SADANA ELECTRICALS vs REETA RANI GUPTA

THIS is an appeal against the judgment and order dated 5.3.1994 passed by District Forum, Lucknow in Complaint Case No. 303/1992. The facts of the case stated in brief are that the complainant purchased from the opposite party M/s. Sadana Electricals, Nishatganj, Lucknow one brown colour-Voltas fridge priced at Rs. 7,300/-. It was informed by the dealer that brown colour fridge is not available at present and delivery of the same can be made after two days at her residence. The complainant came back to her house but the fridge was not delivered as promised. Thereafter the complainant alongwith her husband went to the shop of the dealer and they were assured that they need not again visit the shop and the fridge shall be delivered at their residence very soon. Inspite of this assurance the fridge was not sent and hence the complainant is entitled to refund of Rs. 7,300/- alongwith 18% interest in the form of loss. Now the complainant does not wish to purchase another fridge.

ON behalf of the opposite party it was alleged in written statement that on 4.1.1991 brown colour Voltas fridge was booked for Rs. 7,300/-. As the fridge was not available at that time, the complainant was assured that it would be delivered to her when available within two days. When an order was sent to the Company for brown colour fridge, on 7.1.1991 it was informed that brown colour fridge is not available and it will be delivered when it is received in stock. The opposite party has not given any assurance to the complainant that brown colour fridge will be given within two days. It was also informed that if brown colour fridge is available in stock then it should be delivered otherwise it will not be delivered. It is wrong to say that the dealer does not wish to give the fridge to the complainant. It has further been alleged by the opposite party that a Complaint No. 368/1991 was lodged against the opposite party on 22.3.1992 which was decided. Hence the present complaint is not maintainable. The complainant is entitled to the cost of the fridge and no other amount.

After hearing the learned Counsel for the parties and perusing the evidence on record, the learned District Forum ordered that the complainant should be paid by the opposite party a sum of Rs. 7,300/- refund of the price within 60 days alongwith 15% per annum interest.

AGGRIEVED against this order the opposite party has come in appeal and has challenged the correctness of the order passed by the learned District Forum. Learned Counsel for the respondent, Mr. T.N. Saxena, was heard. None was present from the side of the appellant inspite of service of registered notice on the opposite party which was sent in May, 1999. It was not received back unserved and hence service is deemed sufficient. The appeal is being decided in absence of appellant.

WE have perused the evidence on record. In the present case the controversy centres around the delivery of the fridge which was admittedly booked by the complainant with the appellant M/s. Sadana Electricals. The only dispute between the parties is whether brown colour fridge was promised to be delivered by the dealer or not. The complainant''s case has throughout been that she had booked a brown colour fridge and it was promised to be delivered at the earliest. If the brown colour fridge was not available in stock, then it was the duty of the appellant to have informed the complainant about this fact and appellant should have taken her choice for any other colour and if the complainant was not willing for any other colour, then the entire amount deposited by the complainant should have been returned. Nothing of this sort was done by the appellant. The appellant continued to retain the amount with him without any reason. As the appellant has retained the money with him and utilised the same for himself, he is liable to return the same alongwith interest in the form of loss which was caused to the complainant. The interest awarded @ 15% per annum cannot be said to be on the higher side. A plea has been taken that Suit No. 368/ 1991 was filed by the complainant against the opposite party-appellant. But a perusal of the judgment of the learned District Forum goes to show that the suit was filed by the husband of the complainant and the same was dismissed on the ground that the husband cannot file a complaint on behalf of his wife who had purchased the fridge because the husband was not a consumer. Therefore, the dismissal of this complaint has no bearing on the facts of this complaint. ORDER The appeal is dismissed with cost of Rs. 500/-. Compliance of the order of District Forum be made within six weeks from the date of this order.

LET copy of this order be made available to the parties as per rules. Appeal dismissed with costs.