Seematti vs GEETHA MATHEW

THE opposite party in O.P. No. 778/93 on the file of the District Forum, Kottayam is the appellant.

THE respondent herein who is the complainant purchased one saree from opposite party on 18.12.1992. It is her case that when she took the saree to wear, it was found that the saree was damaged. Immediately she telephoned to opposite party, but they were not prepared to replace the saree. She could not immediately trace out the bill and she thought that it was lost. However, later it could be traced out. She again contacted the opposite party over the phone and asked them to replace the saree. She also told that she could trace out the bill. THEreafter she took the saree to opposite party and gave a Photostat copy of the said bill. However the opposite party was not prepared to replace the saree or to refund the price of the saree. It is in those circumstances the complaint was filed. The opposite party filed version stating that it has been specifically mentioned in the bill that if there is any complaint that would be brought to the notice of the opposite party within 30 days and any claim made thereafter will not be entertained.

The District Forum took the view that the statement printed in the bill to the above effect cannot find the opposite party. In that view it passed an order directing the opposite party to pay Rs. 598/- to the complainant towards the refund of the price within one month.

FEELING aggrieved by the order passed by the District Forum this appeal has been filed. Learned Counsel for the appellant contended that on the bill itself it is printed that any claim on the ground of damage will not be entertained after 30 days of the sale and therefore the complainant is not entitled to any relief. It is seen from the evidence that saree could not be taken to the opposite party within the stipulated period because the bill could not be traced out immediately. There is averment in the complaint that immediately on finding out that saree was a damaged one, the complainant telephoned to the opposite party and requested to replace the saree but they were not prepared to change the saree and that since she could not trace out the bill immediately she could not take the saree to the opposite party earlier.

THERE is no specific denial of the averments to this effect contained in the complaint in the version filed by the opposite party. Learned Counsel having relied on the decision of the National Commission in M/s. Shthadrisahakarana Sangh Ltd. & Anr. v. M/s. Pause Chemicals Pvt. Ltd. & Anr. I (1993) CPJ 47 (NC). In that case the National Commission pointed out that it was the duty of the respondent purchaser to have checked the quality of furnace oil supplied immediately or within a reasonable time of the delivery. That decision can hardly apply to the facts of this case. In this case the matter was brought to the notice of the opposite party immediately on noticing the defect and there is no delay in the matter. However the complainant has explained the circumstances for the delay in taking the saree to opposite party. Therefore, we are unable to say that the decision of the District Forum is wrong. It is not disputed that the saree is damaged and there is evidence in the case that she has not used the saree. Though it was vaguely suggested that it may be due to the misuse that the damage occurred, there is absolutely no evidence to show that saree was used by the complainant. The foregoing discussion would show that the appeal is devoid of any merit and it is accordingly dismissed. In the peculiar circumstances of the case, we direct the parties to bear their respective costs. Appeal dismissed.