- (1.) THIS appeal has been preferred against the order dated 18.3.1998 passed by the District Consumer Disputes Redressal Forum, Durg (hereinafter referred to District Forum for short) in Complaint Case No. 131/1994 whereby the complaint was dismissed.
(2.) THE facts not presently in dispute are that the appellant is the sub -dealer of the respondent No. 2 and it was through the appellant that the respondent No. 1 had placed the order for purchase of 250 Embosed Aluminium Sheets of Indal make. It is also undisputed that the complainant had, through the appellant, sent a draft of Rs. 40,000/ - in favour of the opposite party No. 1. It is also not in dispute that the embossed sheets as required by the complainant were not available at the relevant point of time and the complainant had agreed for supply of plain sheets.
(3.) BRIEF facts of the case as narrated in the complaint are that the complainant contacted the appellant and through them placed an order for purchase of 250 Embosed Aluminium Sheets of Indal make with the respondent No. 2. It was told that the price of the aforesaid sheets was Rs. 383/ - per sheet. As required by the appellant the complainant had handed over a draft issued by Central Bank of India, Dhamtari for a sum of Rs. 40,000/ - dated 19.3.1993 in favour of the respondent No. 2 and the appellant had sent the said draft to the respondent No. 2 together with a forwarding letter. It was orally agreed that the sheets would be delivered within a period of 15 days. However, it was nearly after a month that the appellant informed the complainant that the Embossed Aluminium Sheets were not available and the complainant may purchase plain sheets. As the complainant was in urgent need of the sheets she agreed to accept plain sheets. However, the same were not received up to 26.2.1993 when the complainant orally informed the appellant that now she does not want to purchase the sheets from them and demanded her money back. Thereafter on 1.3.1993 the respondent No. 2 had sent only 80 aluminium sheets through M/s. Bagai Transport, instead of 250 sheets required by the complainant and the complainant received the same at Dhamtari on 11.4.1993. Out of the aforesaid 80 sheets three sheets were damaged and Raichura Transport Company, the representative of M/s. Bagai Transport at Dhamtari, issued a certificate to that effect. It was further contended in the complaint that at the relevant time the price of the Embossed Aluminium Sheets was Rs. 340/ - per sheet but the opposite parties had charged Rs. 383/ - per sheet whereas the rate for the sheets was Rs. 335/ - per sheet only. It was further contended that the opposite parties were entitled to receive the price for 77 sheets only at the rate of Rs. 335/ - per sheet and were liable to return the remaining amount to the complainant but they had failed to do so despite requests and legal notice. Consequently complaint was filed before the District Forum, Durg with allegations of deficiency in service on part of the opposite parties for refund of a sum of Rs. 14,305/ - together with interest @ 18% per annum from 19.3.1993 till actual realisation. Oral evidence of Sri Suresh Khandelwal was recorded before the District Forum in favour of the complaint. The opposite party No. 1 (respondent No. 2 in this appeal) had not filed regular para -wise reply to the complaint but had sent a letter addressed to the District Forum and had thereby alleged that they had not dealing with complainant and it was the opposite party/appellant who had sent a draft for Rs. 40,000/ - and had demanded the sheets to be sent to them at Dhamtari. It was further contended that the O.P. No. 2 (appellant in this appeal) used to purchase sheets from them and after receipt of payment, sheets were delivered at the given address. The said amount was credited to the account of the appellant. It was also contended that they had informed the opposite party No. 2 vide letter dated 11.2.1993 itself that it was not possible to send embossed sheets and plain sheets may be sent, if required, after payment of remaining amount. After telephonic conversion 80 sheets were sent in the name of the opposite party No. 2 to Dhamtari according to the available amount in their account on 1.3.1993 through M/s. Bagai Transport. It was further contended that had unnecessarily been impleaded in the complaint and the real dispute is between the complainant and the opposite party No. 2 and opposite party No. 1 has nothing to do with the same. In support of their contentions the opposite party No. 1 had also placed certain documents on record. However, no affidavit was filed.;