BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 30^th November 2016

PRESENT

        SMT. C.V. SHOBHA             :  HONBLE PRESIDENT

        SMT.LAVANYA M. RAI        :  HONBLE MEMBER                                        

                                                                                            COMPLAINT NO.405/2015

        (Admitted on 27.11.2015)

Sathyanarayan Bhat,

S/o Late Mahalinga Bhat,

Aged about 56 years,

R/at. Madyottu Nekkilady House,

Alankar Village,

Puttur Taluk. D.K.

                                                                ……… Complainant

(Advocate for Complainant by Sri. SD)         

VERSUS

1. Proprietor,

Rainbow polymers,

                   Manipal 576104

2. Proprietor,

Deviprasad Hardware, College Road,

Alankar Village,

Puttur Taluk, D.K. 574285.

                                                   …. Opposite Parties

        (Opposite Party No.1: Exparte)

        (Advocate for the Opposite Party No.2: MCK)

ORDER DELIVERED BY HON’BLE MEMBER

SMT. LAVANYA M. RAI

1. 1. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service as against the opposite party claiming certain reliefs.
2. The brief facts of the case are as under:

          The complainant has purchased 3000 liters Black Water Tank from the 2^nd Opposite party and on 05.03.2013 by paying Rs. 14,942/- as per tax invoice No.510 with an assurance that the tank is free from defects in workmanship and come free Replacement, if any defects in Material or workmanship is noticed, within a period of guarantee, from the date of purchase.  The water tank has 10 years of guarantee.  The above said tank had the problem of dropping/ leakage of water from last one year from the side of outlet hole.  The tank appears to have a breakage and thereby water rushes with immense pressure from that place.  Due to this leakage of water the complainant has lost his patience and suffered mentally and monetarily.  In spite of the complainant timely notice to the 2^nd Opposite Party of the about said facts, the 2^nd Opposite Party has failed to replace the tank till date.  Hence the complainant issued regd. notice dated. 11.06.2015 that due to this above said defect the complainant could not store the water for his Domestic use.  The defect was brought to the notice of 2^nd Opposite Party and the same was conveyed to the 1^st Opposite Party by the 2^nd Opposite Party.  It has caused huge physical and mental torture to the complainant, hence the above complainant filed under section 12 of the C.P Act 1986 (here in after referred to as the Act) seeking direction from this Forum to pay a sum of Rs. 14,942/ and also pay a sum of Rs. 50,000/ towards compensation mental agony stress undergone by the complainant along with 12% from the date of the complaint and cost of the proceedings.

3. Version notice served to the Opposite Parties by RPAD.  The Opposite Party No.2 appeared through counsel and filed vakalath.  In spite of vakalath Opposite Party No.2 not filed version and not lead any evidence.  On behalf of Opposite Party No.1 after receiving notice not appeared non represented in case till this date.  Hence Opposite Party No.1 placed exparte.
4. In support of the complainant One Mr. Sathyanarayana Bhat, (CW1) complainant No.1 filed affidavit reiterating what has been stated in the complaint and produced the document got marked as Ex C1 to C5.  On behalf of the opposite parties not lead any evidence hence treated nil.

In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complainant proves that the 3000 liters Black Water Tank from the 05.03.2013 opposite party found to be defective?
2. Whether the complainant proves that  there is a deficiency  of service on the part of the Opposite Parties?
3. If so, for what relief and from whom the complainant entitled?
4. What order? 

We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:.

Point No. (i) to (iii): As per Affirmative

Point No. (iv): As per the final order.

REASONS

V. POINTS No. (i) to (iii):  The complainant in order to substantiate the averments made in the complaint filed affidavit supported by the documents.  The Ex C1 is the original invoice dated 05.03.2013.  Which shows that the complainant paid Rs. 14,942/ for purchase of Black Water Tank.  The Ex C2 is the guarantee card other Exhibits are legal notice along with postal acknowledgment and receipt. Further we noted that the material evidence placed by the complaint it is proved that the above water tank have breakage and the same has some defect within 10 years of guarantee.  Which shows that the Opposite Party failed to maintain the quality or standard which is required to be maintained.  The entire evidence placed by the complainant not contradicted nor controverted by the Opposite Party, which requires no further proof. It is settled position that a person purchaser a new water tank for domestic purpose for his/her and not to suffer the inconvenience of repeated visits to the workshop and frequent deprivation of the case of the hand due to such snags.  Similarly in the present case, the complainant purchased the water tank by paying Rs. 14,942/ even thereafter in complainant approached the Opposite Party with several problems it shows the quality and standard of manufacturing of the produced sold by the Opposite Party. Generally, if the black water tank has manufacturing defect is to be borne by the manufacturer.  That would not mean that, the dealer is absolved from joint and several liabilities.  As we know, the manufacturer not deals with the customers directly dealer having received the amount under taken free service and rectify defect during the guarantee do not escape liability towards the manufacturing defect found in the black water tank.  As we know, the contract through dealer/service provider, private of contract is with them.  To ensure execution expeditiously and immediately, if necessary by making the payment/ replacement to the complainant initially and then it would be for the dealer to claim reimbursement but in this case Opposite Party not replace the defective take which amounts to deficiency in service from the manufacturer.  Therefore the dealer to and the manufacturer are jointly and severally liable for the defect found in the water tank in this case. In view of the above said reasons, we hold that the Opposite Party No.1 and 2 are jointly and severally shall refund of the cost of the black water tank Rs. 14,942/ by taking back the defective water tank and also pay of Rs. 10,000/ as damage to the complainant for the inconvenience and harassment caused.  Further pay Rs. 5,000/ as litigation expenses. Payment shall be made within 30 days from the date of this order.

IV. In the result, accordingly we pass the following Order:

ORDER

The complaint allowed.  The Opposite Party No.1 and 2 are jointly and severally shall refund of the cost of the water tank of Rs. 14,942/ (Rupees fourteen thousand nine hundred forty two only) by taking back the defective black water tank and also pay of Rs. 10,000/(Rupees ten thousand only) as damage to the complainant. Further pay Rs. 5,000/ (Rupees five thousand only) as litigation expenses. Payment shall be made within 30 days from the date of this order.  In case of failure to pay the above mentioned amount with in the stipulated time, the opposite parties are directed to pay interest at the rate of 12% per annum on the above said total amount from the date of failure till the date of payment.

Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room.

(1 to 6 pages dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th of November 2016)                  

              MEMBER                                                PRESIDENT        

(SMT. LAVANYA M.RAI)                          (SMT. C.V.SHOBHA)

D.K. District Consumer Forum                   D.K. District Consumer Forum

           Mangalore.                                                          Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW 1: Sathyanarayana Bhat

Documents marked on behalf of the Complainant:

Ex.C1: Dated: 05.03.2013 Copy of the Tax Invoice.

Ex.C2: Dated: 05.03.2013 Copy of the guarantee card.

Ex.C3: Dated: 11.06.2015 O/C of the regd notice.

Ex.C4: Dated: 12.06.2015 Postal Acknowledgement of 1^st Opposite Party.                            

Ex.C5: Dated: 18.06.2015 Reply of 2^nd Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

Nil

Documents marked on behalf of the Opposite Parties:   

Nil

Dated: 30.11.2016.                                               MEMBER