BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 25th of October 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.234/2010
(Admitted on 28.8.2010)
Dayananda Panjigaru,
Aged 44 years,
So Late Shivaram Nayak,
Rat Panjigaru House,
Balila Village,
Sullia Taluk. …….. COMPLAINANT
(Advocate for Complainant: Sri Sudhakar Rai.S.)
VERSUS
- Area Sales Manager,
P.K.L. Ltd.,
23C, 5th Cross, K.I.A.D.B.
Athibele,
Bangalore.
- Sri.Keshava Naya,
Proprietor Navaneeth Enterprises,
Wagle Complex,
Opp.Police Station,
Sullia D.K.
- P.K.L. Ltd.,
Corporate Office,
Office No.48,
Shrinagara Colony,
Hydarabad-500 073. ……. OPPOSITE PARTIES
(Opposite Parties: Exparte)
:ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
This complaint is filed under Section 12 of the Consumer Protection Act alleging defective in goods as against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, in the month of February 2008, he had purchased a Mixer Grinder from the Opposite Party No.2 by paying a sum of Rs.2,999/-. After purchase of the Mixer Grinder, he used the same for six months. In the month of August 2008, the said Mixer Grinder stopped working and taken to Opposite Party No.2 and asked for replacing as the defect occurred within the warrantee period. After one month i.e. in the month of September 2008, the Mixer Grinder was replaced with new one. After reaching home, when the box was opened, the knob of the Mixer Grinder was found to be out of order and the same was returned back to the Opposite Party No.2. Thereafter, the Complainant had contacted Opposite Party No.1, who is the manufacturer through the phone, but Opposite Party No.1 not given satisfactory answer. Hence, the Complainant had written the letter dated 22.12.2008 to Opposite Party No.1 and 2 calling upon them either to refund the amount or to replace the Mixer Grinder. After receipt of the letter dated 22.12.2008, the Opposite Party No.2 requested the Complainant to handover the Mixer Grinder. Accordingly, the Complainant had handed over the Mixer Grinder to the Opposite Party No.2. After returning back the Mixer Grinder, after some time, the Opposite Party No.2 replaced with a new Mixer Grinder on 22.1.2009 and issued a two years warranty card. It is stated that, while receiving earlier Mixer Grinder, the Opposite Party No.2 also asked the Complainant to hand over the original bill to the Opposite Party No.2. Accordingly, the Complainant returned the original bill to the Opposite Party No.2 and Opposite Party No.2 neither issued new bill nor returned first bill.
It is further stated that, even the new replaced Mixer Grinder in the month of November 2009 again started problems, the Complainant wrote a letter dated 6.11.2009 requested the Opposite Parties to replace the Mixer Grinder or rectifying the defects or refund the amount. The said letter was received by the Opposite Parties, but there is no response from the Opposite Parties either to replace or to refund or repair the Mixer Grinder. It is stated that, the Mixer Grinder sold by the Opposite Parties is not upto the quality and it is defective. Hence, the above complaint filed under Section 12 and 13 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to refund a sum of Rs.2,999/- being the price of the Mixer Grinder with 12% interest per annum from November 2009 to till the payment of amount to the Complainant and further pay compensation and costs of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties despite of serving notice neither appeared nor contested the case till this date. Hence, we have proceeded exparte as against the Opposite Parties. The acknowledgement placed before the FORA marked as Court Document No.1 to 3.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Mixer Grinder Set purchased by him from the Opposite Parties suffers from manufacturing defect?
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.Dayananda Panjigaru, (CW1) filed affidavit reiterating what has been stated in the complaint. Ex C1 to C11 were produced for the Complainant as listed in the annexure. Since Opposite Parties placed exparte there is no evidence on record on behalf of the Opposite Parties.
We have heard and perused the pleadings, documents and evidence placed on record by the Complainant and answer the points are as follows:
Point No.(i) & (ii): Affirmative.
Point No.(iii) & (iv): As per the final order.
REASONS
5. POINTS NO. (i) to (iv):
In the instant case, the Complainant sworn to the fact that, in the month of February 2008, he had purchased a Mixer Grinder i.e. Clix Mix Magic Plus manufactured by Opposite Party No.3 by paying Rs.2,999/- as per Ex.C1. It is stated that, after purchasing the grinder, he had used the same for six months. In the month of August 2008, all of a sudden the mixer grinder stopped working and thereafter, he had taken the mixer grinder to the Opposite Party No.2 and asked for replacement as the defect occurred within the warranty period. Thereafter, Opposite Party No.2 in the month of September 2008 replaced new mixer grinder and once again refused mixer grinder also found defective. The Complainant approached the Opposite Party No.2, but there was no satisfactory answer and thereafter, the Complainant had written a letter dated:22.12.2008 to the Opposite Party No.1 and 2 i.e. Ex C2 calling upon the Opposite Party No.1 and 2 to refund amount or to replace the mixer grinder. Thereafter, Opposite Party No.2 took back the defective mixer grinder and replaced with a new one on 29.1.2009 and issued a two years warranty card as per Ex.C1. It is stated that, while receiving the defective mixer grinder the Opposite Party No.2 asked the Complainant to hand over the earlier bill, accordingly the Complainant had handed over original bill to the Opposite Party No.2. It is stated that, the replaced mixer grinder also in the month of November 2009 again caused problem. Thereafter the Complainant wrote a letter dated 6.11.2009 as per Ex.C5 requested Opposite Parties to replace mixer grinder or refund the amount. The said letter received by the Opposite Party No.1 and 2, but not complied the demand made therein. Thereafter, the Complainant issued the registered legal notice dated 10.4.2010 as per Ex.C6 calling upon the Opposite Parties to refund the amount and contended that, the mixer grinder is not up to the quality and defective and produced defective mixer grinder before this Forum, which has been marked as M.O.No.1.
Now the point for consideration is that, whether the Complainant proves that, the mixer grinder purchased from the Opposite Parties proved to be defective and defect found in the mixed grinder is within the warranty period.
On scrutiny of the oral as well as documentary evidence, we find that, the various correspondences between the Complainant and the Opposite Parties dated 22.12.2008, 6.11.2009 and 17.4.2010 and the legal notice dated 28.4.2010 i.e. Ex.C9 and the letter dated 23.4.2010 issued by the Opposite Party No.3 to the Complainant i.e. Ex.C10 clearly reveals that, the mixer grinder sold by the Opposite Parties suffers from defect and the said defect found within the warranty period. The Ex.C1 i.e. the Warranty Card proves that, the Complainant though purchased the Mixer Grinder in the month of February 2008, the same has been replaced with a new mixer grinder set on 29.1.2009 and issued a two years warranty card as per the Ex.C1, despite of that, the replaced new set also found defective in this case.
However, we noticed that, the Complainant produced the defective grinder set before this Forum as M.O.No.1. The correspondences proves that, the defect in the mixer grinder is continuous and the new replaced set also found defective. We observed that, the Opposite Parties have received the entire consideration and issued a warranty card. It is settled position of law that, where stipulation in a contract of sale is a warranty, its breach may give raise not only to claim for damages but also generally to right to treat the contract as repudiated. In the instant case, the defect noticed by the Complainant was not attended by the Opposite Parties despite of receiving legal notice as well as other correspondences. And the defect is still continuing till this date. The Complainant admittedly purchased the mixer grinder from the 2nd Opposite Party. After noticing the defects, the Opposite Party No.2 along with other Opposite Parties replaced the defective grinder, the replaced new grinder set also found defective as stated supra. The Ex.C1 warrants two years warranty for the manufacturing defect. Since the defect found within the warranty period, the Opposite Parties are liable to rectify the defect or replace the defective Mixer Grinder set.
We have noticed that, the Opposite Parties despite of receiving version notice neither appeared nor bothered to contest the case before this Forum till this date. That itself shows their carelessness and the attitude towards the customers. The entire evidence placed on record is not controverted nor contradicted by the Opposite Parties. Hence, which requires no further proof.
Generally, if the goods 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 receiving the amount, under taken free service and rectify defect during the warranty do not escape liability towards the manufacturing defect found in the goods. As we know, the contract through dealer, privity of contract is with him. To ensure execution expeditiously and immediately, if necessary, by making the payment to the Complainant initially and then it will be for the dealer to claim reimbursement from the manufacturer. Therefore, the dealer and the manufacturer both are jointly and severally liable for the defects found in the goods.
The Hon’ble National Commission reported in 2009 I CPJ (80) held as under:
“Defect found immediately after purchase, could not be rectified, joint and several liability imposed by the District Forum upheld in appeal holding that dealer having received the amount, undertaken free service and rectify defects during warranty cannot escape liability towards manufacturing defects found in the product”.
Similarly, the above principles observed by the Hon’ble National Commission applicable to the case on hand.
The Complainant proved beyond doubt that, the Mixer Grinder sold by the Opposite Party No.2 who is a authorized dealer proved to be defective and the same is not in working condition. Under that circumstances, there is no point in replacing the mixer grinder again and again to the Complainant. Since the replaced mixer grinder also found defective, the question of replacing or repairing the grinder does not arise. In view of the above, the Opposite Parties are jointly and severally hereby directed to refund the entire amount of Rs.2,999/- along with interest at 12% per annum to the Complainant by taking back the defective Mixer Grinder set i.e. M.O.1 produced before this Forum.
In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded. Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Parties are jointly and severally hereby directed to refund the entire amount i.e. Rs.2,999/- (Rupees Two thousand Nine hundred ninety nine only) i.e. cost of the Mixer Grinder set along with interest at 12% per annum to the Complainant by taking back the defective Mixer Grinder set i.e. M.O.1 produced before this Forum. And Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 10 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 25th day of October 2010.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri Dayananda Panjigaru – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 23.1.2009: Warrantee card along with hand book.
Ex C2 – 22.12.2008: Copy of the letter issued by the Complainant to Opposite Party No.2 and 3.
Ex C3 & 4 – 22.12.2008: Postal Receipts for having sent letter dated 22.12.2008 to O.P.No.2 and 3.
Ex C5 – 6.11.2009: Copy of the letter issued to Opposite Party No.2.
Ex C6 – 10.4.2010: Office copy of the legal notice issued to Opposite Parties.
Ex C7 – 17.4.2010: Postal Acknowledgement for having received the notice by the Opposite Parties.
Ex C8 – 17.4.2010: Postal Acknowledgement for having received the notice by the Opposite Parties.
Ex C9 – 28.4.2010: Reply issued by the Opposite Party No.2.
Ex C10 – 23.4.2010: Copy of the letter issued by Opposite Party No.1.
Ex C11 – 17.4.2010: Postal Acknowledgement for having received the notice by the Opposite Parties.
Court Documents:
Doc No.1 to 3: Postal Acknowledgements.
Witnesses examined on behalf of the Opposite Parties:
-NIL-
Documents produced on behalf of the Opposite Parties:
-NIL-
Dated:25.10.2010 PRESIDENT
