RELIANCE ENGINEERING WORKS vs RENU SHARMA

THE short question involved in this appeal is as to whether replacement of the machine or refund of its price is the appropriate remedy to be provided to the complainant. THE appeal has been filed by the opposite party M/s. Reliance Engineering Works, Chandigarh challenging order of District Forum, Ferozepur dated September 29, 1998 whereby direction was given to the appellant to refund amount of Rs. 1,50,000/- with 18% p.a. interest thereon from April 20, 1996 till realisation and also to refund Rs. 4,150/- (Rs. 2,200/- freight + Rs. 1,700/- installation charges + Rs. 250/- repair charges). Further direction was given to pay Rs. 3,000/- as compensation and cost of litigation to the complainant Renu Sharma. Since the order was passed in the absence of the appellant and the appellant came to know on December 4, 1998 about the passing of the aforesaid order and after getting copy thereto the present appeal was filed on December 23, 1998, the appeal is, therefore, considered to be within time

WITH broad facts, there is no much dispute. Renu Sharma, the complainant after taking loan of Rs. 95,000/- from Canara Bank at Abohar under Prime Minister Jawahar Rojgar Yojna placed an order for supply of Automobile Softy Cone Plant and Bakery Making Machine on the opposite party, manufacturer of such machines. Manjit Singh of the opposite party visited Abohar to finalise the terms and conditions of sale. Bank draft of Rs. 95,000/- was handed over at Abohar on April 12, 1996 and a sum of Rs. 55,000/- in cash was paid at Abohar. To transporter Jai Mata Union (Regd.), freight of Rs. 2,200/- was paid by the complainant to the driver of the canter/truck carrying the machine. The opposite party sent three persons there to instal the machine. A total sum of Rs. 1,28,000/- was stated to have been aid vide cash memo dated April 20, 1996 for Rs. 95,000/- and bill dated April 20, 1996 for Rs. 33,000/- for the aforesaid machinery, value of which was Rs. 1,50,000/-. Since major defect was in the machinery, it did not work inspite of best efforts made by the representatives of the opposite party. A sum of Rs. 1,700/- were charged for installation of the machinery. Such defects were pointed out in the report dated May 6, 1996. Thereafter on May 19, 1996, two other persons were deputed by the opposite party who again submitted their report after charging Rs. 250/- from the complainant that there was fault in the machinery. Inspite of all that, the faults in the machinery were not removed that ultimately District Forum was approached with the complaint. In the reply furnished by the opposite parties, several pleas were taken including the territorial jurisdiction of the District Forum to entertain the complaint and that the complainant was not a consumer. There was no cause of action for filing the complaint. A sum of Rs. 55,000/- was stated to be still due from the complainant against the price of the machine. On merits, the sale of the machine was admitted. Sending of two bills as aforesaid was also admitted. The machine was stated to be functioning and the complaint was filed in order to avoid payment of balance amount of Rs. 55,000/-. On the evidence led by the parties, the complaint was allowed holding that the District Forum had the jurisdiction to entertain the complaint and the complainant was a consumer. There was manufacturing defect in the machine which was not working and directions to pay the amount as aforesaid were given. Learned Counsel for the appellant has argued that no opportunity of hearing arguments was afforded by the District Forum as contemplated under Section 14(1) of the Consumer Protection Act and the impugned order should be set aside on that ground alone. We find no merit in this contention. We have gone through the proceedings of the case and find that the complaint was hotly contested on different dates fixed in the case. The complainant was allowed to be cross-examined. A stage came when the opposite party stopped appearing in the case. The opposite party was represented last on June 29, 1998. Thereafter nobody appeared on behalf of the opposite party. The contention is that since President was not attending the proceedings, the opposite party thought that on his coming to the Forum, fresh notice would be issued. This contention is devoid of merit. When proceedings continued to be conducted by the Members as required under Section 13 of the Consumer Protection Act where presence of the President legally speaking was not necessary, it was expected of the parties to continue appearing in the proceedings and if the opposite party chose to remain absent on participating of the President and the Members in the conduct of the proceedings, no fresh notice was required to be issued to the opposite party. The complaint has been disposed of on merits, hence on the technical ground as raised, the aforesaid order cannot be set aside. The contention is repelled.

It has been argued by learned Counsel for the appellant that the entire price of the machine was not paid. He referred to the two documents. Ex. A13 indicates payment of Rs. 95,000/- through bank draft and Ex. R-1 indicating payment of Rs. 2,100/-. This contention as such cannot be accepted. Ex. A13 indicates full and final payment when bank draft of Rs. 95,000/- was paid. It is a case of the complainant that at that very time, cash amount of Rs. 55,000/- was also paid. There is no reason to discard the evidence of the complainant in this respect when the opposite party-appellant, who was supposed to maintain relevant accounts, has not produced the same.

COMING to the question as to whether in the case of defect in the machine, its replacement should have been ordered or the refund of the price, we are of the view that in the facts of the present case, refund of the price is the appropriate remedy. Inspite of all the best efforts by the representative of the appellant firm to properly put the machine in working order having failed, and much time having lost, no useful purpose would be served in directing replacement of the machine. The fact cannot be lost sight of that the complainant had taken loan from the bank for purchase of the machine for earning livelihood and has been deprived of the benefit. Finding no merit in the appeal, the same is dismissed. Appeal dismissed.