T.M.ABU vs Vijayan

THIS appeal is directed against the order passed by the District Forum, Kottayam, in O.P. No. 273/94. The opposite parties are the appellants.

SHORTLY stated, the allegations in the complaint are as follows : The complainant purchased 11,000 bricks from the opposite party through one Rajan for Rs. 9,350/- on 25.3.93. But the bricks were substandard and unfit for construction. The matter was informed to the first opposite party. The opposite party promised to replace the bricks or to refund the amount. However, even after repeated requests made by the complainant for one year, the opposite party did not settle the matter. The first opposite party filed a version stating that he had no such business and there was no such transaction as alleged in the complaint and he is a Government employee. Probably on account of the contention taken by the first opposite party the complainant''s wife was impleaded as second opposite party. But the second opposite party filed a statement stating that she had no such transaction. The District Forum took the view that it is the first opposite party who was doing the business in the name of his wife and in that view passed an order directing the first opposite party to refund Rs. 9,350/-. There was also an order directing to return the bricks. Cost of Rs. 250/- was also ordered.

Feeling aggrieved by the said order this appeal has been preferred.

UNFORTUNATELY, in this case no expert opinion was taken as to the quality of the bricks but the District Forum has relied on the case of the complainant and held that the bricks are of poor quality. In this appeal learned Counsel appearing for the appellant submitted that there were no bricks available there and in the circumstances the order passed by the District Forum cannot be executed. Learned Counsel appearing for the complainant submitted that some of the bricks were damaged in the rain. We think that it would be necessary for the complainant to return the bricks purchased by the complainant on receipt of the cost of the bricks from opposite party. The Counsel for the complainant submitted that some bricks are available. In the circumstances we feel that it is necessary to modify the order by directing the opposite party to refund the amount in case the complainant returns the bricks supplied to the complainant. It would be open to the opposite party to deduct the proportionate price if all the bricks supplied to the complainant were not available. Subject to this modification appeal is dismissed. Appeal dismissed.