At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
By, THE HONOURABLE MR. JUSTICE L. MANOHARAN
By, PRESIDENT & THE HONOURABLE MR. PROF. R. VIJAYAKRISHNAN
For the Appellant: S. Reghukumar, Advocate. For the Respondents: None.
L. Manoharan, President:
1. The first opposite party in O.P. 420/96 on the file of the Consumer Disputes Redressal Forum, Kozhikkode is the appellant. The complainant’s grievance was that his vehicle met with an accident and got damaged. It was entrusted with the first opposite party for repairs who agreed to repair the vehicle for an amount of Rs. 23,000/-. Though the repair could have been effected without much delay the first opposite party took 9 months which resulted in loss to the complainant as he was using the same as taxi. In the version by the firs
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opposite party he denied the aforesaid allegation maintaining that he had taken only the real required time for effecting the repair and there was no intentional delay. The second opposite party maintained that it is an unnecessary party. Before the District Forum opposite party produced Exbts. B1 to B10. Complainant did not give any evidence neither did he produce any documents. The District Forum found deficiency of service inasmuch as the complainant had taken 3 months more than the usual time required for effecting the repairs and on a finding that the said delay would constitute deficiency of service awarded a compensation of Rs. 5,000/-. This decision of the District Forum was challenged by the first opposite party in Appeal 905/97 before the Commission. This Commission confirmed the finding of the District Forum that there was a delay of three months and that would constitute deficiency of service. But this Commission was of the view that there was no acceptable material to quantify the compensation and, therefore, that part of the order of the District Forum fixing the compensation was set aside and the matter was remitted to the District Forum to consider the said question after giving opportunity to both parties to lead evidence. After the remand the District Forum restored the complaint to file and again disposed off the matter as per the impugned order. The impugned order modified the quantum of Rs. 3,600/- instead of Rs. 5,000/- found by it in the earlier order. The first opposite party party has again come up in appeal.2. It was urged by the learned Counsel inspite of the remand for a specific purpose though opportunity was given to the parties particularly the complainant, he did not lead any evidence either documentary or oral. Still the District Forum awarded compensation which according to the learned Counsel would run against the view taken by this Commission in Appeal 905/97. Though there is deficiency of service since there is no evidence as to quantification, according to the learned Counsel for the appellant, the complaint was liable to be dismissed and in that view the impugned order has to be set aside and the appeal has to be allowed. Though the respondent accepted notice, he did not enter appearance, neither is he present. Therefore, we heard the Counsel for the appellant and perused the impugned order.3. Para 7 of the order contains the reasoning of the District Forum for quantifying the compensation. The District Forum states that for the 3 months’ delay the complainant is entitled to Rs. 3,600/- on the basis that out of 30 days of a month the complainant could have plied the vehicle for 20 days and per day he could have got an income of Rs. 60/- and on that basis the District Forum arrived at the said finding. Whether the said exercise of the District Forum could be accepted in the context of the remand order is the question to be adverted. The material already on record according to the remand was not sufficient for quantifying the compensation. The remand order says, “But coming to the question of quantification we have to agree with the learned Counsel for the appellant that there is hardly any material in support of the quantification. Since the quantification was capable of proof and the evidence having been not tendered we consider that this part of the order is infirm”. Then the Commission thought the complainant has to be given an opportunity to establish his case. Had the evidence on record and the attending circumstance been sufficient, no such remand was required. It is a settled position of law, the finding in the remand order would operate as resjudicata unless the appellant challenges the same in appeal. The District Forum now had adjudicated the compensation on the assumption of certain materials which did not have even the support of an affidavit by the complainant. The complainant did not lead evidence inspite of the opportunity given. The District Forum observes in para 6 of the impugned order after adverting to the remand as follows : “But surprisingly despite this specific direction and inspite of the fact that the case was adjourned on four occasions so as to give opportunity to both parties to adduce evidence on this aspect, no evidence either oral or documentary has been adduced and finally on the 4th occasion both sides represented that they have no evidence to be adduced on this aspect”. The Commission felt otherwise because the Commission was of the view that so far as quantification is concerned, evidence is necessary. Opportunity was given nothing prevented the complainant to enter the box to swear as to what he could have earned per day by plying the vehicle. He could have at least filed an affidavit or produced the trip sheet. The impugned order since is against the view taken by this Commission in Appeal 905/97 so far as the quantification of compensation is concerned is liable to be interfered and though there is deficiency of service, as the complainant has defaulted in leading evidence as to the question of compensation, the complaint has to be dismissed and the appeal has to be allowed.In the result the appeal is allowed. There will be no order as to costs.
"2001 (3) CPJ 324,"