This complaint has been filed by Prem Lal through his Special Power of Attorney Darshan Kumar U/S 35 of the Consumer Protection Act, (hereinafter for short the Act) for issuance of the necessary directions to the opposite parties to replace the defective Washing Machine with new one or to refund its full price alongwith interest. Opposite parties be further directed to pay Rs.20,000/- as compensation on account of mental agony, harassment and torture and any other relief this Hon’ble Commission deems fit be granted to the complainant.
2. The case of the complainant in brief is that he is serving in Indian Army and at present he is posted at Delhi, as such he is unable to file and pursue the present complaint personally. So, he has authorized his brother for filing this complaint vide Special Power of Attorney dated 7.7.2020. On 20.09.2018 he had purchased a Washing Machine Make Intex 8.5 Model Active wash from opposite party no.1 vide invoice no.604 for Rs.11,900/- and its guarantee was given for two years and warranty for three years. It is pleaded by the complainant that the abovesaid washing machine become out of order in the month of March 2019 as electric current was coming in the machine during its use and his wife suffered electric current 3-4 times during its use. He reported the matter to the opposite party no.1 on which mechanic of the opposite parties came to his house and tried to remove defect, but all in vain. He again lodged complaint with opposite party no.1 on which motor of the washing machine was replaced but the electric current continue to come in the machine during its use. It was also pleaded by the complainant that in the month of Feb.2020, he again approached the opposite party no.1, who told him to bring Washing Machine in their shop and they would replace the same with a new machine as there is manufacturing defect in it could not be removed and he handed over the machine to the opposite party no.1 on 14.2.2020 in good faith. Thereafter, he paid number of visits to his shop and requested them to give him new machine but they always use to put the matter with the pretext that matter has been taken up with opposite party no.2 and new machine would be given to him, once the same is received from opposite party no.2. He also served legal notice dated 22.06.2020 to the opposite party no.1 with a request to do the needful into the matter but due to Lockdown, notice was not posted to opposite party no.2. The opposite party no.1 has duly acknowledge the notice but despite the service of notice, the opposite party no.1neither given any reply not taken any action for redressal his grievance. Thus, there is deficiency in service and unfair trade practice on the part of the opposite parties, hence this complaint.
3. Opposite party No.1 appeared through its counsel and filed its written reply by taking the preliminary objections that complaint of the complainant is not maintainable in the present forum; the complaint has no cause of action to file the present complaint and the complainant has not come to the Commission with clean hands and has suppressed true facts from this Commission. On merits, it was admitted that complainant had purchased the Washing Machine make Index 8.5 Kg from opposite party no.1 vide Invoice No.604 dated 20.9.2018 for Rs.11,900/-. It was denied that opposite party no.1 given guarantee for two years and three years warranty. However, the guarantee period of two years has been elapsed and the warranty if any, arises upon the said purchased article/good, the same is falls under the opposite party no.2 who is the manufacturer of the Washing Machine in question. It was next admitted that the matter was reported to the opposite party no.1 and on 10.1.2020, the motor of the washing machine was replaced with new one and after the change of motor, the washing machine was working properly and there was no such electric current in the machine. The employee of the opposite party no.1 removed the grievance of the complainant after verifying the articles/washing machine and fully satisfying the complainant vide complaints of the complainant bearing no.A011090000263. It was also denied that complainant handed over the machine to the opposite party no.1 on 14.2.2020 in a good faith. Actually, at the time of sale of washing machine to the complainant, it was completely packed and sealed by the company/opposite party no.2 and same was purchased by the complainant after fully satisfying. If there is any manufacturing defect in the company product, then the opposite party no.1 is not liable for the same and in that event the liability arises upon the opposite party no.2 who is the manufacturer of the said product. Thus, there is no deficiency and unfair trade practice on the part of the opposite party no.1. All other averments made in complaint have been denied and lastly prayed for dismissal of the complaint.
4. Notice of the complaint was issued to the opposite party no.2 was not received back. Case called several times but none had come present on its behalf, therefore, opposite party no.2 was proceeded against exparte vide order dated 19.11.2020.
5. Counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C9, Affidavits of Sh.Surjit Singh and Sh.Darshan Kumar Ex.C-10 and Ex.C-11 and closed the evidence of complainant.
6. Alongwith the written statement, counsel for the opposite party no.1 has filed affidavit of Sh.Ajay Kumar son of Sh.Satpal Proprietor Ex.OP-1.
7. Replication to the written statement filed by the opposite party no.1
8. Written arguments not filed by both the parties.
9. We have carefully gone through the pleadings of counsels for the parties; arguments advanced by their respective counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the purposes of adjudication of the present complaint.
10. In the present complaint filed through Power of Attorney, the complainant purchased a Washing Machine from opposite party no.1 of the make which belong to opposite party no.2 vide invoice dated 20.9.2018 placed at Ex.C-2. It is alleged by complainant that this product start developing some defect from March 2019 and he has got it rectified through opposite party no.1 but lastly in February 2020 when the defect could not be removed. Opposite party no.1 suggested him to handover the product to him as there is a manufacturing defect in the product. Complainant further added that he had handed over defective product to opposite party no.1 for replacement as suggested by him.
11. Opposite party no.1 in their written statement denied all the allegations but admitted the purchase of washing machine from him being a supplier. It has been further stated by opposite party no.1 that if this product has manufacturing defect then liability of its replacement lies with opposite party no.2 being manufacturer of the product.
12. Opposite party no.2 has not responded as already stated and ordered as exparte.
13. It is understood that this machine has developed defects within a period of six months from the date of purchase as admitted by opposite party no.1 and warranty of two years has also been admitted by opposite party no.1. It is also admitted by opposite party no.1 that machine had a manufacturing defect but it is to be replaced by opposite party no.2. Hence we see that it is the responsibility of opposite party no.2 to replace the defective product or to refund the amount paid by the complainant.
14. From the evidential part, it is proved that the complainant time and again approached opposite party no.2 for removal of his grievance but was unnecessarily harassed by opposite party no.2 which amounts to deficiency in service on the part of opposite party no.2. The opposite party no.2 did not bother to appear in the Commission and prefer to proceed exparte vide order dated 19.11.2020 and also failed to satisfy the complainant and also did not care to contest the claim of the complainant and rebut the evidence led by him as aforesaid and as such it can be concluded without any hesitation that either opposite party no.2 admit the claim of the complainant or has nothing to say in the matter. In this way, the evidence led by the complainant goes un-rebutted and un-assailed. Hence we are of this view that present complaint can be best disposed of by giving directions to the opposite party no.2.
15. In view of the aforesaid discussion, considering facts and figures of the case present complaint is partly allowed and opposite party no.2 is directed to refund the amount paid Rs.11,900/- to the complainant alongwith interest @ 6% P.A. from the date of filing of the claim till its realization within 30 days of receipt of the copy of the orders. Opposite party No.2 is further directed to pay Rs.3,000/- as lumpsum for harassment and litigation expenses to the complainant. However, opposite party no.2 is at liberty to get back the defective product.
16. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
17. Copy of the order be communicated to the parties free of charges. file be consigned.
(Naveen Puri)
President
Announced: (B.S.Matharu)
September 16, 2022 Member
*MK*
