MURRAY vs K.SANKARALINGAM

THE appeal is directed against the order dated 26.8.1997 in O.P. 85/1997 on the file of the District Consumer Disputes Redressal Forum, Chennai (South).

THE appellant is the opposite party while the respondent is the complainant. THE short facts leading to the filing of this appeal may in brevity be stated in order to understand the crux of the issue involved for consideration in this action. The opposite party M/s. Murray and Co., are auctioneers in Chennai. They issued a catalogue containing list of articles or goods to be sold for domestic use on a specified day. One such goods or article advertised for sale figured as item No. 164 in the catalogue. The said item is a rose wood double cot measuring 6 x 4 ft. The complainant became the successful bidder of Item No. 164 for a price of Rs. 2,400/-. He has also paid the necessary and requiste sales tax and the prescribed service charges. The cot when measured was not according to the standard description of 6 x 4 ft. but it was found to measure 6 x 3 ft. The shortfall in measurement of the cot, the complainant would allege is a defect in the goods purchased. Alleging the factors as above, he knocked at the doors of the Forum below for certain reliefs as prayed for in the complaint.

The opposite party M/s. Murray and Company, auctioneers, in pith and substance would contend that the article which was sold to the complainant belonged to one Deivasigamani and the description of the cot as given in the catalogue was in accordance with the description as given by the said Deivasigamani and such being the case, they cannot at all be found fault with. There is no defect in the goods purchased by the complainant. The goods had been purchased only after due inspection. The complaint, as such, is liable to be dismissed.

THE Forum below after taking into consideration the materials placed on record, recorded a finding that there was a defect in the goods purchased and on the finding so recorded, the opposite party was directed to pay compensation quantified in a sum of Rs. 2,000/- to the complainant towards mental agoney and disappointment suffered by him together with cost of Rs. 500/- within one month from the date of its order. Aggrieved by the order as above, the opposite party/appellant resorted to the present action by engaging a Counsel of its choice namely learned Counsel Mr. V. Nataraj.

ON service of process, the respondent/complainant entered appearance through a Counsel of his choice namely learned Counsel M/s. Nandini Ram. Arguments of respective learned Counsel appearing for the parties were heard. From the pith and substance of the submissions of learned Counsel appearing for the parties, the one and only question that crops up for consideration is as to whether the order of the Forum below is sustainable in law, on the facts and in the circumstances of the case.

THERE is no pale of controversy that the opposite party, auctioneer published a catalogue containing the list of articles to be sold in auction on a specified day. Yet another fact about which there is no dispute is that item No. 164 in the catalogue had been purchased by the complainant as a successful bidder in the auction for a price of Rs. 2,400/- apart from paying the necessary and requisite charges towards tax. Admittedly, the catalogue gives a description of Item No. 164. The catalogue had been marked as Ex. A1. A perusal of Item No. 164 in the catalogue, Ex. A1, we are able to perceive that the cot was a rose wood double cot measuring 6 x 4 ft. The complainant would say that the said cot is not in accord with the description in the sense of the cot measuring 6 x 3 ft. only. This aspect of the matter is not at all denied by the opposite party. But, what the opposite party would say is that the said cot had been described in the catalogue as stated by one Deivasigamani, the owner of the cot and nothing further. Pertinent it is to note here the relevant provisions of the Sale of Goods Act, 1930, as respects sale by description. Section 15 of the said Act, is relatable to sale by description. According to the said section, where there is a contract of sale of goods by description, there is an implied condition that the goods shall correspond with the description; and if the sale is by sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not correspond with the description.

THE sale of the cot in question in the instant case was a sale by description. Admittedly, it is not in accord with the description as relatable to measurement as given in Ex. A1 catalogue. Whether such a shortcoming in the measurement of the said cot would be construed as a defect falling within Section 2(1)(f) of the Consumer Protection Act, 1986 [for short, "the Act"]. Better it is, at this juncture, we rather feel to reproduce here the definition clause of "defect" in the said section. THE said section reads as under : "2. Definitions-(1) In this Act, unless the context otherwise requires- (f) "defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods."

From what has been extracted above, it is rather crystal clear that shortcoming in standard which is required to be maintained pursuant to any contract, express or implied, is definitely a defect within the meaning of the definition of "defect" as stated above. In the instant case, what is offered for sale by the opposite party, auctioneer, is Item No. 164, a rose wood double cot measuring 6 x 4 ft. Accepting the offer so made in the catalogue, the complainant purchased the said item by his becoming the successful bidder in paying the price of Rs. 2,400/- and the requisite and necessary taxes, etc. Therefore, a contract came into exitence between the complainant and the opposite party as respects the purchase of Item No. 164, a rose wood double bed cot measuring 6 x 4 ft. as in the catalogue. Therefore, a shortfall in the standard, that is to say, the measurement of the cot has to be construed definitely as a defect falling within Section 2(1)(f) of the Act.

The Forum below had awarded only a sum of Rs. 2,000/- to the complainant towards mental agony and disappointment suffered by him together with cost of Rs. 500/- to be paid within one month from the date of its order. The quantum of compensation for mental agony and disappointment as ordered by the Forum below is after all minimal besides being reasonable not calling for interference. The award of cost quantified in a sum of Rs. 500/- is also reasonable, on the facts and in the circumstances of the case. Therefore, the award as made by the Forum below deserves to be confirmed and we accordingly do so.

IN fine, the appeal fails and the same is dismissed. We however make no order as to costs on the facts and in the circumstances of the case. We however make it crystal clear that the award of the Forum below as confirmed by us in this appeal is payable by the opposite party to the complainant within one month from the date of the receipt of our order or otherwise the complainant will be at liberty to invoke the provisions of Section 27 of the Act. Appeal dismissed.