ODIN RETREADERS (P) LIMITED vs JANGA RAM BABU

COUNSEL for the appellant is heard. The respondent, Mr. Janga Ram Babu, is not present and there is no representation on his behalf. He is called absent.

THE record of the District Forum is before us. We find that there is no basis for the District Forum surmising that it was the duty of the appellant to retread. From a reading of the complaint filed by the respondent/complainant we find that his positive case was that the tyres given by him were retreaded and that they were brought to his place for delivery. In para 2 of his complaint the complainant stated as follows : "After 15 days the opposite party came to Wyra to deliver these three tyres after retreading and he stated that the servicing charges has been enhanced Rs. 150/- each to these three tyres in total he demanded Rs. 450/- excess on the said bill of Rs. 3,000/-."

On the other hand the appellant i.e., opposite party before the District Forum in O.P. No. 328/1995, categorically stated that the tyres were not retreaded because they were not fit for retreading and, when they were sought to be returned, the respondent/complainant refused to take delivery and insisted that they should be retreaded and that the case set up by the respondent/complainant that an additional charge of Rs. 150/- demanded was false. We find that in para 5 of the version/counter filed by the appellant before the District Forum it was specifically stated that the three tyres were lying in the godown of the appellant/opposite party in the same position as on 13.5.1995 and that it would be ready to produce the tyres before the District Forum at the time of arguments or earlier if ordered. THE question of fact as to whether the tyres of the respondent/complainant were already retreaded or not could have been easily verified by requiring the appellant to produce them before the District Forum. THE District Forum seems to have proceeded on the basis that the tyres were not retreaded and in its order under appeal it directed the appellant/opposite party to return the three tyres of the respondent/complainant "after duly retreading". If the District Forum was inclined to hold that the tyres were not retreaded then it would follow that the case put up by the respondent/complainant that the retreaded tyres were brought to him would be a false statement. THE respondent/complainant filed xerox copy of original receipt dated 13.5.1995 marked as Ex. A1. In that receipt the tyre numbers were mentioned. THE District Forum could have directed the appellant to produce the tyres and should have verified whether they were retreaded or not; and, if they were not retreaded as claimed by the respondent/complainant, the complainant should have been dismissed on the ground that the complainant came with a false case. The learned Counsel for the appellant states that the un-retreaded tyres of the complainant are still lying in the godown of the appellant. If that is so they can be produced for verification before the District Forum.

In the circumstances we set aside the order of the District Forum in OP No. 328/1995 dated 28.3.1998 and remand the matter back to the District Forum to be decided afresh in accordance with law after finding out whether the three tyres in fact were retreaded or not by directing the appellant/opposite party to produce the tyres before it : we may indicate that if after verification of the tyres produced they are found to be the same as those described in Ex. A1 and if it is also found that they are not retreaded, the complainant shall be directed to take back the tyres and the complaint shall be dismissed with costs of Rs. 1,000/- to be paid within four weeks; if they are found retreaded, the appellant shall hand them over to the complainant and the latter shall pay him Rs. 2,000/- within the time fixed by the District Forum with the balance Rs. 1,000/- adjusted towards costs of Rs. 1,000/- payable by the appellant and the complaint shall be allowed accordingly and if the tyres produced are found to be not those described in Ex. A1 the District Forum shall consider the facts of the case and award reasonable compensation to the complainant and allow the complaint with costs of Rs. 1,000/- and direct that the compensation and costs shall be paid by the appellant to the complainant within the time fixed by the District Forum.

THE appeal is accordingly allowed. Office is directed to send back the papers in OP. No. 328/1995 to the District Forum Khammam immediately alongwith this order. Appeal allowed.