20.09.2017
MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.
Present appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred by the Appellant/O.P. No. 2 challenging the judgment and order dated 23.12.2014 passed by the Learned District Forum, South 24 Parganas in Complaint Case No. 276/2014 allowing the complaint ex-parte with cost of Rs.5,000/- against the O.Ps.
The O.Ps were further directed to refund an amount of Rs.23,500/- with interest @ 9% per annum from 24.06.2013 till the date of the impugned judgment and order. They were also directed to pay a compensation of Rs.50,000/- for the mental agony and harassment sustained by the Complainant and the litigation cost as well within one month from the date of impugned judgment and order, failing which, they were directed to pay penalty @ Rs.500/- per diem from the date of default till payment.
The O.Ps were given liberty to take back the dishwasher in as it is condition from the custody of the Complainant.
The case is that the Respondent No. 1/Complainant purchased a dishwasher from the Respondent No. 2/O.P. No. 1on 24.06.2013 on payment of Rs.23,500/- by cash with a discount of Rs.200/- which should have been at least Rs.3,000/- for exchange of an old washing machine.
The dishwasher machine did not functioning properly since the date of purchase of the same. The machine, on its malfunctioning being reported, was inspected by the messenger of the service centre only to be told to the Respondent No. 1/Complainant that some parts of the machines are needed to be replaced. The machine was ultimately left unrepaired allegedly due to lack of availability of the said defective parts.
The Respondent No. 1/Complainant’s request for replacement of the defective machine being not heeded to by the O.Ps and the negotiations for the issues being remained unresolved even after intervention from the Assistant Director, Consumer Affairs and Fair Business Practices, South 24 Parganas, the Respondent No. 1/Complainant, finding no other alternative, sent a legal notice to the Appellant/O.P. No. 2 and Respondent No. 2/O.P. No. 1 with the same request for replacement of the dishwasher. The same legal notice was proved equally futile compelling the Respondent No. 1/Complainant to resort to the Ld. District Forum filing the subject complaint which the impugned judgment and order relates to.
Heard the Ld. Advocates appearing on behalf of both sides.
The Ld. Advocate appearing on behalf of the Appellant/O.P. No. 2 submitted that the complaint was heard ex-parte against the O.Ps. In fact, as the Ld. Advocate continued, the notice of the complaint case was never served upon the O.Ps. The Appellant/O.P. No. 2, therefore, was deprived of the opportunity of placing its submission before the Ld. District Forum.
The subject machine, as the Ld. Advocate went on to submit, was still functioning and the Appellant/O.P. No. 2, in consideration of the organization’s goodwill, was ready to replace the machine or to make repayment of the cost of the machine if the Respondent No. 1/Complainant so desired.
With this, the Ld. Advocate concluded his submission.
The Ld. Advocate appearing on behalf of the Respondent No. 1/Complainant, per contra, submitted that the notices in the instant appeal were served in the same address as recorded in the complaint. The Appellant/O.P. No. 2’s attending the hearing of this appeal only indicated that the notice was properly served upon him. This left no room to consider the improper service or non-service of notice as alleged in the complaint where the address was identical to that of the instant appeal.
As submitted, the Appellant/O.P. No. 2 had knowledge about the execution case filed against him before the Ld. District Forum which indicated that he received the notice of the execution case sent to him in the same address. Same observation could be arrived at when the Appellant/O.P. No. 2, in response to the notice served upon him in the same address, contended the reconciliation meeting convened under the aegis of the Assistant Director, Consumer Affairs and Fair Business Practices.
As further submitted, there was no opinion from the expert by the Appellant/O.P. No. 2 for inspection of the machine.
The Ld. Advocate continued that the Appellant/O.P. No. 2 never cared for repairing the defect of the machine or replacement of the machine which developed certain defects since the date of purchasing of the same, i.e., within the period of warranty.
The Ld. District Forum, as contended, passed the impugned order on correct appreciation of the deficiency on the part of the O.Ps which was needed to be upheld.
The Ld. Advocate for the Appellant/O.P. No. 2 in reply submitted further that (1) one clear difference in recording of two different addresses of the Appellant/O.P. No. 2 came apparent at running page 7 and running page 26 of the case record leaving reason to suspect that the notices in the complaint case was misdelivered.
(2) The warranty card at running page 24 which was handed over to the Respondent No. 1/Complainant had clear recording of address of the Appellant/O.P. No. 2. The Respondent No. 1/Complainant would not have made any mistake in sending hearing notices of the complaint to the proper address had he verified the address of the Appellant/O.P. No. 2 in the warranty card.
(3) There was no expert opinion as the expert deputed for examining the machine did not find any defect in the machine.
(4) The Appellant/O.P. No. 2 could attend the reconciliation meeting conducted by the Assistant Director, Consumer Affairs Department and Fair Business Practices because of the fact that the information about the meeting was conveyed to them also over telephone by the said Department.
Perused the papers on record. A machine newly purchased, if functions properly only creates satisfaction towards good utilization of one’s heard earned money for one’s purchase. Repeated ventilation of grievances towards improper or non-functioning of the machine by any purchaser since the date of purchasing – as on the instant occasion - does not tell of efficiency of the machine, the alleged defect of which, as prima facie appeared to have been left unintervened till the issue was taken up by the Department of Consumer Affairs. The plea of the notice of the complaint case remaining unserved did not hold good here in view of the fact that the notice served in the same address in the appeal was received by the Appellant/O.P. No. 2. The same thing happened in the case of execution proceeding in the Ld. District Forum also.
The onus to look after any defect developed in the subject machine, covered under warranty, devolved upon the O.P. organization. We did not find any report of the expert who inspected the machine. Therefore, there was no report about the cause of the machine failure, nor was there any information about the machine’s functioning at the intervention of the said expert.
In view of the above, it would not be unusual expectation that the Appellant/O.P. No. 2 would take proper initiative for repairing or replacing the machine which they are agreed to at present. There the deficiency lies on the part of the Appellant/O.P. No. 2.
We, however, do not agree with the interest, compensation and penalty awarded in favour of the Respondent/Complainant since those appear to be on the higher side and feel that the impugned order was needed to be suitably modified to that extent.
Hence, ordered that the appeal be allowed in part with cost of Rs.5,000/- against the O.Ps. The O.Ps are directed to refund the sum of Rs.23,500/- being the cost of the machine receiving back the defective dishwasher machine on “as is where is basis” from the Respondent No. 1/Complainant.
The O.Ps are directed to pay a compensation of Rs.5,000/- for the mental agony and harassment sustained by the Respondent/Complainant within 45 days from the date of this order. In case of failure to make payment within the aforesaid deadline, simple interest @ 9% per annum shall accrue on Rs.28,500/- (Rs.23,500 + Rs.5,000) from the date of default till the amount is fully realized. Other directions of the impugned order stand set aside.
