The fact of the case in brief is that the complainant purchased one unit of Propello Kitchen Chimeny, Model Dazzle LSL No. MCS1909DA01479 from the shop of M/S New Suvechha, New Market, Balurghat Dakshin Dinajpur of the O.P. No.1, amounting to Rs.21,000/-. The opposite party No.1is the authorized Distributer of Propello Kitchen Appliances. On 01.10.2019, opposite party No. 2 the another partner and technician who installed chimney to the complainant residence.
After two months the said chimney developed several problems during its operation within two months complainant informed O.P. No.1 and O.P. No.2 over phone since the month of December 2019 and O.P. No.1 & 2 forwarded the defect report to the O.P. No.3 the Manufacturer. Then the complainant wants to settle the matter. The O.P. No.1 & 3 deemed to be agreed to replace the defective set by a new one as the same defective was reported within one year warranty period as per clause B of the warranty card subsequently the complainant received docket No. D200312000121 as SMS dt. 12.03.2020 from O.P. No.3 toll free No. 18001210600. Accordingly the complainant drew the attention the O.Ps regarding her health problems and to change the chimney set as per term and conditions of the warranty card. The complainant has made several complaints to the O.Ps but the O.Ps did not rectify the defect.
That the complainant noticed the following distinguished defects. that i) The oil was licking from the wire mesh in the cooked food while cooking, ii) The Smokes and fumes were accumulating inside the open kitchen cum dining space, while the chimney was in operation every time and causing loud noise. iii) The button No.2 of the chimney was not functioning continuously and iv) The installation was made at a height hire than what was required.
Therefore, the complainant filed a complaint before the Assistant Director, Consumer Affairs & FBP Dakshin Dinajpur on 08.06.2020 but failed to solve the problem and failed to make any solution. On 13.06.2020 the complainant was lodged another complaint to the toll free No. on 19.08.2020. Two written complaint was sent to the O.P. No.1 & O.P. No.3 through registered post and the consignment No. EW870722041IN was returned back.
Lastly the complainant filed the complaint before the Ld. District Commission praying for direction upon the O.Ps for their misconduct and deficiency in service in individual capacity in joint capacity with a direction to refund the cost of the machine, i.e. Rs.21.000/- or to replace the machine with new one. Rs.20,000/- for the cost of damage to furniture electric wiring and other goods and cost of Gas stove Rs.3000/- and 10,000/- as litigation cost to the complainant.
It appears from the case record that notices was issued the opposite parties and after getting notice the opposite party No. 2 only appeared before this Commission by filing vokalatnama. O.P. No.2 filed written version, evidence on affidavit subsequently the opposite party No. 1 & 3 did not appeared before the Commission nor filed written version, and O.P. No.2 did not filed written notes of argument or hearing of argument. So, the case is proceed ex-parte against O.P. Nos. 1 & 3,
To prove the case, the complainant has submitted the following documents -
- Original cash Memo of New Suvechha,
- Original User Manual for Dozzle along with warranty card,
- Complaint letter to propello and Postal receipt with track consignment.
- Xerox Aadhaar card of Sabita Majumder.
In view of the above mentioned facts the following points are cropped up for consideration
Points for discussion
- Is the complainant a consumer to the opposite parties?
- Is there any deficiency in service on the part of the opposite parties?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
We have heard argument by Ld. Advocate for the complainant perused the case record and documents filed by the complainant O.P. No.2 did not participate in the argument.
The complainant informed the matter to the O.P. No.1 & 2 over phone since the month of December and the O.P. nO. 1 & 2 forwarded the defect report to the O.P. No.3 the manufacturer. The complainant want to settle the matter and the O.P. No.1 & 3 deemed to be agreed to replace the defective set by a new one as the same defect was reported within one year of warranty period as per clause B of the warranty card, subsequently the complainant received docket No. D200312000121 on SMS dt. 12.03.2020 from O.P. No.3. The complainant drew the attention of the O.Ps regarding her health problem and asked them to change the set as per terms and conditions of the warranty card on 13.06.2020 the complainant again received docket No. D200613000050 on SMS. Later on two written complaint was sent to the O.P. No.1 & 3 through registered post vide postal consignment No. EW870722038IN and EW870722041IN were duly delivered to the addressee on 02.09.2020 and another was returned back to the complainant through post office. As a matter of fact the complainant has made several complaints to the O.ps but the O.Ps did not rectify the defects. It shows the negligence and deficiency in service on the part of the opposite party Nos. 1 & 3. Then the complainant is bound to file this case before this Commission for redressal.
Now, let us discussed all the points one by one.
Point No.1
On perusal of the record and documents, the O.P. No.2 has admitted in the written version that complainant has purchased a propello Kitchen Chimney from O.P. No.1 So, there is no hesitation to hold that the complainant is a bona fide consumer to all the O.Ps according to section 2(7) of the Consumer Protection Act, 2019.
Point No.2 & 3
Both points are taken up together for the discussion for the sake of convenience and brevity. It is admitted fact that the complainant had purchased a propello kitchen chimney from O.P. No.1.
That after two months the said chimney developed several problems during its operation then the complainant informed the matter to O.P. No.1 & 2 over telephone and the O.P. No.1 & 2 forwarded to defect report to the O.P. No.3 the manufacturer. Later on, another complaint was lodged to the toll free number and two written complaints wer sent to the O.P. No.1 & 3, through registered post vide consignment No. EW870722041INand EW870722038IN on 19.08.2020. The complainant visited the shop ( New suveccha) of the opposite party No.1 to make arrangement for returning back the defective chimney and replace with new one in working condition. But the O.Ps did not rectify the defects of replace the chimney.
Then the complainant filed a complaint to the Assistant Director of Consumer Affairs Department but the affairs failed to make any solution.
O.P. No.1 & 3 did not contest the case despite of valid service of the notice. So, the case is proceded ex-parte against O.P. No.1 & 3. from the above discussion we find that propello kitchen chimney has been purchased by the complainant from O.P. No.1 i.e. New Suveccha Shop. So, it can be said that O.P. No.1 is the authorized distributor and O.P. No.3 is the manufacturer of Propello Kichen Appliances and O.P. o.2 is the technician.
Therefore, it is crystal clear that O.P. No.2 is only a technician and being a technician O.P. No.2 is not at all responsible or liable for any service liability of the O.P. N o.1 & 3. So, this Case is not maintainable against O.P. No.2.
But in respect of O.P. No.1 & 3 as the dealer and manufacturer of the alleged product, they have not performed their duties for their bona fide customer i.e. the complainant. So, the relationship between the seller and buyer is not maintained and thus every people of the society will not believe upon the dealer or manufacturer.
O.P No.1 was as an agent of O.P. No.3 or the seller or manufacturer of the Product on Commission, if this be the so, then how O.P. No.1 can be escaped from his liability, so, O.P. No.1 is as liable as O.P. No.3 in deficiency in service.
In view of the above mentioned discussion it is cleared that complainant is a bona fide customer under O.P. No. 1& 3. So, in our opinion their lies the deficiency in service on the part of the O.P.No.1 & 3.
Under the above mentioned circumstances, the complainant is entitled to get the relief or reliefs as prayed for
Hence, it is
O R D E R E D
That the Consumer complaint Case No.56/2020 is allowed ex-parte with cost against O.P. No.1 & 3 and dismissed against O.P. No.2.
The Opposite party No.1 is directed to pay Rs. 21,000/- (Rupees Twenty one thousand) only along with an interest @ 8% from 01.01.2020 till the date of the realization by issuing an account payee cheque in favour of the complainant within 45 days The complainant is directed to return the alleged propello Kitchen Chimney, Model No. Dazzle, SL No. MCS1909DA01479 to the O.P. No.3 with the co-operation of O.P. No.1. The opposite party No.1 also directed to pay Rs.15,000/- (Rupees Fifteen thousand) only towards compensation and Rs. 5,000/- (Rupees Five thousand) towards litigation cost failing which the complainant is at liberty to execute the order as per law.
Let a plain copy of this order be furnished to the parties forthwith free of cost.
