineers & Ors.

THE brief facts, necessary for deciding the present appeal are, that the appellant had purchased an inverter for Rs. 13,500/- from respondent No. 1, a partnership firm, on 24.4.1996. At the time of placing the order, the respondents Nos. 2 and 3 had represented to be the partners of respondent No. 1. THE inverter and the batteries purchased from respondent No. 1, had been installed at the residence of the appellant on 30.4.1996. Since the said inverter had worked satisfactorily for about a month, the appellant had placed an order for the installation of 625 KVA inverter at the residence of his brother, namely, Shri Rajesh Kohli at C-42, Gujranwala Apartments, Vikas Puri, New Delhi. As such the said inverter was installed at the premises of the brother of the appellant on 13.5.1996 for which a sum of Rs. 6,000/- had been paid by the appellant to the respondent No. 2, Shri Lalit Bhushan at the time of placing the order and balance Rs. 6,000/- at the time of installation of the inverter at the residence of the brother of the appellant on 13.5.1996. THE said inverter however, stopped working and, accordingly, the appellant lodged a complaint with respondent No. 1, through its partner, Shri Arun Khattar, respondent No. 3, who came to the premises of the brother of the appellant and took the inverter for repairs. After two days the appellant and his brother were informed that one component had not been fitted at the time of assembling the inverter and as such the inverter had stopped functiong. A sum of Rs. 750/- was demanded towards the repair charges and, therefore, the appellant had contacted the other partner respondent No. 2, Shri Lalit Bhushan and complained regarding the service charges. THE said respondent No. 2 had assured the appellant that the inverter in question would be replaced within few days. But despite contacting both the respondent Nos. 2 and 3 the inverter was not replaced and as such the appellant served a legal notice on the respondents and since no response was received, the appellant approached the District Forum by filing the present complaint praying for the refund of Rs. 12,000/-, the price paid for the inverter together with compensation of Rs. 5,000/- along with interest @ 18% p.a. from the date of its payment till realization and also claimed cost of Rs. 1,500/-. Respondent No. 2 in its reply/written version, filed before the District Forum had admitted the receipt of Rs. 5,000/- on behalf of respondent No. 1, the partnership firm but had denied the fact that the said amount had been received by him in his personal capacity. However, the delivery of first inverter installed at the premises of the appellant was admitted but the receipt of balance payment of Rs. 8,500/- in respect of the price of the said inverter was denied. It was stated by the respondent No. 2 that since the transaction regarding purchase of the inverter had taken place with respondent No. 3, he had no knowledge of the same. The receipt of payment with regard to the second inverter was totally denied. It was, however, mentioned that the partnership concern i.e. respondent No. 1 had already been dissolved vide Dissolution Deed dated 30.5.1996, a copy of which was placed on record.

Respondent No. 3 in its reply/written version had stated that there was no privity of contract between him and the appellant and that he was never a partner of the partnership firm respondent No. 1 nor had sold any inverter to the appellant and as such had prayed that the complaint be dismissed against him with costs.

THE learned District Forum on the basis of material on record had held that in the presence of contradictory averments made by the complainant in the complaint and in the absence of any proof of payment made for the inverter, complaint filed by the appellant was not maintainable. Aggrieved by the aforesaid order, the appellant has preferred the present appeal before this Commission. We have carefully perused the documents/material on record as well as have heard the arguments advanced on behalf of the appellant at length. Since no one was present on behalf of the respondents, the respondents were directed to be proceeded ex parte vide orders/proceedings dated 29.3.1999. Accordingly, the arguments were heard only on behalf of the appellant and the written submissions submitted on behalf of the appellant were also duly considered.

THE learned District Forum had dismissed the complaint of the appellant on the ground that there were a number of contradictions in the complaint and the appellant had not placed on record any proof of payment in respect of the price of the inverter purchased from the respondents. Furthermore, it was held vide impugned order that the appellant was not a ''consumer'' in respect of the inverter purchased and installed at the house of his brother, Shri Rajesh Kohli. On a perusal of the records of the District Forum, it is apparent that the dispute relates to the second inverter purchased for the amount of Rs. 12,000/- and installed at the premises of the brother of the appellant, namely, Shri Rajesh Kohli. THE said inverter had been purchased by the appellant for the use of his brother and the fact that the appellant had paid the price of the second inverter on behalf of his brother is borne out of and corroborated by the additional affidavit of Shri Rajesh Kohli, brother of the appellant dated 17.9.1999, filed before this Commission and as such the findings of the learned District Forum that the appellant is not a ''consumer'' in respect of the inverter purchased for his brother is without basis. THE other contention of the appellant is that the learned District Forum had erred in holding that there was no proof of purchase of the inverter as the respondents had denied the receipt of the payment in respect of the same. Insofar as the said contention of the appellant is concerned, though the complaint as well as reply/written version filed on behalf of the respondent Nos. 2 and 3 before the District Forum are not happily worded but on perusing the records placed before the District Forum especially the affidavit of the complainant filed by way of his evidence, it is apparent that the appellant had paid Rs. 6,000/- at the time of placing the order of the inverter and balance Rs. 6,000/- at the time of installation at the residence of the brother of the appellant. THE said facts stated on oath by the appellant and his brother Shri Rajesh Kohli in their respective affidavits have not been rebutted by the respondents. Furthermore, the appellant had placed on record the invoice dated 13.5.1996 which records the sale of one 625 KVA inverter with two batteries in favour of Shri Rajesh Kohli, r/o C-44, Gujranwala Apartments, Vikas Puri, New Delhi-110018. THE said invoice bears the name of both the partners, Shri Arun Khattar as well as Shri Lalit Bhushan and the same is signed by the manager of the partnership firm-respondent No. 1 Thus, the sale of the inverter in question stands proved from the said document. Though no proof of payment of the price in respect of the said inverter has been placed on record by the appellant, however, the specific averments made by the appellant regarding the amounts paid together with specific dates on which the payments were made have not been specifically denied by the respondents on oath. In fact, the respondents had been proceeded ex parte before the District Forum as well as before this Commission and as such in the absence of any evidence to the contrary, the facts as stated by the appellant in his affidavit filed before the District Forum as well as the additional affidavit of the brother of the appellant Shri Rajesh Kohli dated 17.9.1999 filed before this Commission, we have no hestitation in coming to the conclusion that the appellant had indeed purchased the inverter in question from the respondents and that the respondents on account of dissolution of the partnership were trying to lay the blame for the transaction on each other. Accordingly, the deficiency in service on the part of the respondents in supplying defective inverter is established and the appellant is entitled to the replacement of the said inverter or in lieu thereto refund of the price paid for the same. The next question which arises for consideration is as to whose liability it is to comply the directions of this Commission. The respondent No. 2 has placed on record a copy of the Dissolution Deed in respect of partnership firm of respondent No. 1 which has been signed by respondent No. 3. Respondent No. 3 has not denied the signature on the said deed nor has denied the existence of the partnership firm prior to its dissolution on 30.5.1996. Respondent No. 2 on the other hand admitted the factum of supplying of inverter to the appellant though he has denied payment made in respect of the same. As such it can be fairly gathered from the documents on record and the reply of respondent Nos. 2 and 3 that respondent Nos. 2 and 3 were both the partners in respondent No. 1 partnership firm on the date of the purchase of the inverter in question i.e. 12/13th May, 1996 as such both the partners are jointly and severally liable either to replace the inverter or refund the price of the inverter i.e. Rs. 12,000/- to the appellant. In view of the above discussion the present appeal, filed by the appellant is allowed and respondent Nos. 2 and 3 are directed either to replace the inverter in question or to refund the price of that inverter, amounting to Rs. 12,000/- (Rupees twelve thousand only) to the appellant together with cost and compensation of Rs. 2,000/-. Respondent Nos. 2 and 3 to comply with the orders of this Commission within 45 days of the receipt of this order failing which the appellant would be at liberty to file an application under Sections 25/27 of the Act, as the appellant may be advised, before the District Forum, for the implementation of these orders. The present appeal stands disposed of in above terms. Appeal disposed of.