Sri Partha Kumar Basu, Hon’ble Member:

This complaint petition is filed u/s 35 of the Consumer Protection Act, 2019 by one Sri Rajkumar Naskar S/o Late Brajendra Naskar of Kolkata - 700144 against the CEO of OP 1 Company, OP 2 office bearer of OP1 company and the OP3 seller alleging deficiency in services and unfair trade practices by the OPs due to non-repairing and non-replacement of a Bajaj make 48 inch ceiling fan praying for a direction upon the OPs to replace the said product being under warranty. Alongwith a compensation of Rs.1,00,000/- and cost of Rs 15,000/-.

The averment made in the complaint is that the Complainant purchased one Bajaj make 48 inch ceiling fan on 10.10.2020 against a total consideration price of Rs. 2,000/- by cash from OP 3 seller of the product. The fan carried a 2-year warranty. The said fan started malfunctioning for which the Complainant contacted the service centre of the OP 1 company, the mechanic of whom visited but the defect could not be rectified. Being aggrieved, the Complainant contacted OP3 seller who lodged the complaint by registering a call Id no. Kol1207210025083179-1 at customer care of the company. Again complaint’s letter was sent to OP1 on 22/07/2021. But there was no remedial action and hence the instant petition.

The Complainant has filed evidence and annexed copy of cash memo, warranty card and complaint dated 22.07.2021 duly marked as exhibits.

The OP1/ OP2 filed WV denying all the charges and praying for dismissal of the case. They contended inter-alia that the said fan was exposed to third party who are not their authorised representative having fitted ‘capacitor’ of local make which ultimately damaged the ‘stator’ of the ceiling fan. Hence the warranty became void. The OP1/2 intimated the same to the complainant and agreed to repair against payment which the complainant not agreed to.

The dispute was examined on its merit and arguments as advanced by the Ld. lawyers of the Complainant and OP1/ OP 2read with exhibited documents on record. The case has been running ex-parte against OP3.

Main facts for determination:-

1. Whether the Complainant is a Consumer?

2. Whether there was any deficiency of services and unfair trade practices on the part of the OPs?

3. Whether the Complainant is entitled to get relief as prayed for.

Decision with reasons:-

The decisions with reasoning are as follows:-

Point no. (1)

On perusal of all records and documents and the annexure as filed by the complainant it is evident that the Complainant had purchased a48“ ceiling fan of make : Bajaj against cash memo dated 10.10.2020 for Rs. 2,000/- from OP3 seller with a warranty of 2 year by the manufacturer which are the admitted facts as per the written version of the OP1/ OP2.

U/s 2(7) of the C.P. Act 2019 a"consumer means any person who(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid…….”

As such, the Complainant is a Consumer under the provisions of the Consumer Protection Act, 2016. The Point no. 1 is answered accordingly.

Point no. (2) and (3)

Both the points are taken up together for the sake of brevity and for avoidance of repetition of facts.

The basic question that the OP1 company / OP2 have raised centres around the issue that whether any product liability lies with the OP1/OP2 brand company as the OP3 seller is not their authorised dealer or representative. In this respect let us relook towards the relevant areas of the Consumer Protection Act 2019.

U/s 2 (vii) of the Act :

“A claim for product liability action lies against the product manufacturer, product seller or product service provider”

Again u/s  (34) of the Act :

"product liability" means the responsibility of a product manufacturer or product seller, of any product or service, to compensate for any harm caused to a consumer by such defective product manufactured or sold or by deficiency in services relating thereto;

Again u/s (36) of the Act :

"product manufacturer" means a person who—            

(i) makes any product or parts thereof; or           

(ii) assembles parts thereof made by others; or 

(iii) puts or causes to be put his own mark on any products made by any other person; or          

(iv) makes a product and sells, distributes, leases, installs, prepares, packages, labels, markets, repairs, maintains such product or is otherwise involved in placing such product for commercial purpose; or

(v) designs, produces, fabricates, constructs or re-manufactures any product before its sale; or

(vi) being a product seller of a product, is also a manufacturer of such product;

Again u/s (37) of the Act :

"product seller", in relation to a product, means a person who,

in the course of business, imports, sells, distributes, leases, installs, prepares, packages, labels, markets, repairs, maintains, or otherwise is involved in placing such product for commercial purpose and includes—

(i) a manufacturer who is also a product seller

(38) "product service provider", in relation to a product, means a person who provides any service in respect of such product;

Gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof: Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence; (h) makes to the public a representation in a form that purports to be— (A) a warranty or guarantee of a product or of any goods or services; or (B) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result

Now under Ch Vi of the CP Act 2019 the Product Liability whic states as follows at various sections :-

83. A product liability action may be brought by a complainant against a product manufacturer or a product service provider or a product seller, as the case may be, for any harm caused to him on account of a defective product.

84. (1) A product manufacturer shall be liable in a product liability action, if—

(a) the product contains a manufacturing defect; or

(b) the product is defective in design; or

(c) there is a deviation from manufacturing specifications; or

(d) the product does not conform to the express warranty; or

(e) the product fails to contain adequate instructions of correct usage to prevent any harm or any warning regarding improper or incorrect usage.

(2) A product manufacturer shall be liable in a product liability action even if he proves that he was not negligent or fraudulent in making the express warranty of a product.

85. A product service provider shall be liable in a product liability action, if—

(a) the service provided by him was faulty or imperfect or deficient or inadequate in quality, nature or manner of performance which is required to be provided by or under any law for the time being in force, or pursuant to any contract or otherwise; or

(b) there was an act of omission or commission or negligence or conscious withholding any information which caused harm; or

(c) the service provider did not issue adequate instructions or warnings to prevent any harm; or

(d) the service did not conform to express warranty or the terms and conditions of the contract.

Upon careful perusal of the records, documents and annexure on record it appears that the dispute iscentring aroundthe refusal by OP1 / OP2 company to repair or replace the product although under warranty. The OP1 also resisted the motion in their W/V about late reporting of the complainant. However the same is found well within limitation period.The OPs have not exhibited any document. The main bone of contention is as to how it can be ascertained that whether there was a deficiency in service or not. In the averments made in the complaint, the complainant got inconvenienced due to alleged malfunctioning of the product. The OP 1/ OP2 admitted the requirement of repair of the samebut adverted on the ground of guarantee becoming void upon third party infiltration. But to substantiate the detection of such counter allegation, no cogent proof has been exhibited by OP1/ OP2 like Job sheet or Job card or field report from their authorised mechanic in support of their claims. The only support the OP1/ OP2 have garnered is their evidence butmere evidence does not carry much evidentiary valuealone since resisted also by other side on affidavit. Be it may be mentioned that a Service Job card is not only an essential ingredient but also expected from a structured organisation / reputed brand which carries the details of the job no, date, details of previous jobs, nature of defect, person attended by/ technician or the requirement of the spare parts etcetera to diagnose. From the WV of the OP 1/ OP 2, it could not be fully relied upon about the claims of the OPs in absence of such vital document. Hence the claim of the OP1 / OP 2 could not be substantiated. Admittedly the warranty is the extended service arm of the manufacturing company as per theirwarranty card on exhibit and hence the responsibilities of the OP 1/ OP 2 cannot be relinquished. Since the said product is under warranty, it is the bounden duty of the OPs to owe it and restore it’s normalcy. In the stated circumstances and relying upon the records, it is proved beyond doubt that the product has developed defects towards which the OP1/ OP2 could not render proper services to the complainant though it was under warranty period. Therefore we are in the opinion that the OP1/ OP2 are at deficiency of services and accordingly the point is answered in favour of the Complainant.

In the result the instant Consumer Complaint succeeds in part.

Hence, it is

                                                            ORDERED

That the complaint case is allowed on contest against OP 1 and OP 2 in part.

The OP 1 and OP2, jointly and / or severally are directed to repair or replace the said ceiling fan free of cost within 45 days from the date of this order with continuation of existing warranty period of 2 years.

OR

To refund the cost of the product to the tune of Rs.1695/- ( Rs One Thousand Six Hundred and Ninety Five ) only to the complainant.

The OP 1 and OP2, jointly and / or severally are also directed to pay a compensation of Rs. 1,000/- ( Rs One Thousand ) only at the ‘Consumer Welfare Fund’ at this commission within 45 days from the date of this order.

The pick-up and delivery of the repaired/replaced ceiling fan at complainant’s installation address to be arranged by the OP1/2 alongwith installation and demonstration.

The liabilities of the OPs are jointly and severally.

Let plain copy be given to the parties free of cost as per CPR.

Dictated and corrected by me.  

            Member