KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 90/2016

JUDGMENT DATED:28.09.2018

(Against the order in C.C. 104/2015 of CDRF, Wayanad)

PRESENT : 

SRI. T.S.P MOOSATH                                                          : JUDICIAL MEMBER

SRI. RANJIT. R                                                           : MEMBER

APPELLANT:

M/s Appollo Tyres, 6^th Floor, Cherupushpam, Shanmugham Road, Kochi-11 represented by its Divisional Head-Legal & Constituted Attorney.

 (By Adv. V. Tekchand)

                                                Vs.

RESPONDENTS:

1. Rafeeque Haji, KT Sons General Merchant, Mananthavady.

2. M/s Today Tyres, B-Street, Mananthavady represented by its proprietor. 

(By Adv. C.A. Sadasivan)  

JUDGMENT

SRI. RANJIT. R: MEMBER

The 2^nd opposite party in C.C. 104/2015 on the file of CDRF, Wayanad, Kalpetta has filed this appeal against the exparte order passed against the appellant directing them to pay Rs. 44,792/- being the purchase price of two tyres and also to pay Rs. 3,000/- as compensation and Rs. 2,000/- as cost.

2.  The case of the complainant is that the two tyres manufactured by the 2^nd opposite party/appellant and sold by 1^st opposite party for the price of Rs. 44,792/- showed bulging while running about 30000 km and so he was unable to use the same.  Even though complaint was registered with the 1^st opposite party who in turn gave complaint to the 2^nd opposite party manufacturer, they did not care to replace it.  They rejected his claim on the ground of fitment damage.  Hence he filed the complaint before the Forum for compensation.

3.  1^st opposite party denied the allegations in the complaint stating that they forward the tyres to the 2^nd opposite party, who is the manufacturer of the tyres.  The 2^nd opposite party rejected the complaint on finding that the damage of tyres occurred due to fitment damage.  1^st opposite party being a dealer is not liable to pay any compensation to the complainant.

4.  Even though the 2^nd opposite party received notice, they did not appear and were set exparte. 

5.  Evidence consisted of oral evidence of the complainant as PW1 and his witness as PW2.  Exts. A1 to A3 were marked on his side.  Opposite parties did not adduce any evidence. 

6.  The lower Forum, on appreciating the materials produced, has found that there is unfair trade practice and deficiency of service on the part of 2^nd opposite party and passed the impugned order. 

7.  The learned counsel for the appellant contended that the person in charge of the consumer issues had not made an office file with respect to the case and left the company and hence the appellant could not follow the case effectively.  Appellant further contended that even though they presented their written version on the next day, it was not taken on record by the Forum.

8.  We are not impressed with the submission of the counsel.  Perusal of the order shows that 2^nd opposite party after accepting notice remained absent and it resulted in passing of an ex-parte order against them on accepting the case of the complainant, relying on the proof affidavit filed and also documents produced by complainant. 

9.  Nevertheless a decision on any issue has to be formulated after providing opportunity to both sides to lead evidence.  Though we find reasons to hold that 2^nd opposite party was culpable in passing an exparte order against it, we are inclined to grant the request of setting aside the order and remit the case for fresh disposal.

10.  Remission of the case, setting aside the order of the district Forum can be ordered only on terms directing the appellant to compensate the injuries likely to be caused to the complainant in culmination of proceedings.  Appellant has to pay Rs. 10,000/- as cost to the complainant as a condition precedent for setting aside the order and remission of the case.  The 1^st respondent/complainant can realize the amount of Rs. 10,000/- ordered as cost, from the amount of Rs. 25,000/- deposited by the appellant for entertaining the appeal, on filing proper application.  Balance amount of Rs. 15,000/- to be released to the appellant, on application.

11.  In the result, appeal is allowed, as indicated above.  The order passed by the district Forum is set aside and the matter is remanded for fresh disposal after giving opportunity to the appellant/2^nd opposite party to file version and adduce evidence, if any.  The district Forum shall dispose off the complaint as expeditiously as possible. 

T.S.P MOOSATH     :  JUDICIAL MEMBER

RANJIT. R    : MEMBER