DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 30th day of November 2022
Filed on: 21/08/2018
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt. Sreevidhia T.N. Member
C.C. No.348/2018
Between
COMPLAINANT
Anish M.D, S/o Damodaran Namboothiri, residing at Mazhuvanchery Illam, Perumballoor, Muvattupuzha, Ernakulam-686673
(Rep. by Adv. Krishkumar J., Adoor, High Court of Kerala, Kochi)
VS
OPPOSITE PARTIES
1. Usha International Ltd, Registered office, Surya Kiran Building 19, Kasturba Gandh Marg, New Delhi.
2. Usha International Ltd., Plot No.15, Institutional Area, Sector 32, Gurgaon-122001, Haryana.
3. Usha International Ltd. Company Showroom, Telstar Building, M.G. Road, Ravipuram, Kochi-682016.
4. Usha International Ltd., Sales Office, IX/418/A1, Logistic Park, Thengode.P.O., Edachira, Kakkanad, Pin – 682030.
(Rep. by Adv. Nidhi Sam John, M/s. A.V. Thomas Associates, 1st Floor, Carmel Buildings, banerji Road, kochi 682018)
FINAL O R D E R
D.B.Binu, President.
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under section 12 (1) of the Consumer Protection Act,1986. The complainant is a priest in Temple at Ernakulum. The 1st opposite party is the registered office of a private Ltd Company. The 2nd opposite party is the manufactures of all products of the 1st opposite party, the 3rd opposite party is a showroom of the 1st opposite party, and the 4th opposite party is the sales office of the 1st opposite party. Fascinated by broachers and advertisements issued and published by opposite parties, the complainant and his wife decided to purchase a sewing machine for their personal use. Then the complainant and his wife approach the 3rd opposite party for purchasing the sewing machine. At that time, the 3rd opposite party made a promise to the complainant and his wife that the sewing machine is good quality will function for many years without any problem, and can be operated in a smooth and effortless manner. Believing the above said words of 3rd opposite party, the complainant purchased sewing machine “Sm STICH MAGIC WTT H MOTOR" from 3rd opposite party on 20.07.2016 for an amount of Rs.16,631/- as per invoice No.25748551. The opposite party issued a warranty card at the time of purchasing the above sewing machine and acknowledged that the said sewing machine is covered by warranty for the period of 2 years for any defects and one year for the motor. Further, the opposite parties warranted that the above said sewing machine is free from all defects in the materials used, workmanship and manufacture and is also of high grade and consistent with established and generally accepted standards. The 1stpposite party further guaranteed that in case of any damage that occurred in the said machine, the machine will be replaced free of cost. Believing all those promises of the 1st opposite party, the complainant purchased the above-said sewing machine from the 1st opposite party by paying the full amount. After the purchase of the machine, the complainant and his wife were using the same with due care and attention. However, within a very short period of time from the date of purchase the said machine’s handle was not working properly. Immediately the complainant approached the 3rd opposite party and the defect was repaired by the 3rd opposite party.
After few months the same complaint occurred to the machine and the machine was again entrusted with the 4th opposite party for the same fault. The 4th opposite party repaired the machine and corrected the defect and it was assured by the 4th opposite party that similar complaints will never happen again. Thereafter the Service Executive of opposite parties assured that the warranty as per the conditions will be in force and the complainant will be getting the entire benefits and there will not be any problem thereafter. The service executive further observed that the defect happened because of some manufacturing defect from the side of the opposite parties and moreover they had no opinion that the defect had happened due to the improper use of the machine by the complainant. In fact, the complainant was using the above-said machine with due care and attention. However, to the total disappointment of the complainant the machine was found to be defective again. Even though the complainant contacted the opposite parties thrice there was no response from the side of the opposite parties. Because of the above-said act of the opposite parties, the complainant suffered much mental agony and pain. The machine was damaged solely due to the manufacturing defect, faulty material, inferior quality, and workmanship at the time of manufacturing of the machine. There is a clear defect and deficiency in the service of the opposite parties. By selling a defective product to the complainant the act of the opposite parties is nothing but an unfair trade practice and deficiency of service. The opposite party's latches, negligence, and culpable laxity have caused severe mental pain to the complainant. The Opposite Parties have committed unfair trade practice and deficiency of service by depriving the Complainant and the same is evident from the hardships and embarrassment suffered by the Complainant. The complainant had approached the Commission seeking an order directing the opposite parties to replace the defective sewing machine with a brand-new similar model machine with warranty and other amenities or to pay an amount of Rs.16,631/-, Rs.40,000/- as compensation for the mental suffering and other inconvenience faced by the complainant and the costs of the proceedings.
2) Notice
Notice was issued from the Commission to the opposite parties and the opposite parties received the notice, entered appearance and filed versions.
3) Version of the Opposite Parties
The sewing machine was purchased by the complainant on 20.07.2016 after a product demonstration was done in front of him and his wife. The initial complaint was reported on 20.10.2017, i.e., after using the machine for a period of one year and three months. If the machine had any manufacturing defect, fault, imperfection, or inadequacy in the quality, it would have shown the complaint much before. On inspection, the presence of coconut oil mixed with kerosene, which is not advisable to be applied on the machine, was found in the motor part of the machine and that caused damage to the motor. The bush was stuck and on account of the attempt to run the machine with a damaged bush, the coil was in burnt condition. On enquiry, the complainant admitted that a mixture of kerosene and coconut oil was used for lubrication in the wrong area namely the hole near the bobbin case winder. Oil is never applied in this type of machine except for a drop near the shuttle assembly and never in or near the motor part. This was clearly explained to the complaint at the time of the demonstration. The main two parts of the machine are the motor and shuttle assembly. The warranty period for the motor is only one year. Replacement of the motor after the warranty period is chargeable which was informed to the complainant. Even though the lawyer’s notice was caused to be issued by the complainant without any valid reason, the opposite parties informed the complainant that they are ready and willing to repair the machine free of cost. Hence the contention of unfair trade practice from the side of the opposite parties is unsustainable.
There is no reason for the complainant to claim replacement of the machine or compensation for mental suffering. He is also not entitled to get the cost of the proceedings from these opposite parties.
3) . Evidence
The complainant had filed a proof affidavit and 5 documents that were marked as Exhibits-A-1- to A-5. The complainant was examined as PW1.
Exhibit A-1. Invoice dated 20.07.2016 issued by Usha international Itd company showroom M.G.Road,Ravipuram.
Exhibit A-2: Warranty card dated 20.07.2016 issued by showroom M.G.road, Ravipuram.
Exhibit A-3: Copy of the lawyer notice dated 05.01.2018.
Exhibit A-4: Copy of the acknowledgment card 12.01.2018
Exhibit A-5: Copy of the reply notice 02.02.2018
The opposite parties had filed a proof affidavit and produced 3 documents that were marked as Exhibits B-1- to B-3.
Exhibit B-1: copy of the initial complaint was reported on 20.10.2017.
Exhibit B-2: Copy of letter dated 28.08.2019 issued by the opposite party to the complainant.
Exhibit B-3: Copy of postal acknowledgment dated 03.09.2019 by the complainant.
6) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
The issues mentioned above are considered together and are answered as follows:
The complainant submitted that the complainant is a consumer as defined under the Consumer Protection Act, of 1986. The complainant purchased named “Sm STICH MAGIC WTT H MOTOR" from 3rd opposite party on 20.07.2016 for an amount of Rs.16,631/- as per invoice No.25748551is marked as Annexure A-1. Therefore, we are only to hold that the complainant is a consumer as defined under the Consumer Protection Act, 1986. Point No. (i) goes against the opposite parties.
In the above case, the Complainant has produced EXHIBIT A1 to A5. All in support of their case. The above complaint was filed against the opposite parties for the deficiency of their service. The opposite party issued a warranty card at the time of purchasing the above-said sewing machine and acknowledged that the said sewing machine is covered by warranty for the period of 2 years for any defects and one year for the motor which is marked as Exhibit A2. The opposite parties warranted that the above-said sewing machine is free from all defects in the materials used, workmanship and manufacture and is also of high grade and consistent with established and generally accepted standards. The 1st opposite party further guaranteed that in case of any damage is occurred in the said machine, the machine will be replaced free of cost as per the warranty agreement. Believing all those promises of the 1st opposite party the complainant purchased the above-said sewing machine from the 3rd opposite parties by paying the full amount. After the purchase of the machine, the Complainant has been using the same with due care and attention. However, within a very short period of time from the date of purchase said machine's handle was not working properly. Immediately Complainant approached the 3rd opposite party then the defect was repaired by the 3rd opposite party. After a few months, the same complaint occurred to the machine, and the machine was again entrusted with the 4th opposite party for the same fault. The 4th opposite party repaired the machine and corrected the defect and it was assured by the 4th opposite party that similar complaints will never happen again. Thereafter the Service Executive of opposite parties assured that the warranty as per the conditions will be in force and the complainant will be getting the entire benefits and there will not be any problem thereafter. The service executive further observed that the defect happened because of some manufacturing defect from the side of the opposite parties and moreover they had no opinion that the defect had happened due to the improper use of the machine. In fact, the Complainant using the above-said machine with due care and attention. The total disappointment of the complainant the machine was found to be defective again. Even though the complainant contacted the opposite parties thrice there was no response from the side of the opposite parties. All the above-stated defects occurred within the period of warranty of the above-said machine and there is no violation of any of the terms and conditions stated in the warranty card issued by the opposite parties. Because of the above-said act of the opposite parties, complainant has suffered much mental agony and pain. The compensation for the same cannot be estimated in terms of money. In fact, the action of the opposite parties had pained that much. The opposite parties are negligent in discharging their duties as expected. The opposite parties are equally liable and responsible for the defect caused to the machine. They are equally liable to replace the above-said machine with a new one as well. The machine was damaged solely due to the manufacturing defect, faulty material, inferior quality, and workmanship at the time of manufacturing of the machine. The act of selling a defective product amounts to unfair trade practice and deficiency of service. Opposite party had sold a defective product to the complainant and thereby committed deficiency of service and unfair trade practice which resulted in causing mental pain and hardship to the complainant. The opposite party's laches, negligence, and culpable laxity have caused severe mental pain. The complainant issued a registered notice to the Opposite Parties on 05.01.2018, marked as Exhibit A-3. Even though the same was received by them on 12.01.2018 marked as Exhibit A-4, they did not comply with the request made in the notice and they sent a reply notice with the same excuse on 02.02.2018 that was not satisfactory, marked as Exhibit A-5.
The opposite parties submitted that the initial complaint was reported on 20.10.2017 (Exhibit -B-1), i.e., after using the machine for a period of one year and three months. If the machine had any manufacturing defect, fault, imperfection, or inadequacy in the quality, it would have shown signs much before. (Exhibit -B-1) shows that the defect at that time was with the bobbin case, which is not covered under the warranty but the same was corrected to the satisfaction of the complainant. The complainant has admitted that oil was used in the machine in his cross-examination also. Oil is never applied in this type of machine except for a drop near the shuttle assembly and never in or near the motor part. This was clearly explained to the complaint at the time of the demonstration. Moreover, the opposite party had also replied to the notice of the complainant by a letter dated 28.08.2019 (Exhibit B-2) and explained that the machine was stuck due to the usage of oil. There was no denial of the same from the complainant. At the Cross-examination of the complainant, this opposite party asked a specific question that whether he had stated the exact defect of the product in the complaint. But his answer was negative. It is pertinent to note that the complainant alleges a complaint, if manufacturing defect to the product he purchased, there must be a specific pleading for the same. If the complainant alleges a manufacturing defect to the product and cannot determine the same without proper analysis. Then the expert opinion is necessary to state that the product is having manufacturing defect. The complainant took no steps to determine the so-called manufacturing defect with the assistance of an expert as per section 38 (c) of the Consumer Protection Act, 1986. The warranty period for the motor is only one year. Replacement of the motor after the warranty period is chargeable which was informed to the complainant. It is submitted that whenever a customer raises any complaint, these opposite parties give due care and the best service to them. It is pertinent to note that even after the filing of this complaint, these opposite parties through a registered letter dated 28.08.2019 (Exhibit -B-2] informed the complainant that the Opposite parties are ready to repair the machine free of cost. The complainant received the same on 03.09.2019 (Exhibit -B-3).
The complainant submits that within a very short period of time from the date of purchase said machine's handle was not working properly. Immediately the complainant approached the 3rd opposite party and the defect was repaired by the 3rd opposite party. After a few months, the same complaint occurred to the machine, and the machine was again entrusted to the 4th opposite party for the same fault. The 4th opposite party repaired the machine and corrected the defect and it was assured the 4th opposite party that similar complaints will never happen again.
Nachiket P. Shirgaonkar v/s Pandit Automotive Ltd. & Another, Revision Petition No. 3519 of 2006 in Appeal No. 1953 of 2005, Decided On, 25 February 2008, At, National Consumer Disputes Redressal Commission.AIR 2008 (NOC)2260(NCC)
“In this case, from day one onwards the vehicle was found to be defective which was admitted by the dealer himself through his letters. Naturally, encountered with these problems the consumer must have been shell shocked compelling him to knock at the doors of the Consumer Forum. Even before the Consumer Forum in the written submissions filed by OP 1, there is a clear admission of the manufacturing defects. Hence, we are convinced that the vehicle did suffer from manufacturing defects. This is a clear case of res ipsa loquitur i.e. facts speak themselves hence there is no need to refer the vehicle to a third party for giving an opinion.”
In the present case, after a short duration of the purchase of the sewing machine, the problem occurred in it. Though it was rectified yet again the same problem crept up. When the same problem crept up again and again, we are of the view that the sewing machine had some manufacturing defect not capable of being removed and the same was not in a worthy of use.
We find the issue Nos. (ii), (iii), and (iv) are found in favour of the complainant for the serious deficiency in service that happened on the side of the opposite parties. Naturally, the complainant had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite parties.
As a result, we direct as follows;
(i) The opposite parties shall refund the complainant an amount of Rs.16,631/- (Rupees sixteen thousand six hundred thirty one only) towards the price of the defective sewing machine.
(ii) The opposite parties shall pay the complainant Rs.25,000/- (Rupees twenty five thousand only) in compensation for the mental agony and harassment caused.
(iii) The Opposite parties shall also pay the complainant Rs.5,000/- (Rupees five thousand only) towards the cost of the proceedings.
The Opposite parties shall be jointly and severally liable for the above-mentioned directions which shall be complied with by the Opposite Parties within 30 days from the date of the receipt of a copy of this order.
Failing which the amount ordered vide (i) and (ii) above shall attract interest @7.5% from the date of receipt of a copy of this order till the date of realization.
Dictated to the Confidential Assistant Smt. K.P. Liji transcribed and typed by her corrected by me and pronounced in the Open Commission this 30th day of November 2022.
Sd/-
D.B.Binu, President
Sd/- V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
APPENDIX
COMPLAINANT’S EVIDENCE
Exhibit A-1. Invoice dated 20.07.2016 issued by Usha international Itd company showroom M.G.Road,Ravipuram.
Exhibit A-2: Warranty card dated 20.07.2016 issued by showroom M.G.road, Ravipuram.
Exhibit A-3: Copy of the lawyer notice dated 05.01.2018.
Exhibit A-4: Copy of the acknowledgment card 12.01.2018
Exhibit A-5: Copy of the reply notice 02.02.2018
OPPOSITE PARTIES’ EVIDENCE
Exhibit B-1: copy of the initial complaint was reported on 20.10.2017.
Exhibit B-2: Copy of letter dated 28.08.2019 issued by the opposite party to the complainant.
Exhibit B-3: Copy of postal acknowledgment dated 03.09.2019 by the complainant.
Despatch date:
By hand: By post
kp/
CC No. 348/2018
Order Date: 30/11/2022
