Punjab

StateCommission

A/401/2015

Dr. Surinder Kumar - Complainant(s)

Versus

Bajaj Electrical Ltd. - Opp.Party(s)

Anil Shukla

15 Jun 2016

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.401 of 2015

 

                                                          Date of Institution: 15.04.2015    

                                                          Date of Decision:  15.06.2016

 

Dr. Surinder Kumar son of late Jagan Nath, 29, Shree Balaji Enclave, Zirkpur, District Mohali

 

                                                                          Appellant/Complainant   

                    Versus

 

1.      Bajaj Electrical Ltd., 45-47, Veer Nariman Road, Mumbai   through its Managing Director.

2.      Mannu Electricals, SCO 5, Balaji Enclave, Near Yes Bank, Patiala Road, Zirakpur, District Mohali through its                                            Proprietor/Partner.

3.      Sai Sales Corporation, SCO 14, Upstairs Sector 19-D,    Chandigarh.

 

                                                               Respondents/Opposite parties

                                                         

First Appeal against order dated 26.02.2015 passed by the District Consumer Disputes Redressal Forum,  Mohali

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Shri.J.S Gill, Member

            Shri. H.S Guram, Member

Present:-

          For the appellant                              : Sh. Anil Shukla, Advocate.        

          For the respondents no.1&3          : Sh. Yogesh Saini, Advocate.

          For the respondent no.2.        : Sh. Baldev Singh, in person.

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

         J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the complainant in the complaint) has directed this appeal against order dated 26.02.2015 of District Consumer Disputes Redressal Forum Mohali dismissing the complaint of the complainant. The respondents of this appeal are the opposite parties in the complaint and appellant of this appeal is the complainant in the complaint and they be referred as such hereinafter for the sake of convenience. 

2.      The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he purchased gas-geyser "Bajaj Majesty Duo (LPG)" from OP no.2 for total price of Rs.1791.56 including VAT on 10.09.2012. OP no.2 issued bill/invoice under serial number of the geyser so purchased as Z019 GMDL 051103442. The geyser carried two years guarantee as purchased by the complainant issued by OP no.2. The geyser started giving problems just after few days from its purchase. It was sent to OP no.3 after repairing the same and it was again installed, but the problem still persisted therein. The complainant made complaint to the Area Manager of OPs on 14.03.2014, as well. The mechanic was sent to rectify the problem, but it was not removed. The complainant has, thus, filed complaint directing the OPs to replace the geyser with new one in its place and to pay compensation of Rs.50,000/- for his mental harassment.

3.      OPs no.1 and 3 were set exparte before District Forum, vide order dated 20.06.2014.

4.      OP no.2 filed written reply and contested the complaint of the complainant vehemently. It was averred in written reply by OP no.2 that the geyser was purchased by the complainant, as alleged in the complaint. It was not disputed that after 15 days from the date of purchase of geyser, complainant made complaints to OP no.2. OP no.2 then sent complaint on free toll number to OP no.1.  OP no.3 attended the complaint of the complainant and visited the house of the complainant and corrected the problem in the above geyser. After some days, the complainant again made the complaint to OP no.2. OP no.2 again made the complaint on free toll number to OP no.1 and OP no.3 visited the house of the complainant to repair the geyser. Thereafter, the complainant never approached OP no.2 and complainant started interacting with OPs no.1 and 3 directly. OP no.2 is retailer only to sell the product. Every liability is of company, as manufacturer, as per guarantee card. It was denied that problem arose in the geyser on 14.03.2014, as pleaded by the complainant. OP no.2 prayed for dismissal of the complaint.

5.      The complainant tendered in evidence, his affidavit Ex.CW-1/1 along with copies of documents Ex.C-1 to Ex.C-2. As against it; OPs tendered in evidence affidavit of Sanjeev Mehta Chief Manager Bajaj Electrical Ltd Ex.OP-1/1, affidavit of Proprietor Baldev Singh Mannu Electrical Ex.OP-2/1 along with copies of documents Ex.OP-1 to Ex.OP-4. On conclusion of evidence and arguments, the District Forum Mohali dismissed the complaint of the complainant by virtue of order dated 26.02.2015. Dissatisfied with the order of the District Forum Mohali dated 26.02.2015, the complainant now present appellant, carried this appeal against the same.

6.      We have heard learned counsel for the parties and have examined the record of the case. Affidavit of the complainant is Ex.CW-1/1 on the record. The complainant stated the averments, as pleaded in the complaint, on solemn affirmation before the District Forum. Ex.C-1 is copy of retail invoice dated 10.09.2012, vide which the electric geyser was purchased for total amount of Rs.1791/- including vat. This document proved this fact that complainant purchased above geyser from OP no.2. Ex.C-2 is guarantee card issued by OPs no.1 and 3 in favour of the complainant.

7.      To refute this evidence, OPs tendered in evidence affidavit of Sh. Sanjeev Mehta Chief Manager Bajaj Electrical Ltd Ex.OP-1/1. This witness has stated in his affidavit before District Forum that brother-in-law of the complainant is an Advocate, who influenced the complainant to file such frivolous complaint and the complainant has threatened the OPs, as well. All the faults were duly rectified in the above geyser. OP no.3 has put a seal on the gadget and the possibility of tinkering with the gadget by any person is not possible. The replacement of geyser is not possible because there was no manufacturing defect therein. Baldev Singh proprietor of OP no.2 swore his affidavit Ex.OP-2/1 on the record. He stated in his affidavit that complainant made complaint regarding same problem in the geyser to him and he sent the complaint on toll free number to OP no.1. OP no.3 attended the complaint of the complainant by visiting his house and corrected the problem in the geyser. This witness further deposed that after some days, the complainant again made the complaint to OP no.2 and OP no.2 again made the complaint on free toll number to OP no.1. OP no.3 again visited the house of the complainant and repaired the geyser. He further stated that guarantee card has been issued to the complainant by OPs no.1 and 3 and there is no liability or responsibility on the part of OP no.2. He further stated that he is not at fault in this case. The document Ex.OP-1 is signed by the complainant on 16.09.2014 recording note of his satisfaction regarding installation of geyser. Ex.OP-3 is letter dated 23.08.2014 sent to the complainant for deputing service engineer to check and rectify the problem in geyser at the residence of the complainant.  The complainant is alleged to have insulted and threatened them. Report of Hardev Singh in this regard is Ex.OP-4 that he visited the house of the complainant to check the geyser for repairing it, but customer was not ready for this purpose.

8.      From hearing respective submissions of counsel for the parties and appraisal of above-referred evidence on the record, we have reached the conclusion that, it is for the complainant to prove that there was manufacturing defect in the geyser. The evidence as stated above has been appraised by us. The mechanic of OPs no.1 and 3 checked the geyser on 16.09.2014 and submitted his report. The complainant was given one week time to find out the functioning of geyser, but he has not submitted the report regarding working of the geyser. OPs removed the geyser in question and took it to their service center. It was necessarily repaired and re-installed in the premises of the complainant on 08.10.2014 at 5.30 pm, this fact is proved by Ex.OP-2. The  complainant has sought replacement of the geyser in this case from the OPs. The complaints pointed out by complainant were attended to with intervention of OP no.2 by OP no.3 and defects were set right therein from time to time. There is no report of any expert proving any manufacturing defect in the geyser. The onus to prove the manufacturing defect in the geyser is on the complainant and complainant has failed to discharge this onus. The rebuttal evidence adduced on record by the OPs has established it that there was no manufacturing defect therein. Consequently, we hold that complainant has failed to establish manufacturing defect in the geyser in this case, the onus of which lay upon the complainant. The complainant purchased the geyser on 10.09.2012. The complainant has lodged the complaint with OP no.2 and OPs no.1 and 3 attended to the complaint by sending their mechanic. The guarantee card issued by OP no.1 for this geyser is Ex.C-2 on the record. The guarantee card does not comply with normal wear and tear of the geyser. It also does not apply to damage resulting from accidents, mishandling or negligence on the part of the customer and fluctuation in supply voltage and it also does not apply to damage resulting due to usage of power supply other than specified 220/230 Volts, AC, 50 Hz. The manufacturing defect in the geyser has not been proved on the record so as to seek replacement of the geyser. The mere fact that complaint was lodged with OPs on 2-3 times does not ipso facto prove manufacturing defect in the geyser, as held by National Commission in Sukhwinder Singh versus Classic Automobile and another, reported in 2013(1) CPJ (NC). We find that instant complaint was filed by the complainant before District Forum on 11.04.2014 and the above geyser was purchased by the complainant on 10.09.2012.

9.      In view of above circumstances of the case, the complainant is only entitled to a direction to OPs to once again check the geyser of the complainant and to make it fault-free, to the satisfaction of the complainant. The order of District Forum, in dismissing the complaint in toto, stands set aside protanto in this appeal by us. We accept the appeal of the appellant and set aside the order of District Forum Mohali dated 26.02.2015 and accept the appeal of the appellant to this extent that OPs shall remove the defects in the geyser and shall make it defect free to the satisfaction of the complainant.  We also award amount of Rs.2,000/- as costs of litigation to complainant now appellant.

10.    Arguments in this appeal were heard on 13.06.2016 and the order was reserved. Copies of the order be communicated to the parties as per rules.

11.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                                                                            

                                                                             (J.S GILL)

                                                                              MEMBER

 

                                                                             (H.S.GURAM)

                                                                               MEMBER

 

June  15, 2016                                                           

(ravi)