O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> <br /> The grievance of the complainant against the Op in brief is, that he had purchased a Mixer Grinder from Op No.1 on 26/05/2008 for Rs.2,900/- and had told him that it covered two years warranty period from the date of purchase. From the day one of its usage its performance was not satisfactory and it had inherent manufacturing defects. Then he contacted the Ops several times through telephone but did not get proper response. Then he contacted one Balachandra of the first Op on 13/04/2009 Ops told him to take the Mixer to their service centre. Accordingly, he had given Mixer Grinder for repair and stated that the Jar of the mixer could not be fixed on the groove provided on the top cover because of which the Mixer was not functioning well. The Ops fixed the top cover permanently so as to not to open the same for any purpose. Even thereafter it was not working properly. Then on 14/10/2009 he gave the Mixer along with three jars and three couplers which were not working. Then Ops gave him only two jars and Mixer by replacing damaged parts and three jars were not returned for non availability of the spares. Then three jars were returned after lapse of one month. Then again when problem repeated, on 10/11/2009, he gave Mixer for repair. Then again on 28/11/2009 the Mixer was given for further repair and stated that after all these repairs, the Mixer Grinder was not working well. Therefore, when the Ops failed to provide efficient service he got issued a legal notice and stated that the Ops have caused deficiency in their service and to direct the Ops to refund Rs.2,900/- the cost of the Mixer Grinder, award Rs.25,000/- towards mental agony and Rs.50,000/- towards selling defective product and also to award expenses of Rs.8,000/-. <br /> <br /> Ops 1 and 2 have appeared through their advocate and filed versions. Op No.1 admitted to have sold the Mixer Grinder to the complainant but denied the allegations of manufacturing defects in the product. It is further stated that they are selling the products in volumes and no complaints are received and stated that the complainant has not produced any documents to prove the loss suffered by him and stated that the complaint is not bonafides and has prayed for the dismissal of the complaint.<br /> <br /> Op No.2 is a manufacturing company of the Mixer Grinder has stated that they are manufacturing and marketing their product since 5 decades and no complaints of considerable nature are received. This Op admitting that their product was sold by the Op No.1 to the complainant has stated that the complainant had no problem in the product after it was purchased but because of the improper use by the complainant it has resulted in malfunctioning and that the complainant has not used the product as per the manual. Though the problem in the product was self created but still they replaced the damaged part free of cost and instructions were given to the complainant of its proper use. Further stated that they saw that the body lock of the grinder had broken when the complainant had forcefully tried to lock the jar of the Mixer Grinder without properly placing the jar on the Mixer Grinder which resulted in breaking the lock even then have stated that as a goodwill gesture they repaired free of cost and attributed negligence to the complainant in not using it properly. Op No.2 has further stated that they have after repairing the Mixer Grinder kept it ready for delivering it to the complainant but the complainant did not take delivery of the same and have offered to demonstrate its functioning before this forum if permitted and thereby denying all the allegations of the complainant has prayed for the dismissal of the complaint.<br /> <br /> In the course of enquiry into the complaint, complainant and the Ops have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. Complainant has produced a copy of the warranty card, copy of their job cards with a copy of legal notice he got issued to the Op. Ops have not produced any documents. Counsel for Op No.2 has filed written arguments. We have heard the counsel for remaining parties and perused the records.<br /> <br /> On the above contentions, following points for determination arise.<br /> <br /> 1. Whether the complainant proves that the Mixer Grinder supplied by the Ops is having manufacturing defects and that the Ops have failed to refund the cost of the Mixer?<br /> 2. To what relief the complainant is entitled to?<br /> <br /> Our findings are as under:<br /> <br /> Point No.1 : This point is answered in part holding that the complainant <br /> has not proved the manufacturing defect in it. However, <br /> considering the facts of the case, complainant is given partial <br /> relief.<br /> Point No.2 : See the final order.<br /> <br /> REASONS<br /> <br /> Answer on point No.1: On going through the contentions of the parties as canvassed in their complaint and version, we find no dispute in this complaint having had purchased the Mixer Grinder manufactured by Op No.2 from the dealer Op No.1 on 26/05/2008 for Rs.2,900/-. The complainant’s contention that the Mixer Grinder had two years warranty is not denied by the Ops. The Ops have denied the allegations of the complainant that the product he purchased had manufacturing defect. The complainant who alleges manufacturing defect in the product purchased by him is required to substantiate it through evidence or the opinion of the expert or with the assistance of a competent person or authority. The counsel appearing for Op No.2 by relying upon two decisions one of National Consumer Disputes Redressal Commission rendered in Revision Petition No.5021/2008 and another decision of State Consumer Disputes Redressal Commission, Bihar reported in 1992 (2) CPR page 759 submitted that the complainant has not proved the manufacturing defect through expert evidence are opinion as such the allegations of the complainant can not be believed. We agree with the submission of the counsel for the second Op that the complainant has not been able to prove the manufacturing defect in the product as such we answer that point in the negative.<br /> <br /> Ops are not denying the defect as pointed out by the complainant and are also not disputing the job cards issued on 14/10/2009, 10/11/2009 and 28/11/2009 produced by the complainant under which the complainant had given the Mixer Grinder to the service centre of the Ops for repairs often. The second Op has taken a stand as if those problems in the product are of self made by the complainant and elaborated by contending that the complainant without using the product as per the manual and instructions has mishandled the Mixer. As the result defect was noticed and has further stated that the defect was attended free of cost as a goodwill gesture to the complainant. But the second Op too has not proved whether that defect was caused by mishandling of the product by the complainant or in using that product against the manual instructions. The second Op could have proved that groove provided on the top of the cover was broken because of improper locking of the jar by the complainant. Op No.2 in his version and also in the affidavit evidence admitted that when their technician examined the product they found that the body lock in the body of the grinder had broken and it is further stated that broking of the lock revealed that the complainant had forcefully tried to lock the jar of the Mixer grinder without properly placing the jar on the mixer grinder resulting in breakage of the lock but the second Op has not produced such opinion of their technician who examined the mixer and gave the report. Op No.2 has not even got the affidavit of that technician filed to prove as to what he has stated is true. Even in the course of arguments, this forum suggested to the counsel of the second Op whether the second Op could bring the Mixer Grinder to the forum and demonstrate about its proper functioning and the cause for break down. The counsel for the second Op did not agree for it but submitted for disposal of the complaint on merits.<br /> <br /> The second Op in his version and also in the affidavit evidence has stated as if he has kept the Mixer Grinder ready after effective repair and he had even offered it to the complainant but the complainant himself did not go and collect it. He has also further stated that he is ready and willing to demonstrate the proper working condition of the product before this forum. But we do not understand as to why the counsel for the second Op refused to bring the product to the forum and demonstrate of its effective functioning and easy handling. This forum had also told the counsel if the product is working then the forum could even tell the complainant to accept it but the counsel for the second Op declined the direction of this forum. The case of the complainant that the Ops after repair have fixed the top cover of the Mixer Grinder permanently as to not to open the same for any purpose has not been denied by the Ops. Counsel for the complainant in the course of arguments submitted by such fixing the jar they can not take out the jar as the result the complainant at all time of use has to lift and tilt the hole mixer to take out the grinded product. Therefore, it is evident that this defect in the Mixer has developed within the warranty period and that product was given repeatedly for repairing speaks of its functioning and under these circumstances to accept the same. Therefore, considering the fact that the complainant has used the Mixer Grinder from 26/04/2008 till April 2009 for about a year is not entitle for refund of the entire cost of the mixer. Hence, keeping in mind the service of the complainant availed, depreciation in the value of the product, we find it just to award reasonable damages to the complainant. We therefore answer point No.1 accordingly and pass the following order.<br /> <br /> O R D E R<br /> <br /> 1. Complaint is allowed in part. Op No.2 is ordered to refund Rs.2,000/- being depreciation cost of Mixer Grinder as damages to the complainant within 30 days from the date of this order.<br /> 2. Op No.2 is also directed to pay Rs.1,000/- to the complainant towards inconvenience caused to him within 30 days from the date of this order.<br /> 3. Op failing to refund the above amount within the stipulated period he shall pay interest @ 10% p.a on those amounts from the date of this order till the date of payment.<br /> 4. Op No.2 shall also pay cost of Rs.5,00/- to the complainant.<br /> 5. Complaint against Op No.1 is dismissed.<br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 23rd July 2010.<br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />