Delhi

North East

CC/358/2016

PAWAN KUMAR TYAGI - Complainant(s)

Versus

DIGI SMILE - Opp.Party(s)

30 Nov 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 358/16

                                   

In the matter of:

 

	Pawan Kumar Tyagi S/o Sh. Dharamvir Singh Tyagi R/o H.No. 110, Raj Babarpur Shahdara, Delhi-110032.	Complainant
	Versus
1.       2.	Digi Smile Shop No.11, Main Road, Babarpur Shahdara, Delhi-110032.   M/s Arise India Ltd Registered office at: A-38, Jain Chowk, Mangla Puri Palam, New Delhi-110045.	Opposite Parties

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION      :

26.12.2016 30.11.2018 30.11.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. In brief, the facts of the present case as narrated by the complainant are that the complainant had purchased an electric geyser of model ‘Champion’ manufactured by OP2 from OP1, its authorized vender on 24.01.2015 for a sum of Rs. 3800/- vide bill no. 630. As per the warranty / guarantee of OP2 the said geyser carried two years guarantee thereon. However, the subject geyser started giving problems after purchase and in November 2016 went out of order while it was still under warranty. The complainant lodged a complaint with the customer care of OP2 which assured to repair the geyser but did not do so and the complainant again registered complaints on 30.11.2016 and 17.12.2016 but since his complaint were not addressed by OP2, he was forced to get the subject geyser repaired from outside agency incurring an expenditure of Rs. 1500/- thereon and had to spend Rs. 700/- each on two gas cylinders for providing hot water for bathing for his family in peak of winters. Therefore, alleging breach of trust, breach of contract, negligence, harassment and deficiency of service and unfair trade practice on the part of the OPs, the complainant was constrained to file the present complaint before this Forum praying for issuance of directions against the OPs to refund the cost of geyser i.e. Rs. 3800/- alongwith interest thereon as per RBI guidelines with compensation of Rs. 90,000/- for physical and mental harassment and Rs. 5,000/- towards litigation expenses.

Complainant has attached copy of invoice, copy of guarantee card and copy of itemized bill for his mobile no. 9911199572 for calls made to customer care of OP2 (not highlighted) and CD of telephonic conversation with costumer care of OP2 unaccompanied with certificate under Section 64 B Evidence Act.

2. Notices were issued to OPs on 11.01.2017. None appeared on behalf of OP2 despite service effected on 21.01.2017 and was therefore against ex-parte vide order dated 14.03.2017 on which date  OP1 filed its written statement in which it took the preliminary objection that the OP1 never provided any warranty or guarantee for the subject geyser as it was not its service provider and therefore the present complaint was not maintainable against OP1 since it was neither manufacturer nor supplier or electric item but is a petty shopkeeper and if the complainant had any grievance or complaint regarding defect in the geyser, he ought to have contacted OP2 which had given guarantee for the said product. OP1 further took the defence that the complainant and himself lodged complaint on the customer care of OP2 and OP1 was never made aware of any alleged defect in the geyser prior to the filing of the present complaint. OP1 further denied the allegation of the complainant of it being authorized vendor of OP2 and stated that  it deals in selling electrical goods of various companies of which OP2 was one of them while admitting the factum of sale of the subject geyser in question manufactured by OP2 to the complainant on 24.01.2015. Lastly OP1 denied the averment of the complainant of having spent Rs. 1500/- towards repairs of the geyser in absence of any supporting bill as also purchase of two gas cylinders and prayed for dismissal of the complaint qua itself on grounds of no cause of action and no relief sought.
3. Rejoinder was filed by the complainant in rebuttal to the written statement filed by OP1 controverting the defence taken by OP1 in which complainant submitted that the dealer who is selling the product is equally responsible for providing after sales service and in that capacity OP1 since had sold a defective geyser was responsible for all consequential after effects. Complainant further alleged that he had visited the shop of OP1 requesting for rectification of defects in geyser but they were unheeded to by OP1 which neither approached OP2 nor took any correct steps and therefore having no other alternative, the complainant took the recourse of the present complaint for redressal of his grievance.
4. Despite repeated opportunities granted to the complainant to file his evidence from 15.05.2017 to 25.01.2018, the complainant failed to file the same and therefore his right to file evidence vide order dated 27.02.2018.
5. Evidence by way of affidavit was filed by OP1 reiterating the defence taken in written statement.
6. Written arguments were filed by both the parties in support of their respective grievance / defence.
7. We have heard the rival contentions of both the parties and have given our anxious consideration to the documentary evidence placed on record before us.

The factum of purchase of the subject geyser in question and it being covered under warranty while it went out of order is not in dispute by both the parties. OP2 did not appear to rebut the allegation of manufacturing defect raised in the geyser in question by the complainant. As regards fastening of liability of the seller in such cases, the Hon’ble National Commission in the judgment of Prabhat Kumar Sinha Vs Nitish Kumar III (2016) CPJ 239 (NC) had held that the petitioner being the seller of a defective computer under warranty, in our considered view, was under obligation either to rectify the defects or to replace the computer or refund the consideration amount received. So far as the liability of the manufacturing company is concerned, it is the issue between the manufacturing company and the dealer for which the respondent cannot be made to suffer. The Hon’ble National Commission in Kirloskar Oil Engineers Ltd Vs M. Lokesh 2003 (1) CPR 192 (NC) upheld the concurrent findings of Hon’ble State Commission and District Forum holding manufacturer and dealer jointly and severally liable for deficiency of service in failure to rectify the defects in the generators manufactured by OP. The Hon’ble National Commission in the judgment of JNP Agro Systems Pvt Ltd Vs K.K.Jose 2001 (3) CPR 53 (NC) held that complainant could not be made to suffer for problems between dealer and manufacturer. Therefore in light of the settled proposition of law, this contention/ arguments/ defence of OP1 is unsustainable in law and the liability towards the complainant of dealer and manufacturer is joint and several.

OP1 has nowhere specifically denied the defects alleged by the complainant in the geyser in question and the defence was limited to wriggling out of its liability. After due appreciation of the facts of the case we are of the considered view that both the OPs are guilty of deficiency of service in having sold a defective geyser and failed to provide after sale service or attended to repair calls of the complainant. The Hon’ble National Commission in the judgment of Rellech Bio Chemical System Vs Amulya Kumar Behara (Dr.) (2007) IV CPJ 388 (NC) had in a similar case upheld the order of the lower Fora holding the OPs guilty of deficiency of service in having failed to render service within warranty period. The Hon’ble National Commission in the judgment of R.Kesava Kumar Vs Sonovision and Ors I (2016) CPJ 675 (NC) had upheld the order passed by the District Forum, not interfered by Hon’ble State Commission Lucknow in case of manufacturing defects in case of fridge in which the District Forum had directed OP to refund the cost of fridge alongwith compensation as reasonable and justified.

From the admission of the complainant, he had used the subject geyser for one year ten months within warranty period from January 2015 to November 2016. The Hon’ble National Commission in the judgment of Godrej Photo-ME Ltd Vs Jaya P. Appachu in FA No. 723/2003 decided on 24.05.2004 held that the undisputed fact that the machine was with the complainant in working order till few weeks before the end of warranty period and that the complainant had used the machine for almost six months, he could not demand a full refund. The Hon’ble National Commission, therefore held that the order passed by State Commission directing full refund was not right and reduced the quantum to be paid by OP to less than half. Therefore relying on the observation and view of the Hon’ble National Commission in such a case where the complainant using defective product for a while cannot claim full refund, we are not inclined to grant full refund of the cost of geyser and direct OP1 and OP2 jointly and severally to refund sum ofRs. 2,000/- to the complainant towards the same alongwith interest @ 9% p.a. from the date of filing of the complaint till realization. We further direct the OPs jointly and severally to pay a sum ofRs. 5,000/- towards compensation for harassment and mental agony inclusive of litigation expenses to the complainant. Let the order be complied within 30 days from the date of receipt of copy of this order.

8. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.  File be consigned to record room.
10.  Announced on 30.11.2018 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member