| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 331 of 09-12-2019 Decided on : 14-09-2021 Surinder Singh, aged about 70 years, S/o Sh. Jang Singh, R/o Near Bus Stand, Rampura Phul, Tehsil Phul, Distt. Bathinda. ....Complainant Versus Symphony Limited, Symphony House, FP12-TP50, Bodakdev, Office SG Highway, Ahmedabad (Gujarat)-380054, through its MD/Chairman. Bhatia Electronics, Bus Stand Raod, Rampura Phul, Distt. Bathinda through its Prop./Partner.
...Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Kanwar Sandeep Singh, President. Shivdev Singh, Member. Present For the complainant : Sh. Parveen Kumar Sharma, Advocate. For opposite parties : OP No. 1 exparte Sh. Naresh Goyal, Advcoate, for OP No. 2. ORDER Kanwar Sandeep Singh, President The complainant Surinder Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Symphony Limited and another, (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that he purchased one Symphony Cooler Touch-110 bearing HSN/SAC Code 8479, manufactured by opposite party No.1, worth Rs.16,800/- from opposite party No. 2 vide Invoice No. GST-393 dated 17-5-2018. The opposite party No. 2 assured the complainant that the said product is of best quality and there is no complaint of any type. One year guarantee was also provided on the said cooler by opposite party No. 2. The complainant started using said cooler, but it did not prove to be of good quality as it started creating problems. There is inherent manufacturing defect in the same as it was having electric shock/current in the body although the same is made of plastic. The complainant lodged online complaints with opposite party No. 1 vide complaints No. BT15061800278 dated 15-6-2018, BT30061800471 dated 30-6-2018, BT-24071800213 dated 24-7-2018 and BT-31071800285 dated 31-7-2018 but opposite party No.1 did not pay heed to his complaints. It is alleged that the defect in the cooler could not be removed being inherent manufacturing defect. The electric shock in the body of the cooler put the life of complainant and his family at risk. The complainant returned the cooler to the shop of opposite party No. 2 on 1-8-2018 and since then it is lying there. It is further alleged that complainant repeatedly visiting the shop of the opposite party No. 2 and requesting them to replace the cooler in question with new one or to refund it price, but they are putting the matter off under one false pretext or the other and ultimately, they refused to accede to his requests. It is alleged that due to said act of the opposite parties, the complainant is suffering from great mental tension, agony, botheration and has also been deprived of using the said cooler despite spending huge amount of Rs.16,800/- It is pleaded that earlier complainant filed similar complaint on 2-4-2019 but due to some inadvertence and accidental ommssion, said complaint was dismissed as withdrawn. On this backdrop of facts, the complainant has filed this complaint seeking directions to the opposite parties to refund the total amount of Rs. 16,800/- and pay Rs. 20,000/- as compensation besides Rs. 5500/- as cost. Registered A.D. Notice of complaint was sent to the opposite parties. None appeared on behalf of opposite party No. 1, as such, exparte proceedings were taken against opposite party No. 1. The opposite party No. 2 put an appearance through counsel and contested the complaint by filing written reply. In reply, the opposite party No. 2 raised legal objections that the complaint is not maintainable. The complainant has got no locus-standi and cause of action to file the present complaint. It is mentioned that opposite party No. 2 is a dealer and sells the products of different companies to its customers and warranty is given only by the manufacturing company. If there is any defect/problem with regard to any product, then either manufacturer i.e. opposite party No.1 or its service centre are liable for the same. The opposite party No. 2 has no concern with the same. It is clearly mentioned on the bill dated 17-05-2019 `All Warranties and services are provided by the company only, no warranty from our side'. Further legal objections are that the complainant has not come to this Forum with clean hands, rather intentionally has suppressed the true and correct facts from this Forum. At the time of purchase, complainant was duly conveyed that the warranty is only by manufacturing company. It is added that after purchase of cooler in question, the complainant never approached opposite party No. 2. He again approached and purchased one Air Conditioner on 06-04-2019 for a sum of Rs.34,990/- in installments. The opposite party No. 2 denied that complainant took cooler in question to their shop on 01-08-2018, rather cooler was sent to the shop on 26-04-2019 without any intimation. On asking by opposite party No. 2, complainant conveyed that there is no requirement of cooler as he has purchased Air Conditioner. Opposite party No. 2 time and again requested the complainant to take the cooler back, but he did not pay any heed to their requests. The opposite party No. 2 has no knowledge regarding any alleged defect in the cooler in question. That there is no deficiency in service on the part of opposite party No. 2 and the complaint has been filed just to unnecessarily harass opposite party. That the complainant is stopped from filing the present complaint by his own act, conduct and acquiescence and that it is false, frivolous and vexatious to the knowledge of the complainant and deserves dismissal. On merits, it is admitted that complainant purchased the cooler in question from opposite party No. 2 on 17-05-2018 but it denied that any assurance or guarantee was given by them. The complainant with his own choice purchased the cooler and the warranty, if any, is given by the company which is duly mentioned on Invoice. It is pleaded that cooler in question is made of plastic body, so there is no question of any shock/current in the plastic. It is denied that complainant visited the shop of opposite party with any alleged request of replacement of the cooler. In further reply, the opposite party No. 2 reiterated its stand as taken in legal objections and detailed above. After controverting all other averments, the opposite party No. 2 prayed for dismissal of complaint. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence photocopy of Tax Invoice (Ex. C-1), photocopy of photographs (Ex. C-2 & Ex. C-3), photocopy of Warranty (Ex. C-4) his affidavit dated 9-12-2019 (Ex. C-5) and close the evidence. To rebut the evidence of complainant, opposite party No. 2 tendered into evidence photocopies of Invoice (Ex. OP-2/1 & Ex. OP-2/2), Photocopy of final order (Ex. OP-2/3) and affidavit dated 4-2-2020 of Gaurav Bhatia, Prop. (Ex. OP-2/4). We have heared learned counsel for the parties and gone through the file. Learned counsel for complainant has submitted that the material facts are not in controversy. It is not disputed that the complainant purchased cooler for Rs.16,800/- from opposite party No.2. He has pleaded that opposite party No. 2 gave one year guarantee/warranty and assured that in case any defect occurred within the guarantee/warranty period, it will replace the same immediately. The complainant has alleged and proved that there is recurring problem in the cooler and there was electric current in its body and it will not be safe to use the same. Photographs, (Ex.C-2 & Ex.C-3) also prove this fact. Therefore, this evidence of the complainant proves that there is manufacturing defect in the cooler. As such, he is entitled to refund of its price or its replacement with new one. On the other hand, submissions of learned counsel for opposite party No. 2 is that opposite party No. 2 is a dealer and sells the products of different companies. Warranty/Guarantee is given only by the manufacturing company and in case of any defect/problem in product, liability is of manufacturer or its service centre. The opposite party No. 2 is not at all liable for the same. In this regard, learned counsel for opposite party No. 2 also referred bill dated 17-05-2019 wherein it is mentioned that `All Warranties and services are provided by the company only, no warranty from our side'. The learned counsel for opposite party No. 2 further submitted that complainant never approached opposite party No. 2 after purchase of cooler. He visited shop of opposite party No. 2 only to purchase air conditioner and conveyed that now there is no need of cooler. He has failed to prove any manufacturing defect in the product. Hence, complaint deserves dismissal. We have given careful consideration to rival submissions. Admitted facts are that the complainant purchased the cooler in question from opposite party No. 2 on 17-5-2018 for Rs. 16,800/- vide Invoice (Ex.C-1) which finds mentioned “All Warranties and services are provided by the company only, no warranty from our side.” The complainant has alleged that the cooler is not working properly. Its body has electric shock/current, so he left his cooler with opposite party No. 2 on 1-8-2018 and the cooler is still with opposite party No. 1. Now, it is to be seen that the complainant is entitled for replacement of cooler/refund of its price or repair. The complainant has not placed any expert evidence on file to prove that cooler in question has any manufacturing defect. He has alleged in his complaint that he lodged complaints with opposite party No. 1 on 15-6-2018, 30-6-2018, 24-7-2018 and 31-7-2018 and ultimately he left his cooler with opposite party No. 2 on 1-8-2018. The service centre has not been made party to the complaint and opposite party No. 1 did not appear before this Commission despite service of notice. Complainant alleges that there is electric current in the body of cooler and its use can be fatal to him or his family members and photocopies of photographs (Ex. C-2 & Ex. C-3) prove this fact. Complainant made complaints to opposite party No. 1 time and again but to no effect. The opposite parties have not placed any document on file to show that they attended the complaints of complainant and cooler was repaired and it again became defective or started giving problem. Therefore, it amounts to deficiency in service on the part of opposite parties in not attending the complainants of complainant and rectifying the defect, if any. The direction for replacement of product or refund of its price cannot be given where consumer fails to prove manufacturing defect by expert evidence. Therefore, in such circumstances, opposite parties can only be directed to repair the cooler or in case, any part is irreparable, to replace the same under warranty terms and conditions. The liability of principal and agent is joint and several as authorised dealer acts as an agent of manufacturing company. For the reasons recorded above, the complaint is partly accepted with Rs.3500/- as cost and compensation against both the opposite parties. The opposite parties are directed to return the cooler to complainant after effecting necessary repairs and in case, any part is irreparable by replacing that part. The compliance of this order be made by the opposite parties jointly and serverally within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.
Announced:- 14-09-2021
(Kanwar Sandeep Singh) President (Shivdev Singh) Member | |
