S.S. Satheesachandran : President

Complainant is the appellant. Her complaint numbered as CC.255/12 before the CDRF, Wayanadu claiming refund and compensation imputing deficiency of service and unfair trade practice by the respondents, after adjudication, was dismissed by the Forum, and, hence this appeal.

2. Complainant for her livelihood was carrying on an Akshaya Kendra in Kottakkunnu, Sulthan Bathery, and for its improvement she purchased a photstat machine of Thoshiba E-2040-C having multi functioning digital colour system through the first opposite party. Installation of copy contract was given by the 2nd opposite party. A sum of Rs.2,96,514/- was paid towards price for the machine, of which Rs.1,00,000/- was given as advance before installation. First opposite party had assured that copy contract for the machine to take A3 and A4 photostats would be given by the 2nd opposite party. However, when the machine was installed the 2nd opposite party declined to give copy contract for A4 photostats copies. Since the assurance given by first opposite party when order was placed for machine was broken and as non giving of copy contract resulted in severe loss first opposite party was asked to take back the machine and refund the price paid. Photostat machine was returned to the concern of first opposite party as agreed to and on promise to refund the price and compensate the loss. However, despite issuing advocate notice demanding refund and compensation both opposite parties failed to refund the price and damages. Complaint was therefore filed seeking refund of Rs.2,96,514/- with 12% interest and also for compensation of Rs.1,00,000/- from both opposite parties.

3. Opposite parties 1 and 2 filed separate version, both of them disputing the case of complainant questioning her entitlement for refund and compensation. There was no assurance to give copy contract for A4 photostats copies when the order was placed or later, and the complainant who did not get sufficient profit operating the machine returned the photostat machine to first opposite party raising a false claim, according to these respondents. When the first opposite party relied on the quotation given over the photostat machine purchased to contend that it did not contain any contract for providing copy contract of A4 copies, second opposite party contended that it was an unnecessary party and was bound only to install the machine and take necessary steps to cure manufacturing defects, if any, within the warranty period. Second opposite party has not entered into any copy contract nor given any assurance to complainant to provide such a contract was its further case to deny the claim of the complainant.

4. Complainant including herself examined three witnesses, PW1 to PW3 and exhibited A1 to A6 series to prove her case. For first opposite party its proprietor was examined as OPW1 and Exbts.B1 and B2 series were marked. No evidence was let in by 2nd opposite party. After considering the materials produced and hearing counsel on both sides, the Forum holding that complainant had suppressed material documents in her custody and Ext.A3 produced by her was not believable concluded that she had failed to prove her case, and the complaint was dismissed. Aggrieved by the order of dismissal complainant has preferred this appeal.

5. Respondents were served notice, but, they remained absent.

6. We heard the counsel for appellant. Learned counsel for appellant assailing the order of the forum contended that vital pieces of evidence tendered to prove the case of complainant have been ignored and discarded by the forum and that had resulted in forming wrong conclusion and dismissal of her claim.

7. The district forum turned down the case of complainant for nonproduction of the quotation placed by first opposite party for sale of photostat machine and also taking a view that Ext.A3 produced by her was not believable and acceptable. Copy of quotation produced by first opposite party and exhibited as B1 did not contain any assurance for providing copy contract for A4 photostats but only for A3 photostats was treated as decisive by the forum to dismiss the claim of complainant.

8. Perusing the records we notice that material pieces of evidence tendered in the case by both sides were not appreciated by the lower Forum and it has formed some conclusions mainly banking upon the contents of Ext.B1 quotation. Definite case of complainant was that she was persuaded to purchase the photostat machine on assurance of first opposite party that copy contract would be given for A3 and A4 photostats. But that was not honoured and it caused her loss according to her. The fact that quotation given by first opposite party did not contain a specific assurance over giving of copy contract for A4 photostats has little significance if there are other pieces of evidence to establish that there was an assurance to provide such copy contract. Second opposite party has to give copy contract, that alone, is not decisive in examining whether there was assurance by the first opposite party to give copy contract for A4 photostat when machine was sold. First opposite party examined as OPW1, admitted that Shinto George was his Sales Executive in the branch office from where complainant purchased the photostat machine. First opposite party contended that complainant had fabricated A3 and A4 colluding with one of his former employees but without naming him. Though he claimed Shinto George left his employment in May 2012 no material was produced that he was not employed in his branch office when complainant returned the photostat machine and A3 and A4 were executed receiving that machine. A3 and A4 were executed by Shinto George, who, admittedly, was employed as sales executive at the time of sale of photostat machine to complainant. A3 would show that there was an assurance to give A4 copy contract also but later 2nd opposite party declined to provide such copy contract. Strangely enough the district forum has discarded the two documents A3 and A4 and even gone to the extent of holding that they are not genuine and acceptable ignoring the evidence of complainant and her two witnesses, especially, PW3 who had signed as a witness in A3 without stating any reason why such evidence tendered to prove those documents was not acceptable. The lower forum discarded A3 not believable since it was not addressed to anybody and also opining that the letter head of kaligraph shown in A3 and B1 was not matching, and, seals in A3 and B1 are not the same. Such opinion and reasons stated to discard A3, to say the least, are palpably erroneous. Both Ext.A1 and B1 contain the letter head Kaligraph Business Systems but printed on different letters. Letter heads are typed differently is no ground to doubt the genuineness of A3 and A4. Seal impression in A1 differs from those appearing in A3 and A4 also appears to be incorrect, and infact there was no challenge in that line to complainant and their witness by first opposite party. A3 is proved by the evidence of PW3 who had signed in that document as a witness A3 and A4 are challenged by first opposite party as not genuine cannot be a ground to discard them especially were he has not tendered any evidence to substantiate his contention that Shinto George had left his service before execution of those documents. First opposite party has no case that Shinto George has some axe to grind against him to collude with complainant to make fraudulent documents to fasten him with liability. Evidence of first opposite party examined as OPW1 would show that he has not filed any complaint against Shinto George or any other employee imputing them of forging false documents. His assertion that Shinto George left his service in April 2012 cannot be believed and it has to be taken as only a lame excuse to wriggle out of the consequences arising from A3 and A4 documents, both of which are signed by Shinto George and affixed with the seal of first opposite party. The first opposite party has no case that the seal impression in A3 and A4 was not made from the seal used in the branch office where photostat machine was sold and later returned by complainant and where Shinto George, admittedly, worked as sales executive at the time of sale of that machine. The evidence of complainant and two witnesses clearly establish that Shinto George continued to be employed in the branch office of first opposite party at the time when the photostat machine was returned and there he executed A3 and A4 receiving the machine. Challenge against A3 and A4 as not genuine by first opposite party which was approved by the district forum, is unworthy with any merit. There was assurance from the employees of first opposite party when the photostat machine was sold to complainant promising of copy contract of A4 photostats is proved by the evidence of complainant and witnesses and A3 and A4

. Employees of first opposite party are his servants and as assurance given by them is equally binding on him. First opposite party cannot escape from his liability when such assurance was broken, whatever be the reason thereof. In the proved facts and circumstances of the case first opposite party has to refund the price of the photostat machine and also pay compensation to complainant for deficiency of service. In the result, reversing the Order of dismissal of complaint by the lower forum, the first opposite party is directed to refund the price of the photostat machine ie Rs.2,96,514/- with compensation of Rs.50,000/- to the complainant within one month from the date of this judgment. If the sums ordered are not paid within the time fixed, it shall carry interest at the rate of 6% per annum from the date of this judgment till realization. First opposite party is also directed to pay cost of Rs.10,000/- to the complainant. Appeal is allowed as indicated above.