DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.
Complaint No. CC/14/328 of 02.12.2014.
Decided on: 24.02.2015.
Harbhajan Singh S/o. Late S. Ajit Singh, H. No.344, Gali No.3, Guru Nanak Nagar, Near Gurbax Colony, Patiala
….….Complainant.
Versus
- The Bindra Stores (Crockery Crystal Showroom), Adalat Bazar, Patiala.
- The M/S. Bajaj Electricals Limited, 45/47, Veer Nariman Road, Mumbai-400001.
….…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act.
QUORUM
Sh. D.R. Arora, President.
Smt. Neelam Gutpa, Member.
Smt. Sonia Bansal, Member.
Present: Complainant Sh. Harbhajan Singh in person.
Sh. Maninder Singh Bindra, Proprietor of opposite party no.1 with Sh. Tarunvir Singh Khehar, Advocate.
ORDER
D.R. ARORA:
1. It is the case of the complainant that he had purchased one induction cookware set consisting of one non-stick fry pan, one karahi and one tawa, model majesty manufactured by Bajaj Electricals i.e. O.P no.2 from O.P no.1 vide invoice No.S14/2866 dated 13.09.2014 for Rs.2460/- less discount of Rs.1010/-.
2. Within a period of 2 months from the purchase of the fry pan, the black coating of the same turned white. On this, the complainant approached O.P no.1 for the replacement of the fry pan as warrantee/guarantee for a period of one year was provided but the O.P flatly refused to replace the fry pan. The complainant requested the O.P various times for the replacement of the fry pan but he misbehaved with the complainant. The failure on the part of the O.P to replace the fry pan is said to be a deficiency in service, which resulted into harassment and mental agony experienced by the complainant. Accordingly, the complainant has brought this complaint against the O.Ps under Section 12 of the Consumer Protection Act, 1986 (for short the Act) for a direction to the O.Ps to replace the cookware set/fry pan; to pay him Rs.5,000/- by way of compensation on account of the harassment suffered by him on account of the deficiency in service as also unfair trade practice on the part of the O.Ps and further to award him cost of the complaint.
3. The cognizance of the complaint was taken against O.P no.1 only, who on appearance filed the written version. It is the plea taken up by the O.P that the complainant had approached the Forum without first having approached O.P no.2 namely M/S. Bajaj Electricals, the manufacturer of the product, and thus, he is trying to misuse of the process of law and to arm twist the O.Ps.
4. It is further the case of the O.P that the complainant was well aware of the fact that Teflon coating of the fry pan had to be maintained carefully while making a use of the same and while washing the same. The complainant has tried to make a rough use of the utensils.
5. It is further the plea taken up by the O.P that the conditions of the warrantee states that the Bajaj Cookware warranteed against manufacturing defects only. The warranty does not apply to:
i. Surface coating, body aesthetics, plastic parts like handles etc.
ii. Normal wear and tear of parts.
iii. Damages resulting from accidents, mishandling or negligence on the part of the customer.
iv. Misuse while cooking like overheating, dry heating etc.
v. Misuse in maintenance of the cookware such as use of metal scrubber etc.
vi. Warrantee not valid for any commercial usage.
6. It is also the plea taken up by the O.Ps that subject to the other conditions, cookware will be repaired at the discretion of the manufacturer, free of costs provided that the cookware is returned at the cost of the consumer to the branch office or authorized customer care centre along with stamped and signed cash memo and warrantee card and that the cookware is not tampered with by anyone and the same is used and maintained properly in accordance with the below noted instructions:
- Before the first use, the cookware is conditioned by applying a thin coat of cooking oil.
- Cooking is done over low to medium heat for best cooking results, as high heat can cause surface discoloration after some time.
- Sharp objects like knives/forks and metal spoons with sharp corners/edges are not used on the cookware.
- Cookware is cooled before washing to reduce warping due to rapid temperature changes.
- Cookware is cleaned only with sponge and mild detergent.
7. It is also the plea taken up by the O.P that there is no warrantee, to have been provided either by O.P no.2 or the contesting O.P and that limited warrantee has been provided by O.P no.2. O.P no.1 is not duty bound to replace the product as no guarantee was provided in respect of fry-pan and there was only limited warrantee given by O.P no.2. It is also averred by the O.P that the complainant is presumed to have used the fry pan roughly and for that reason the black layer stands removed within a short period. The remedy, if any, available to the complainant is against O.P no.2 and not against the contesting O.P. The O.P has described the complaint, to have been brought by the complainant, false, frivolous and vexatious and it is prayed that the same be dismissed with exemplary costs.
8. In support of his complaint, the complainant produced in evidence Ex. CA, his sworn affidavit along with documents Ex. C1 to Ex. C3 and the complainant closed his evidence. On the other hand, on behalf of the O.P, Sh. Maninder Singh Bindra, Proprietor of O.P No.1 tendered in evidence Ex. OPA, his sworn affidavit along with the document Ex. OP1 and closed the evidence.
9. The parties failed to file written arguments. We have heard the complainant in person, learned counsel for O.P no.1 and gone through evidence on record.
10. There is no dispute with regard to the complainant having purchased non-stick fry pan in question from O.P no.1. It is the plea taken up by the complainant that he was provided with one year guarantee/warrantee. In this regard, he has placed on file Ex. C2 one year guarantee card and Ex. C3 Non-stick Cookware Use & Care Manual in respect of Bajaj Electricals Limited. It is the plea taken up by the O.P that the complainant has not brought on record the warrantee card provided along with the goods/utensils of O.P no.2 namely Bajaj Electricals Limited. Similar warrantee card with similar non-stick fry pan of O.P no.2 is annexed as Annexure-R1 and the perusal of the same would go to show that O.P no.2 shall only provide a warrantee upon their sole discretion and therefore, the complainant was well aware of the fact that the warrantee, if any, was on the part of O.P no.2 and the complainant has unnecessarily dragged O.P no.1 into the litigation.
11. The said plea taken up by the contesting O.P appears to be not tenable because it is very much provided in one year guarantee card Ex. C2:
“2. In the event of replacement during the guarantee period, this guarantee card will be required along with the original tax Invoice/Cash Memo to process the claim. The Company will not entertain a claim with incomplete guarantee details.
3. This guarantee is confined to the first purchaser of the product only & is not transferable.
4. Repair or replacement will be carried out through the Company’s Authorized Service Centres or it’s Authorized Dealers.”
Therefore, it would appear that it is not only the liability of the company i.e. the manufacturer of the product but also of the authorized dealer to provide the repair or replacement of the product.
12. It is nowhere the plea taken up by the O.P that it is not the authorized dealer of O.P no.2 and rather from the retail invoice Ex. C1 issued by O.P. no.1, it would appear that it deals in crockery, crystal & more “Retail & Wholesale”. O.P no.1 dealing in the wholesale of the product of O.P no.2 can be assumed to be a dealer, who alone can provide the goods in bulk. Sh. Maninder Singh Bindra, Proprietor of the O.P failed to state in his sworn affidavit Ex. OPA that the O.P is not a dealer of O.P no.2. Rather in para no.4 of the affidavit Ex. OPA it is deposed to by the deponent that O.P no.1 is a trader and is supplying the goods manufactured by O.P no.2, which leaves no manner of doubt to say that O.P no.1 is the dealer of O.P no.2. Therefore, we do not find any substance in the submissions made by the learned counsel for the O.P that the O.P is only a retailer and not a dealer of manufacturer. In that eventuality, the O.P was supposed to take up a specific plea in written version and then to depose in that regard in his sworn affidavit Ex. OPA that O.P no.1 is not a dealer of O.P no.2, in the absence of which we find no reason to say that O.P no.1 is not a dealer of O.P no.2.
13. Here we deem it expedient to take up the application moved by the contesting O.P on 28.01.2015 so as to dismiss the complaint against the O.P on the ground that the warrantee as alleged is to be provided by O.P no.2 and O.P no.1 has no role to play in the same. O.P no.1 cannot be made to defend on behalf of O.P no.2. It is also alleged in the application that the complainant had not contacted the customer care division of O.P no.2 to seek the warrantee of the product purchased by him. The said application has got to be dismissed solely on the ground that as per the discussion made above, it is observed that the O.P no.1 is the dealer of O.P no.2 and in view of the conditions no.2 to 4 as provided in the guarantee card Ex. C2, an authorized dealer is also liable for repair and replacement of the product during the guarantee period.
14. Now coming to the merits of the complaint, it is the plea taken up by the complainant that the non-stick fry pan purchased by him from O.P no.1 had turned white qua its black coating within a period of 2 months. The product was purchased by the complainant on 13.09.2014 as would appear from Ex. C1, the copy of retail invoice. He approached this Forum through the present complaint on 02.12.2014 i.e. within a period of 2 months and 19 days.
15. Here it is important to note that the O.P has taken up the plea in preliminary objection no.12 of the written version that the warrantee does not apply to the product under certain conditions which have already been noted above by us. The said conditions are found contained in the warrantee card Ex. OP1 as also in the guarantee card Ex. C2. In Ex. C2 it is provided that this guarantee is not applicable in any of the following cases and conditions no.9A to 9E are found similar to the warrantee conditions as provided in Ex. OP1.
16. It is categorically provided under condition no.9A that the guarantee does not apply to: (a) Surface coating, body aesthetics, plastic parts, neon lamps, bakelite parts, rubber/nylon parts, cord wire, push buttons & bulb and wearable parts viz. shaft, bush etc. and (b) Normal wear and tear of parts. Similarly in the warrantee card Ex. OP1 under the conditions of warrantee, it is provided: “Bajaj Cookware are warranted against manufacturing defects only. All Bajaj Cookware’s are designed for domestic usage only. The warrantee does not apply to: (a) Surface coating, body aesthetics, plastic parts like handles etc., (b) Normal wear and tear of parts, (c) Damages resulting from accidents, mishandling or negligence on the part of the customer, (d) Misuse while cooking like overheating, dry heating etc., (e) Misuse in maintenance of the cookware such as use of metal scrubber etc. and (f) Warrantee not valid for any commercial usage.”
17. From a perusal of the guarantee card Ex. C2 and the warrantee card Ex. OP1, it would appear that the guarantee/warrantee does not apply to surface coating, body aesthetics, plastic parts like handles etc. In our case, the complainant has made a complaint about the black coating of the surface in the fry pan having gone off within a short span of 2 months from the purchase of the same. There may be a variety of reasons for the said black coating in the surface of the fry pan having gone off including misuse while cooking like overheating, dry heating etc; misuse in the maintenance of the cookware such as use of metal scrubber etc. When the manufacturer does not provide any guarantee/warrantee in respect of surface coating, body aesthetics, plastic parts, there is no question of the complainant asking for the repair or replacement of the same. Moreover on a perusal of the photograph of the fry pan it would go to show that the metal scrubber has been used very harshly and it has left its marks on the surface of the fry pan, going to show that the black coating has been removed because of the negligence in maintaining the product.
18. Sh. Tarunvir Singh Khehar, the learned counsel for the O.P submitted that it is beyond all doubt that, by the general rules of law there is no warrantee of quality arising from the bare contract of sale of goods, and that where there has been no fraud, a buyer who has not obtained an express warranty, takes all risk of defect in the goods, unless there are circumstances beyond the mere fact of sale from which a warranty may be implied. No one ought in ignorance to buy that which is the right of another. The buyer according to the maxim (Caveat emptor) has to be cautious, as the risk is his and not that of the seller. In this regard, he placed reliance upon the citation Commissioner of Customers (Preventive) Versus Aafloat Textiles India Private Limited and others (2209) 11 Supreme Court Case 18 of Hon’ble Supreme Court of India, in which it was further observed that: “Caveat emptor means,” let the purchaser beware”. It is one of the settled maxims, applying to a purchaser who is bound by actual as well as constructive knowledge of any defect in the thing purchased, which is obvious, or which might have been known by proper diligence. Caveat emptor does not mean either in law or in Latin that the buyer must take chances. It means that the buyer must take care. Caveat emptor is the ordinary rule in contract. A vendor is under no duty to communicate the existence even of latent defects in his wares unless by act or implication he represents such defects not to exist Caveat emptor qui ignorare non debuit quod jus alienum emit is a maxim meaning “let a purchaser beware: who ought not to be ignorant that he is purchasing the rights of another”.
19. In our case, in the guarantee card Ex. C2, it has clearly been provided that the guarantee does not apply to surface coating, body aesthetics and plastic parts and therefore, the complainant could not ask for the repair or replacement of the same by the O.P. That which is not provided under the guarantee/warrantee cannot be asked for by a consumer and rather under the caveat emptor, the complainant was supposed to know the latent defects in the wares. Consequently, we do not find any substance in the complaint and the same is hereby dismissed.
Pronounced.
Dated: 24.02.2015.
Sonia Bansal Neelam Gupta D.R. Arora
Member Member President
