Delhi

StateCommission

A/11/58

EUREKA FORBES LTD. - Complainant(s)

Versus

D.K. MONGA - Opp.Party(s)

29 Jan 2018

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :29.01.2018

Date of Decision :31.01.2018

FIRST APPEAL NO.58/2011

IN THE MATTER OF:

 

M/s. Eureka Forbes Ltd.,

M-37, Greater Kailash-II,

New Delhi.                                                                                                   ……Appellant

                                                                        Versus

Shri D.K. Monga,

234/235, Pocket-L,

Sarita Vihar, New Delhi.                                                                …..Respondent

 

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                    Yes/No

2.      To be referred to the reporter or not?                                                                     Yes/No

Present:           Shri Pramod Saxena, counsel for the appellant.

                        None for the respondent.

 PER  : SHRI ANIL SRIVASTAVA, MEMBER

JUDGEMENT

          Assailing the orders dated 03.01.2011 passed by the Consumer  Disputes Redressal Forum-II, Delhi in complaint case no.080/06 in the matter of Shri D.K. Monga vs. M/s. Eureka Forbes Ltd., holding the respondent as deficient in rendering service to the complainant and directing the respondent to refund a sum of Rs.13,500/- the price of RD installed at the residence of the complainant as also compensation of Rs.5,000/- on account of mental pain, agony and harassment and also simultaneously  directing the complainant to return the defective R.O., M/s. Eureka Forbes, hereinafter referred to as appellant/ OP, has preferred an appeal before this Commission under Section 15 of the Consumer Protection Act 1986 (the Act) against Shri D.K. Monga, respondent / complainant, praying for setting aside the order assailed in this appeal.

 

          Facts of the case necessary for the disposal of the appeal are these.

 

          A Reviva Reverse Osmosis Water Purifier stated to be of the latest model and technology, costing Rs.13,500/- was installed at the residence of the complainant/ respondent on 25.07.2016 with a warranty period of one year. An amount of Rs.12,000/- was paid by the complainant and the remaining amount of Rs.1,500/- was adjusted on account of the return of the used Aqua Guard. The complainant has alleged that the machine so installed stopped its operation within one week  of  its installation, which operation could not be made functional despite the technician of the appellant/ respondent having visited his residence, causing hardship and inconvenience to him. On his (complainant’s) persistence, the appellant / respondent had sent another machine for installation at the residence of the complainant but since an objection was raised to the effect that the machine then sent was of an inferior quality and of a lesser cost, and insisted for the replacement by the machine of the same make and model, the technician left the machine at the residence for seeking instructions. Since no. one on behalf of the company visited, a complaint was filed for the redressal of the grievances.

 

          The Distt. Fora passed the order impugned herein. The appeal has been preferred on the ground that  the order passed are without appreciating facts. The Distt. Fora have not considered the fact that the complainant/ respondent has already been provided with another machine which is optimally functional. The Distt. Fora has not taken cognigence of the fact that the complaint has been dismissed for default but no orders have been passed for the return of the machine.

 

          The complainant / respondent  was noticed but since no reply was filed he (complainant/ respondent) was ordered to be proceeded exparte vide proceedings recorded by this Commission on 21.09.2012 and on 12.05.2016.

 

          The matter was listed for final hearing on 29.01.2018 when the counsel for the appellant appeared and advanced his arguments. The respondent made no appearance. We have perused the records of the case. We have given careful consideration to the subject matter.

 

          The ld. Counsel for the appellant has in the first instance drawn our attention to the orders passed by the Distt. Fora in the subject matter from time to time. The orders passed by the ld. Distt. Fora on 22.08.2007 dismissing the complaint for default are as under:-

 

“Present  none for the complainant. Shri Pramod counsel for the OP.

 

Complainant does not seem to be serious in pursing the case – was neither present on 17.04.2007, 15.05.2007 and even today is not present case is therefore dismissed in default.”

 

“The ld. Counsel for the OP submits that at present these machines are lying with the complainant and the complainant is not returning other this machines. Issue notice to the complainant for 28.09.2007.”

 

          On 28.09.2007 the ld. Distt. Fora passed the following order:-

 

“Case called out.  None on behalf of complainant. Present Shri Pramod Saxena, counsel for OP. As per the order sheet dated 22.08.2007, the complaint has already been dismissed in default and till date there is no application for restoration of the complaint. The counsel for OP states that orders on his application for returning of the extra two machines lying at the house of the complainant may kindly be passed. The complainant has already filed the reply of the aforesaid application.  Copy of the same is given to the counsel of OP. Now to come up for arguments on the aforesaid application on 09.01.2008.”

 

          Finally orders of the ld. Distt. Fora on the application of the appellant/ respondent  were passed on 17.01.2008, holding as under:-

 

“The OP has asked for production of the two extra machines lying with the complainant at his residence but they have failed to state for what purpose they are requiring the production thereof. The complainant has categorically admitted that the machines are lying with him being the case property/ subject matter of his complaint, therefore he can produce the same as and when directed. Since for the disposal of the complaint, the production of the machines lying with the complainant are not required at this stage, therefore, the application is found meritless. Hence the same is dismissed.”

 

          The orders dt. 17.02.2006 passed by the ld. Distt. Fora was  assailed before this Commission and this Commission  was pleased to set aside the orders passed by the ld. Distt. Fora directing as under:-

 

“Instant case was a fit case where the complaint should have been decided on merit. At the outset, we allow the appeal, set aside the impugned order and send back the matter to the  District Forum with the direction to the District Forum to decide the complaint in question on merits.”

 

          Accordingly the Distt. Fora heard and disposed of the matter on merit on 03.01.2011 which order has been assailed before us.

 

          Short point for consideration in the case is whether there is deficiency in rendering of service. The principles of deficiency in service has been discussed by the State Commission, Chhatisgarh in the matter of Lakhvinder  Singh Bhamra vs. Cholamandalam M/s. General Insurance Co. Ltd. & Anr. – II (2012) CPJ 109 (Chhat) holding as under:-

 

“It cannot be alleged without attributing fault, imperfection, short coming or inadequacy in quality, nature and manner of performance which is required to be performed by person in pursuance of contract or otherwise in relation to any service.”

 

          Reverting back  to the facts of the case in hand, and applying the afore mentioned principle, we are of the view, keeping in view the fact that the appellant have always made themselves available for  rectifying the defects in the machine or for replacing the machine, that there is no deficiency of service.

 

To us the complaint appears to be of frivolous nature  or meritless. We are reinforced in our opinion by the fact that the complainant, after the dismissal of the complaint for non prosecution, took no steps for its restoration. On the one hand no restoration was sought for and on the other the machines were not returned in the garb of pendency of the case before the Fora. The  action of the complainant  in retaining the machine in the garb of pendency of the case before the Consumer For a is beyond our compensation.

 

          Therefore we are of the considered view that the impugned order cannot sustain. Accordingly we set aside the order and allow the appeal in which case the complaint would  stand rejected.

 

          We accordingly direct that the complainant to take necessary steps to return he machine within two weeks from the date of receipt of the order. Moreover he has also undertaken to return the machine in his letter copy of which at page 28 of the case file.

 

          We order accordingly.

 

Let a copy of this order may be forwarded to the parties to the case free of cost as statutorily required. A copy of the order may be sent to the Distt. Fora for information.

 

          File be consigned to records.

 

 

(ANIL SRIVASTAVA)                                                            (O.P.GUPTA)

MEMBER                                                                     MEMBER (JUDICIAL)