Delhi

North East

CC/172/2016

Surya kant Sharma - Complainant(s)

Versus

Arise India Ltd. - Opp.Party(s)

26 Nov 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 172/16

 

In the matter of:

 

	Surya Kant Sharma S/o Shri Harnath Sharma R/o D-2/126, Gali No.2 3rd Pusta, Sonia Vihar, Delhi-110094.	Complainant
	Versus
1.           2.	Arise India Ltd Corporate office: 309, 3rd floor, Narain Manzil, 23 Barakhamba Road, Cannaught Place, New Delhi-110001.   Jai Mata Paints, Hardware & Electricals Main 35ft. Road, 3rd Pusta, Sonia Vihar, Delhi-110094.	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

04.07.2016 22.11.2018 26.11.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The grievance of the complainant in the present complaint against the OPs is that he had purchased a water motor pump from OP2 dealer of OP1 manufacturing company on 25.02.2016 for a sum of Rs. 4500/-. However the said motor started giving problems just five days after purchase for which the complainant lodged a complaint with OP1 which rectified the problem in the said motor. However again on 01.07.2016, the said motor started giving problem of not pumping enough water for which the complainant lodged a complaint the next day with the customer care of OP1 vide complaint no. 25213 but no resolution was given for the said problem and complainant had to call up the Manager of OP1 on the mobile number and was assured that his motor would be repaired by 03.07.2016 or in the alternate would be given a replacement. But neither the motor was repaired nor any replacement was giving by the OP1 which is not even answering the calls of the complainant. The complainant has submitted that due to  non supply of water his entire family is facing lot of hardship and therefore vide the present complaint has prayed for issuance of directions against OP1 to pay Rs. 20,000/- as damages / compensation to the complainant and refund of Rs. 4500/- towards the cost of the defective motor.

Complainant has attached copy of invoice dated 25.02.2016 vide serial no. 752 book no. 13 for sum of Rs. 4500/- and copy of warranty card issued by OP1 bearing dealer stamp of OP2 with respect to the said motor.

2. Notice was issued to the OPs on 11.07.2016. OP1 failed to appear despite service effected on 31.05.2017 and was therefore proceeded against ex-parte vide order dated 07.11.2017 on which date OP2 filed its written statement in which it took the preliminary objection that the water pump purchase by the complainant from OP2 was manufactured and distributed by OP1 and the warranty card for the same was also issued by OP1 hence the entire liability regarding the manufacturing defect was on OP1 since OP2 was selling the said product as a trader and the complainant has also not leveled any allegation against OP2 or sent any legal notice to it and therefore OP2 is not liable to pay any single penny to the complainant due to no fault from it side. OP2 submitted that it a shopkeeper and retailer selling out product of different companies and had sold the water pump in question manufactured by OP1 to the complainant on 25.02.2015 for a sum of Rs. 4500/- and is not liable for any difficulty faced by the complainant at the behest of the complainant and prayed for dismissal of the complaint.
3. Rejoinder to the written statement of OP2 was filed in rebuttal by the complainant in which the complainant, while negating the defence taken by the OP2, submitted that he had purchased the subject water pump from OP2 which was sole distributor of OP1 and therefore had responsibility regarding manufacturing defect and warranty of the said product which caused difficulty to the complainant due to being damaged. The complainant further submitted that when the water pump was damaged, the complainant requested OP2 to repair the same but OP2 declined complainant’s request despite being its distributor and owing liability regarding its warranty and manufacturing defects. Therefore the complainant submitted that due to such misbehavior by both the OPs causing difficulty and mental disturbance to the complainant, both the OPs were liable to compensate the complainant to pay Rs. 20,000/- towards financial losses, mental torture and social shame and Rs. 4500/- as refund of price of water pump. 
4. Evidence by way of affidavit was filed by the complainant as well as OP2 in reiteration of their respective grievance/defence and the  same was reemphasized by both the parties in their respective written arguments.
5. We have heard the arguments and perused the documentary evidence placed on record by the complainant since the OP2 has not filed any documentary evidence either with its written statement or evidence and written arguments.

The factum of purchase of the water pump in question by the complainant from OP2 is an admitted fact. The dispute is the onus of liability arising out of manufacturing defect which as per the complainant is of both dealer and manufacturer and as per OP2 is that of a manufacturer alone.

The Hon’ble Supreme Court in the judgment of Jose Philip Mampilil Vs Premier Automobiles Ltd AIR 2004 SC 1529 had held that for the manufacturing defect, manufacturer and dealer are jointly and severally liable. The Hon’ble National Commission in the judgment of Ashoke Khan Vs Abdul Karim (2006) 1 CPR 173 (NC), relying upon the afore mentioned Mampilil judgment, held that though it is true that normally such liability with regard to manufacturing defect is to be borne by the manufacturer, but, that would not mean that the dealer is absolved from joint and several liability. The Hon’ble National Commission in the judgment of Mahantayya Vs MD Omprakash of Ms Mahalakshmi Tractor (2006) 1 CPR 263 (NC) held that it is for the manufacturer to secure the delivery by the dealer / agent to the consumer. The manufacturer deals with the consumer or purchaser through their dealers or agents. Therefore, for the wrongs committed by agent or the dealer, the consumer is entitled to have reimbursement from the manufacturer/ principal, and the dealer /agent and the liability of manufacturer and dealer is joint and several. In view of the settle law, this Forum is of the view that the liability towards the defective motor pump was to be borne by OP1 and OP2 jointly and severally.

In context of the allegation of non repair / non replacement of the defective water pump by the OPs which was within the warranty period, the inaction on the part of OPs in our view is deficiency of service and we are supported in our observation by the Hon’ble National Commission in its judgment of Rellech Bio Chemical System Vs Amulya Kumar Behara (Dr.) (2007) IV CPJ 388 (NC) in which in a similar case, the Hon’ble National Commission upheld the order of the lower Fora holding the OPs guilty of deficiency of service in having failed to render service within warranty period.

6. In the present case in view of the permanent deficiency in the functioning of subject water motor pump which could not last for more than five months from its purchase, requiring repeated repairs and still not working satisfactorily, we are of the considered opinion that the OPs are guilty of deficiency of service in having sold the defective water motor pump in capacity of manufacturer and dealer to the complainant and therefore jointly and severally liable for the same.
7. We therefore direct both the OPs jointly and severally to refund the cost of the water motor pump i.e. Rs. 4500/- to the complainant. We further direct both the OPs jointly and severally to pay a sum of Rs. 3,000/- as compensation for financial loss, mental torture and social shame suffered due to deficiency of service on the part of OPs. Let the order be complied within 30 days from the date of receipt of copy of this order.          
8. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9. File be consigned to record room.
10.  Announced on 26.11.2018 

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member