1. This appeal is filed by the original plaintiff whose suit for damages was dismissed with costs.
2. It was alleged by the plaintiff in his suit that he purchased one refrigerator on 12-6-1968 from the first defendant for an amount of Rs. 1,350/-through the second defendant, who is a local agent. The first defendant gave a warrantee for replacement of any part within first year of its purchase. The fridge, served it is purpose very well till 5-12-1968 and then it ceased to function. An intimation was, therefore, given to the second defendant who, on inspection of the fridge, opined that the unit will have to be sent back to Hyderabad where the manufacturing plant is situated. On intimation being sent to the first defendant, they agree to replace the unit at their cost and hence the second defendant was directed to remove and take away the unit from the plaintiff. The second defendant, acting under the direction of the first defendant, removed the unit. The unit was received at Akola by the second defendant but it appears that the same was also damaged in transit, an intimation about which was also sent to the first defendant with a copy to the plaintiff. As per the allegations in the plaint, both the defendants slept over the matter and hence the plaintiff sent a registered notice on 26-2-1969 whereupon the first defendant sent a reply stating that another unit is despatched for replacement. After waiting for some time, the plaintiff sent another letter dated 12-3-1969 to which a reply was sent by the first defendant that the unit has reached Akola but again it was found defective. Some more time passed without any effective steps, with the result that the plaintiff sent a notice on 19-6-1969 for refund of consideration and claimed damages which is said to have been suffered by the plaintiff on account of negligent conduct of the defendants. Since no reply was received, the plaintiff claimed damages at the rate of Rs. 8/- per day.
3. The suit was resisted by either of the defendants raising identical defences. It was alleged in the defence that all reasonable care was taken to give satisfactory service to the customer. They cannot be held guilty of any negligence. The first defendant sent the unit twice to Akola for replacement but unfortunately on both the occasions the unit suffered damages in transit. Ultimately a mechanic had to be sent from Hyderabad but the plaintiff refused to get the unit fixed through him on the ground that they had already filed a suit. The claim for damages was denied. The second defendant additionally pleaded that he could not be held responsible and also prayed the consequential costs.
4. The trial Court decreed the claim for damages extent of Rs. 720/-against which either of the parties filed appeal which came to be disposed for by a common judgment on 15th June 1972. The appeal preferred by the plaintiff was dismissed with costs and the appeal filed by the defendants was allowed. The ultimate result, was that the suit filed by the plaintiff came to be dismissed. It is against this Judgment of the lower appellate Court that the second appeal preferred by the plaintiff.
5. It was initially argued that the lower appellate Court could not have come to the conclusion that there was no negligence on the part of the first defendant, particularly when the said Court found as a fact that the first defendant was lethargic in his attitude and accepts that there was delay, may be a little delay, in replacing the unit, I see considerable force in this submission.
6. According to the plaintiff, there was abnormal delay on the part of the defendants in replacing the unit in the fridge. No doubt that units were sent to Akola from Hyderabad for replacement twice before but on both the occasions units were damaged in transit. Therefore, defendants could not be blamed for such unfortunate situation. However, it is on record that, the second defendant wanted that the mechanic from Hyderabad should ran down to Akola for setting the things right and replacing the unit as early as possible and accordingly informed the first defendant vide letter dated 21st March 1969 (Ex. 41). The surprising feature is that the first defendant did not take any action upto August 1969. May be that when the mechanic went to Akola to fix the unit of 9th August 1969, the plaintiff refused to get the unit refitted. The fact remains that the first defendant did take more than four months to send the mechanic to Akola. At the most the time required, considering all the exigencies, could not exceed more than a month from the date Ex. 40 was written. The first defendant cannot, therefore, escape the blame of negligence.
7. The lower appellate Court describes the lapse of time as little delay on account of lethargic attitude on the part of the first defendant. That Court also agree that it was possible for the first defendant to have fitted the unit within one month from 21-3-1969. However, the said Court comes out with a defence for and on behalf of the defendants that the units are being manufactured at Hyderabad and they deal with a supply of refrigerators not only at Akola but throughout the country and hence if there is any delay, it should not attract the penalty of negligence. In my view, the reasonings adopted are totally perverse, apart from the fact that there is no, material on record to warrant such a conclusion. Even if it is true that the manufacturing unit at Hyderabad supply fridge to the agents throughout the country. It does not give the manufacturers a licence to deal with the customers in the manner in which the first defendant has conducted with the plaintiff. When the articles are sold, the manufacturers give all sorts of guarantee but when an occasion arises to perform and fulfil their part of the bargain, excuses and delays are always to be found. The inconvenience caused to the customers by them who have spent money for purchase of the commodity can never be ignored. In these circumstances, I cannot uphold- the finding of the lower appellate court that there was only alight delay and which finding appears to be more sympathetic than legal.
8. Now that the first defendant is held to be negligent in replacement of the unit in refrigerator, the plaintiff is liable to claim damages for the loss he suffered in the sale of medicines and for which purpose he purchased the fridge. The trial Court awarded a sum of Rs. 720/- for the period between 21-4-1969 till the date of filing of the suit, i.e. 21st July 1969. The lower appellate Court, however, did not agree with the trial court and dismissed the plaintiff's suit for damages. The main consideration which weighed with the lower appellate court was that the fridge was purchased for Rs. 1,300/- whereas the damages claimed were to the extent of Rs. 1,400/-. Even if the damages claimed are more than the commodity purchased, that alone cannot be a ground for disallowing the claim if it is otherwise proved in accordance with law. Much emphasis was laid on the fact that the plaintiff had another fridge which was purchased by him much prior to the purchase of the fridge which is the subject matter of the suit. The other fridge was being utilised by the plaintiff at his residence. According to the lower Appellate Court, that fridge could have been used in the shop and damages could have been avoided. This may be a circumstance to reduce the damages, provided of course, the appellant has proved the loss. In the evidence led before the trial court, what was sought to be established was that the plaintiff suffered a loss of Rs. 10,000/-in that year as be could not, keep the stock of Rs. 1,00,000/- in the fridge. Now this submission is not supported by any documentary evidence like account books and/or bills of medicines supplied to the customers on wholesale basis during any month or months when the frigde was operating. An oral estimate of loss was not accepted by the lower appellate Court by describing the estimate as grossly exaggerated. In my opinion, this being a finding of fact, it is not now open for challenge in this second appeal. I further agree that the plaintiff has failed to prove the loss that he alleges to have suffered.
9. In the result, the appeal must fail and is accordingly dismissed. However, in the circumstances of the case, I make no order as to costs.