IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 6th day of December, 2024
Filed on: 06. 06.2023
Present
- Smt. P.R.Sholy, B.A.L, LLB (President in Charge )
- Smt. C.K.Lekhamma . B.A. LLB (Member)
In
CC/No. 149/202
between
Complainant:- | Opposite Parties:- |
1. Sri. Ramesh 1. Sri. Shaji.K.A
Gokulam House The Chairman cum Managing Director
Karumady, Ambalappuzha My-G Corporate Office, Carionvertu Building
Puthiyara Mini Byepass, Kozhikode-673004
2. Smt. Sunitha 2. The Manager, My-G Alappuzha
Gokulam House Room No. 162-A, 162-B, 162-C
=do= =do= Kottakuzhiyil Building, Beach Road
(Adv. B.Girish) Municipal Ward-25, Vellakinar Post
Alappuzha-688001
(Adv. Aparna.C. Menon for Ops 1 &2)
3. NIBIT INTERNATIONAL PVT. LTD
No. 71/2674, Behind West Hill Engineering
College, West hill, Calicut, Kerala-673005
(Exparte)
ORDER
SMT.C.K.LEKHAMMA(MEMBER)
1. Brief facts of the complainants case is that:-
The complainants were attracted by the advertisement of the opposite parties and happened to purchase a speaker from the 2nd opposite parties, manufactured by the 3rd opposite parties, for Rs.8,299/-(Rupees Eight thousand two hundred and ninety nine only) on 22.3.2023. Moreover, at the time of purchase, the second opposite parties explained and convinced the complainant made them believe that the product was of good quality and assured they would provide the service as and when required. However, the product became defective within three weeks after the purchase. It was entrusted to the 2nd opposite parties for curing the defects. After two weeks, the same was returned to the complainant stating that they cured the defect. But the defect persists. Even though the complainant tried to contact the second opposite parties they didn't care to attend their phone calls. Thereafter intimated the customer care department of opposite parties but they are intentionally avoiding them with lame excuses and have not provided any services to date. Hence, the alleged deficiency in service and filed this complaint and sought the following reliefs.
1. To direct the opposite parties to refund the purchase amount with interest on the product
2. To direct the opposite parties to pay compensation for deficiency in service and costs of the proceedings to the complainant.
2. The version of the opposite parties is as follows:-
It is contended that the complainants purchased the speaker of their own choice. At the time of purchasing the product, the 2nd opposite party had clearly explained the features and model of said product to the complainants and after thorough verification, they purchased the same after making sure that there was no defect to the product. Neither the opposite parties nor any person under them had forced them to purchase the product. The complainants alleging manufacturing defect, but these opposite parties are not the manufacturer of the product; therefore, they are not held liable for manufacturing defect. However, the complainant gave the product for repair it was repaired through the service centre by the opposite parties and handed over to them as soon as possible. Even after that, if any defect occurs to the speaker, it is only due to the mishandling of the complainants. Hence there is no service deficiency on the part of these opposite parties. Moreover, this opposite parties is the seller of various products for reasonable prices and is not liable for any grievance or concern.
3. The points that arise for consideration are as follows:-
1. Whether the complainant entitled to get any reliefs as sought in the complaint?
2. Relief and cost?
4. The second complainant was examined as PW1 and Ext. A1&A2 were marked. Neither oral nor documentary evidence was adduced by the opposite parties. Counsel for both sides filed notes of argument, and both of them argued the matter.
5. Point. No.1:-
Admittedly, the disputed speaker was purchased from the second opposite party as per Ext.A1. Ext. A4 shows the product has a one-year warranty. The dispute is that the product became defunct within three weeks after the purchase. It was admitted by the opposite parties that they rectified the defect through the service centre of the manufacturer and handed it over to the customer. Now the allegation is that even though the opposite parties returned the product, it seems that the defect is not cured. The contention taken by the opposite parties is that being a seller, they have no liability to rectify the defects or replace the product. However, they handed over the product to the service centre and they rectified the defect. If any defect occurred after that, it was only the mishandling of the complainants.
6. The learned counsel for the opposite parties argued that they are only a seller of the product. The manufacturer is answerable for the manufacturing defects, and the repairs were done by the service centre of the manufacturer. Both are not a party to the complaint. As a goodwill gesture, the opposite parties handed over it to the service centre. Further pointed out that, even though an expert report is required to prove manufacturing defect, the complainants failed to take out an expert opinion. Further argued that the burden of proof rests with the complainants. The absence of expert analysis or technical evidence further weakens the credibility of the allegations. Supporting their arguments pointed out the decision rendered by the Hon'ble National Commission in Maruthi Udyog Ltd Vs. Hamukh Lakshmi Chand and another (2009) NCDRC.
7. There is a notable absence of evidence indicating the manufacturing defect of the product. To prove manufacturing defect, the opinion of an expert is necessary, as observed in various cases by the Higher Authorities. However, it is an admitted fact that once the product was repaired through the opposite parties by the service centre. The allegation is that said defect exists. According to the opposite parties, if any defects on the product that occurred after the repairs only due to the mishandling of the complainant. But no such evidence of mishandling is before us. It is pertinent to note that as per Sec.2(36)(vi) of the Consumer Protection Act 2019, the position of a seller is as a manufacturer, i.e., the seller cannot evade the responsibility. Furthermore, the rule of 'caveat venditor', i.e., let the seller beware, is applicable in this case. The said rule is counter to the 'caveat emptor ' rule. Being a product seller opposite parties are bound to ensure the efficacy of the product sold by them. Therefore, the opposite parties are bound to initiate their earnest efforts for rectifying the defects of the product through the service centre of the manufacturer under warranty since the complainants have no direct contact with the manufacturer of the product. As stated earlier, the manufacturer of the product is not arrayed as a party to the proceedings. It is pertinent to note that the complainants alleged several times on various dates they tried to contact the 2nd opposite party, but they hesitated to attend the phone calls. It seems that the above allegation is not denied by the opposite parties, which indicates that the 2nd opposite party has purposefully evaded their responsibility to avoid the legitimate request of the complainants. In the above context, we find a clear deficiency in service on the part of the 2nd opposite party. Therefore, the opposite parties are liable to pay compensation to the complainants.
8. Point No. 2:-
In the result, the complaint stands allowed in part as follows:-
1. The opposite parties shall rectify the defects of the product in question under warranty through the service centre of the manufacturer, in that event, the complainants shall hand over the product to the 2nd opposite party’s shop.
2. The opposite parties shall pay to the complainants Rs. 5000/- (Rupees Five thousand only )towards compensation for deficiency in service, failing which said amount shall carry interest @8%p.a from the day fixed for compliance of this order till realisation.
3. The opposite parties shall pay Rs.1000/-( Rupees One thousand only) as litigation costs to the complainants.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 06th day of December, 2024.
Sd/-Smt.C.K.Lekhamma (Member)
Sd/- Smt. P.R. Sholy (President in Charge)
Appendix:-Evidence of the complainant:-
PW1 - Sunitha (Complainant)
Ext.A1 - Tax Invoice
Ext.A2 - Warranty Card
Evidence of the opposite parties:- NIL
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
