This petition has been filed assailing the orders passed by the District Commission and the State Commission dated 04.10.2023 and 02.05.2024 respectively, whereby the complaint of the respondent/ complainant has been allowed in respect of a defect and deficiency of a hearing aid equipment purchased by the respondent/ complainant on 27.01.2022 for Rs.60,000/- from the petitioner.

2.       We have heard Mr. Gill, learned counsel for the petitioner at length together with his written submissions as well as the judgements relied on by him where he contends that the complaint had proceeded without impleading the manufacturer, as the machine was alleged to be suffering from a manufacturing defect. He further submits that a manufacturing defect was not  proved by any evidence or any expert evidence as is desirable on such allegations, nor was the equipment sent for any test by a laboratory to ascertain the allegations of the defect as complained of by the petitioner. Consequently, the impugned orders suffer from this illegality and hence the revision petition deserves to be allowed and the complaint deserves to be dismissed. The written submissions filed by the petitioners are on record, where reliance has been placed on the following three orders of this Commission to substantiate the allegations:

(i) Mercedes Benz India Pvt. Ltd. Vs. Smt. Revathi Giri & Ors. in FA/766/2021 dated 11.10.2023.

(ii) M/s. Bharath Earth Movers Limited & Anr. Vs. Thiru R Sekar & Anr. in FA/157/2019 dated 12.04.2024.

(iii) Randhir Singh Vs. M/s. Maharaja Auto Wheels (P) Limited & Anr., in RP/3149-3150/2017 dated 31.05.2024.

3.       The respondent/ complainant has appeared in person online along with his daughter assisting him, as well as Mr. Rakesh Kumar, who was duly authorized to be present in court on his behalf. A letter of authorization has been presented by Mr. Rakesh Kumar, which is taken on record.

4.       The written submissions on behalf of the respondent/ complainant have also been filed on 29.07.2024 contending that he had to suffer on account of a defective implant and as a sequel to this, his ailment of hearing at this advanced age of 91 years has further appreciated, as a result whereof the complainant has lost almost 80% of his hearing faculty. It is further submitted that findings of facts have been recorded with regard to the deficiency and defect in the equipment supplied by the petitioner and therefore no case is made out on the basis of either any illegality or irregularity for interference in this revision.

5.       Having heard both the parties at length, we find that the first contention is about non-impleadment of the manufacturer. A perusal of the complaint, a copy whereof is on record, indicates that defects were pointed out to the petitioner by the complainant, and the trouble persisted continuously and after a few weeks, the same was repeated about 3 to 4 times with no positive result achieved.  In paragraph 5, the complainant alleges that an assurance was given by the petitioner for replacement but having failed to receive any response and having lost one ear piece no replacement or any service was rendered by the petitioner. It is therefore a serious deficiency and also a supply of a defective product.

6.       The District Commission after having noted all the facts and having assessed the evidence found that the warranty card displayed certain conditions, which the petitioner was obliged to comply with. The petitioner is the authorized dealer of the equipment. The complainant had also relied on a report dated 28.06.2023 of Ears Solutions, who is the authorized dealer of Sigma. The District Commission relied on Section 86 of the 2019 Act and allowed the complaint. The finding recorded in paragraph 5 and 6 is extracted herein under:

“5. It is an admitted fact that the complainant purchased hearing aid device from the OP vide bill Ex.C-1 by paying Rs.60,000/-. Ex.C-4 is the warranty card issued by the OP vide which it was undertaken by the OP to repair/replace all materials and manufacturing devices within the warranty period. It is the case of the complainant that after few days of purchase of the device, the device started giving trouble and the OP received the device from the complainant and returned it after repairs. However, the device again started giving trouble and the complainant had to visit OP 3-4 times for its repair. During the proceedings of the complaint on 09.09.2023, the complainant submitted report dated 28.06.2023 of Ear Solutions, 103-B, SCO No.1066-67, Sector 22-B, Chandigarh, who is authorized dealer of Sigma, which shows damage of 67(L)/80 (R). The OP has not submitted any counter to this report. The complainant has argued that he being a turbaned sikh, the OP should have provided him with a molded attachment but the OP did not do so. He has further stated that at the time of one of his visits to the OP, during examination one piece of hearing aid fell down which was not the fault of the complainant. However, during arguments the complainant handed over to the co unsel for the OP, the alternate hearing set which was provided by the OP to the complainant during repairs of the original hearing set. As regards the allegation of the OP that the complainant was advised to get the wax cleaned from the ears by an ENT specialist, the complainant has attached the report of Indus Hospital, Sector 60, Mohali to show that he has been regularly clearing wax from his ears. The OP being seller of the product has failed to exercise reasonable care to the complainant as per provisions of Section 86 of the Consumer Protection Act, 2019. As such, we are of the view that the complainant has been able to prove his case of deficiency in service on the part of the OP.

6. Consequently, keeping in view the entire facts and circumstances of this case, we partly allow the complaint and direct the OP to refund an amount of Rs.60,000/- to the complainant alongwith interest @ 9% per annum from the date of receipt i.e. 27.01.2022 within a period of 30 days, failing which this amount will carry interest @ 12% per annum till actual refund. The OP is further directed to pay amount of Rs.30,000/- as compensation for mental agony and harassment as well as litigation expenses.”

7.       Aggrieved an appeal was filed by the petitioner where the factual matrix was again assessed and it was asserted that the manufacturer has not been made a party hence the complaint could not have been allowed. The State Commission came to the conclusion that the petitioner is the service provider of the product and keeping in view the terms and conditions of warranty, it was concluded that a purchaser/ customer would seek redressal of his grievances against the person or entity who has sold the equipment to him. Paragraph 11 of the State Commission’s order is extracted herein under:

“11. The main ground of appeal raised by the appellant/OP is that the District Commission has failed to appreciate the fact that the FA No.75 of 2024 6 appellant is only a retailer and ‘Sivantos India Pvt. Ltd’, who is the manufacturer of the device in question, has not been impleaded as party by the respondent/complainant. Moreover, the respondent is alleging manufacturing defect in the his complaint without placing on record any expert report. To adjudicate the above said point, we have perused the pleadings as well as evidence placed on record by the parties. No doubt, the respondent/complainant has filed the consumer complaint before the District Commission against the appellant/OP without impleading the manufacturer as a party, but a perusal of the invoice, Ex.C-1, reveals that the appellant/OP has specifically mentioned at the bottom of the invoice that they would provide three years warranty with free service. The relevant part of the invoice is reproduced as under:-

“3 years of warranty and 3 years of free services at all HearClear Clinic Locations”

Meaning thereby, that the appellant/OP has itself agreed to give warranty of 3 years and also took responsibility for providing free services at its clinic also. Therefore, the appellant/OP, who alleged to be a retailer of the product only, also falls under the definition of ‘Service Provider’ of the product, in question. Moreover, the perusal of warranty card, Ex.C-4, also reveals that the appellant/OP has itself issued the warranty card under its stamp and signature and it has also undertake as under:-

“We undertake to repair/replaced all material and manufacturing defects within the warranty period”.

Accordingly, the appellant/OP is responsible for the repair/replacement of the device in the event of any manufacturing defect, being a service provider and the plea of the respondent/complainant cannot be left unattended merely because the manufacturer is not made a party to the complaint. Moreover, a common person would only redress his grievance to the person/entity, who has sold any equipment to him and once he has alleged that the equipment sold to him is not working properly, then it is the bounden duty of the seller to get the same repaired/rectified. Even otherwise, there is nothing on record to show that the appellant/OP had ever suggested the respondent/complainant to approach the manufacturer of the device, for redressal of his grievance, rather the appellant/OP itself collected the device from the respondent/complainant to get it repaired/replaced from the manufacturer. Accordingly, we are of the considered opinion that there is no need to implead the manufacturer of the device as party to the present case as the appellant/OP has bound itself by the terms and conditions of the warranty card.”

8.       On the issue of a manufacturing defect the State Commission recorded the following findings in paragraph 12:

“12. Another contention raised by the appellant/OP is that the respondent/complainant has alleged manufacturing defect in the device without any expert report. A perusal of invoice, Ex.C-1, shows that the respondent/complainant purchased the hearing aid device on 27.01.2022. Further from the perusal of Job sheet, Ex.OP-2 (colly) shows that appellant/OP got the device repaired from its manufacturer on 30.05.2022 and on 15.10.2022 the device was got replaced as the same was beyond its repair and again on 05.06.2023 some parts of the device were replaced. Accordingly, there is sufficient evidence on record to establish that the respondent/complainant has been agitating his grievance time and again with the appellant/OP to rectify the said defect in the hearing aid device purchased by him from it and the appellant/OP has failed to redress the same. Even the report dated 28.06.2023 of ‘Ear Solutions’, shows that the PTA level of right ear was 72/80 dB HL and left ear was 67/67 dB HL, which was increased after using the defective hearing aid device in question. Accordingly, we do not find any force in the contention raised by the appellant/OP and the same is hereby rejected.”

9.       We entirely agree with the aforesaid findings that are based on an appreciation of the evidence and therefore none of the contentions raised in the revision petition merit consideration.

10.     Apart from this the word ‘defect’ and ‘deficiency’ defined under the 2019 Act, reference be had to Section 2 (10) and Section 2 (11), which are extracted herein under:

“2 (10) "defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods or product and the expression "defective" shall be construed accordingly;

2 (11) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes—

 (i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and

(ii) deliberate withholding of relevant information by such person to the consumer;”

11.     Since, this is a dispute arising out of the new Act, the words ‘product liability’ as defined under Section 2(34) and ‘product seller’ defined under Section 2(37) are also attracted and extracted herein under:

“2 (34) "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;

2 (37) "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-- 9 (i) a manufacturer who is also a product seller; or (ii) a service provider, but does not include—

(a) a seller of immovable property, unless such person is engaged in the sale of constructed house or in the construction of homes or flats;

(b) a provider of professional services in any transaction in which, the sale or use of a product is only incidental thereto, but furnishing of opinion, skill or services being the essence of such transaction;

(c) a person who—

(I) acts only in a financial capacity with respect to the sale of the product;

(II) is not a manufacturer, wholesaler, distributor, retailer, direct seller or an electronic service provider;

(III) leases a product, without having a reasonable opportunity to inspect and discover defects in the product, under a lease arrangement in which the selection, possession, maintenance, and operation of the product are controlled by a person other than the lessor;”

12.     The words ‘product service provider’ under Section 2(38) is also extracted herein under:

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

13.     There is no dispute that this product was sold by the petitioner to the complainant. The ‘liability of a product seller’ is defined under Section 86, which is extracted herein under:

“86. Liability of product sellers.—A product seller who is not a product manufacturer shall be liable in a product liability action, if— (a) he has exercised substantial control over the designing, testing, manufacturing, packaging or labelling of a product that caused harm; or (b) he has altered or modified the product and such alteration or modification was the substantial factor in causing the harm; or (c) he has made an express warranty of a product independent of any express warranty made by a manufacturer and such product failed to conform to the express warranty made by the product seller which caused the harm; or (d) the product has been sold by him and the identity of product manufacturer of such product is not known, or if known, the service of notice or process or warrant cannot be effected on him or he is not subject to the law which is in force in India or the order, if any, passed or to be passed cannot be enforced against him; or (e) he failed to exercise reasonable care in assembling, inspecting or maintaining such product or he did not pass on the warnings or instructions of the product manufacturer regarding the dangers involved or proper usage of the product while selling such product and such failure was the proximate cause of the harm.”

14.     It is not the case of the petitioner that the product had either been misused, altered or modified, and therefore the liability cannot be excluded under the exceptions of Section 87 of the 2019 Act.

15.     The defect could not be cured and the findings recorded by the District Commission and the State Commission are on record supported by cogent and reliable evidence.

16.     The contention of the petitioner that expert evidence ought to have been called for providing the defect has been dealt with by the District Commission and the State Commission by refering to the evidence on record and also the fact that the defect continued to persist, we do not find any breach of any statutory provisions, so as to result in denial of any relief to the complainant. The argument therefore does not merit consideration on this ground also. The findings of fact are conclusive and the scope of the revision petition is limited as held by the Apex Court in the case of Rubi (Chandra) Dutta Vs. United India Insurance Company,  (2011) 11 SCC 269”, which is followed by the recent decisions of the Apex Court in the case of Sunil Kumar Maity v. SBI, 2022 SCC OnLine SC 77 and Rajiv Shukla vs. Gold Rush Sales and Services Ltd. and Ors., (2022) 9 SCC 31. Accordingly, we do not find any merit in the revision petition and it is rejected.

17.     It is clarified that the Registry shall release the amount of Rs.10,000/- deposited before this Commission for the travel expenses of the petitioner within 15 days from today. The decretal amount deposited shall be remitted to the appropriate Commission for steps to be taken regarding its disbursal.