BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.220 of 2015
Date of Instt. 25.05.2015
Date of Decision : 24.06.2016
Hasan Soni aged about 34 years son of Subhash Chander, R.o NH 45, Neela Mahal, Jalandhar.
..........Complainant
Versus
1.Hindware Kitchen Appliance, Unit No.301-302, Park Centra, Sector-30, National Highway-8, Gurgaon, Haryana-122001 through its Managing Director/Authorized Representative.
2.Royco Industries, WX 255, Basti Nau, Jalandhar through its Prop./Partner/Authorized Representative.
.........Opposite parties
Complaint Under Section 12 of the Consumer Protection Act.
Before: S. Bhupinder Singh (President)
Mrs. Jyotsna Thatai (Member)
Sh.Parminder Sharma (Member)
Present: Complainant in person.
Sh.KPS Gill Adv., counsel for OP No.1.
Opposite party No.2 in person.
Order
Bhupinder Singh (President)
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties (hereinafter called as OPs) on the averments that complainant purchased chimney manufactured by OP No.1, from OP No.2 for a sum of Rs.9100/- vide retail invoice dated 3.10.2014 with warranty of 60 months. The said chimney as per retail invoice as well as brochure of OP No.1 having air-flow of 820DB. Complainant submitted that the said appliance chimney became out of order. Its sucking capacity is low down and and it failed to throw the smoke out from the kitchen. Complainant brought the aforesaid defects to the notice of OP No.2 who directed the complainant to lodge complaint with OP No.1. Accordingly, complainant approached OP No.1 for the rectification of the defects in the chimney but no one came from OP No.1 to rectify the defect. The complainant was shocked to notice that the said chimney is not as per specifications described in the catalogue issued by the OP No.1. The catalogue/cover has mentioned “Hindware DB 820 air-flow” meaning thereby, the said chimney has 820 DB air-flow. Whereas actually the said chimney purchased by the complainant has only 520 units of air-flow. Its motor is also small with low capacity and non-standard as per description mentioned in the catalogue. The mechanic from OP No.1 came to rectify the defect who after checking the chimney informed the complainant that the chimney sold to the complainant would not work more due to low capacity of sucking smoke/air-flow. The complainant submitted that the OPs have sold sub-standard chimney to the complainant which is not as per specifications mentioned in the catalogue as well as retail invoice. OPs failed to rectify the defect in the said product (Chimney). They also failed to replace the same with new one as per specifications mentioned in the catalogue and in the retail invoice. On such averments, the complainant has prayed for directing the OPs to replace the chimney with new one as per standard specifications of DB 820 air-flow. He has also claimed compensation and litigation expenses.
2. Upon notice, opposite parties appeared through counsels and filed written replies. In its written reply, OP No.1 pleaded that complainant got registered the complaint regarding the chimney he has purchased from OP No.2, with OP No.1 on 5.11.2014 and after receiving the complaint, the technician of OP No.1 attended the complaint on 6.11.2014 and found that complainant had not even installed the product in question at his residence and the product was lying at his office without use. So the allegations of less suction of smoke by the said chimney, leveled by the complainant are without any base and are unreasonable because the complainant did not use the said product (chimney). So, complaint of complainant was closed down by OP No.1 being frivolous and vexatious. OP No.1 further alleged that complainant filed the present litigation in connivance with OP No.2 even the sale transaction has false/sham transaction. The business relationship between OP No.1 and OP No.2 have been discontinued since 15.7.2014 as OP No.2 has failed to clear its outstanding of Rs.5,49,209/- towards goods purchased from OP No.1. Another liability of Rs.5,28,750/- is also outstanding against OP No.2 for non-furnishing of C-Forms to OP No.1 within specified period despite repeated demands and request. OP No.1 told the OP No.2 to return dissatisfied/complained chimneys vide email dated 24.4.2014 but OP No.2 did not return the same rather kept on selling those chimneys. Even OP No.2 issued legal notice dated 21.7.2014 to OP No.1 with baseless allegations. OP No.1 submitted reply dated 20.8.2014. OP No.1 gave offer of settlement to OP No.2 vide letter dated 17.11.2014 but OP No.2 did not furnish any reply to the said letters to OP No.1. OP No.2 also filed complaint to Commissioner of Police, Jalandhar against OP No.1. The matter was investigated by Economic Offence Branch and they submitted report holding that the dispute between the parties is regarding payment of products and regarding the sale of non-standard products. The matter relates to civil dispute. As such, parties were advised to approach the court. So, present complaint has been filed by the complainant in connivance with OP No.2 just to harass the OP No.1.
3. In its written reply, OP No.2 pleaded that OP No.2 sold the product manufactured by OP No.1 as per specifications of company. OP No.2 further submitted that customer/complainant approached OP No.1 and they directed the complainant to approach OP No.1 through customer care number of the company. On the persistent demand of the complainant, OP No.2 requested the company i.e. OP No.1 to replace the product of the complainant with new one or to get the product/chimney sold to the complainant tested in laboratory and submit the laboratory test report but the OP No.1 neither got the laboratory test done nor replaced the product of the complainant with new one which conform to the specifications mentioned in the catalogue issued by OP No.1. Ultimately, OP No.2 got the laboratory test of the chimney sold to the complainant, done as number of complainants approached OP No.2. The said lab test proves that the chimney sold to the complainant is having 473 air-flow instead of 820 air-flow as per specified DB according to the catalogue issued by the OP No.1. So, OP NO.2 submitted that deficiency in service is on the part of the OP No.1 qua the complainant. OP No.2 has sold the product as per specifications prescribed by OP No.1.
4. In support of his complaint, complainant has tendered into evidence affidavits Ex.CA and Ex.CB alongwith copies of documents Ex.C1 to Ex.C5 and closed his evidence.
5. On the other hand, manager of OP No.1 has tendered affidavit Ex.OP1/A, Ex.OP-A alongwith copies of documents Ex.OP-B to Ex.OP-H and closed evidence. Further learned counsel for OP No.2 has tendered documents Ex.OP2/1 and Ex.OP2/2 and closed evidence.
6. We have heard the Ld. counsel for the parties, minutely gone through the record and have appreciated the evidence produced on record by both the parties with the valuable assistance of Ld. counsels for the parties.
7. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it appears that the case of the complainant is that he purchased chimney manufactured by OP No.1 from OP No.2 for a sum of Rs.9100/- vide retail invoice Ex.C1 dated 3.10.2014 with warranty of 60 months. The said chimney as per retail invoice Ex.C1 as well as brochure catalogue Ex.C2 of OP No.1, is having air-flow of 820DB. Complainant submitted that the said appliance (chimney) became out of order. Its sucking capacity is low down and it failed to throw the smoke out from the kitchen. Complainant brought the aforesaid defects to the notice of OP No.2 who directed the complainant to lodge complaint with OP No.1. Accordingly, complainant approached OP No.1 for the rectification of the defects in the chimney but no one came from OP No.1 to rectify the defect. The complainant was shocked to notice that the said chimney is not as per described specifications as described in the catalogue issued by the OP No.1 Ex.C2. The catalogue/cover has mentioned “Hindware DB 820 air-flow” meaning thereby, the said chimney has 820 DB air-flow. Whereas actually the said chimney purchased by the complainant has less air-flow. Its motor is also small with low capacity and non-standard as per specifications mentioned in the catalogue. The mechanic from OP No.1 came to rectify the defect who after checking the chimney informed the complainant that the chimney sold to the complainant would not work more due to low capacity of sucking smoke/air-flow. The complainant submitted that the OPs have sold sub-standard chimney to the complainant which is not as per specifications mentioned in the catalogue Ex.C2 as well as retail invoice Ex.C1. OPs failed to rectify the defect in the said product (chimney). They also failed to replace the same with new one as per specifications mentioned in the catalogue Ex.C2 and in the retail invoice Ex.C1. Complainant submitted that all this amounts to deficiency of service on the part of the OPs qua the complainant.
8. Whereas the case of the OP No.1. is that complainant got registered the complaint regarding the chimney, he has purchased from OP No.2, with OP No.1 on 5.11.2014 and after receiving the complaint, the technician of OP No.1 attended the complaint on 6.11.2014 and found that complainant had not even installed the product in question at his residence and the product was lying at his office without use. So the allegations of less suction of smoke by the said chimney, leveled by the complainant are without any base and are unreasonable because the complainant did not use the said product (chimney). So, complaint of complainant was closed down by OP No.1 being frivolous and vexatious. OP No.1 further alleged that complainant filed the present litigation in connivance with OP No.2 even the sale transaction has false/sham transaction. The business relationship between OP No.1 and OP No.2 have been discontinued since 15.7.2014 as OP No.2 has failed to clear its outstanding of Rs.5,49,209/- towards goods purchased from OP No.1. Another liability of Rs.5,28,750/- is also outstanding against OP No.2 for non-furnishing of C-Forms to OP No.1 within specified period despite repeated demands and request. OP No.1 told the OP No.2 to return dissatisfied/complained chimneys vide email dated 24.4.2014 Ex.OP-B but OP No.2 did not return the same rather kept on selling those chimneys. Even OP No.2 issued legal notice dated 21.7.2014 Ex.OP-C to OP No.1 with baseless allegations. OP No.1 submitted reply dated 20.8.2014 Ex.OP-D. OP No.1 gave offer of settlement to OP No.2 vide letter dated 17.11.2014 but OP No.2 did not furnish any reply to the said letters to OP No.1. OP No.2 also filed complaint to Commissioner of Police, Jalandhar against OP No.1 Ex.OP-F. The matter was investigated by Economic Offence Branch and they submitted report Ex.OPF/1 holding that the dispute between the parties is regarding payment of products and regarding the sale of non-standard products. The matter relates to civil dispute. As such, parties were advised to approach the court. So, present complaint has been filed by the complainant in connivance with OP No.2 just to harass the OP No.1. Learned counsel for OP No.1 submitted that under these circumstances, there is no deficiency of service on the part of OP No.1 qua the complainant.
9. Whereas the case of OP No.2 is that OP No.2 sold the product manufactured by OP No.1 vide invoice Ex.C1 as per specification of company. OP No.2 further submitted that customer/complainant approached OP No.1 and they directed the complainant to approach OP No.1 through customer care number of the company. On the persistent demand of the complainant, OP No.2 requested the company i.e. OP No.1 to replace the product of the complainant with new one or to get the product/chimney sold to the complainant tested in laboratory and submit the laboratory test report but the OP No.1 neither got the laboratory test done nor replaced the product of the complainant with new one which conform to the specifications mentioned in the catalogue Ex.C2 issued by OP No.1. Ultimately, OP No.2 got the laboratory test of the chimney sold to the complainant done, as number of complainants approached OP No.2. The said lab test report proves that the chimney sold to the complainant is having 473 air-flow instead of 820 air-flow as per specified DB according to the catalogue Ex.C2 issued by the OP No.1. The said report from NABL is Ex.OP2/1 and Ex.OP2/2. So, OP No.2 submitted that deficiency in service is on the part of the OP No.1 qua the complainant. OP No.2 has sold the product as per specifications prescribed by OP No.1. So, there is no deficiency of service on the part of the OP No.2 qua the complainant.
10. From the entire above discussion, we have come to the conclusion that complainant purchased chimney from OP No.2 manufactured by OP No.1 for a sum of Rs.9100/- vide retail invoice dated 3.10.2014 Ex.C1. The said chimney, as per retail invoice Ex.C1 as well as catalogue of OP No.1 Ex.C2, has capacity of air-flow of 820DB. The complainant came to know that its sucking capacity is lower than the prescribed capacity 820 DB air-flow. Complainant approached OP No.1 for rectification of the defects in the chimney. A mechanic from OP No.1 checked the chimney and informed to the complainant that chimney sold to the complainant would not work more due to low capacity of sucking smoke/air flow. Complainant then approached OP No.1 who got the capacity of chimney purchased by complainant tested from Material Testing Laboratory, New Delhi, India under the control of National Accreditation Board for Testing & CelIbration Laboratories and they submitted their report dated 29.10.2014 Ex.OP2/1 vide which they reported that capacity of emission of the chimney in question is 473 only and not 820 DB air-flow as written on the box of the chimney in question. OP No.1 has issued catalogue Ex.C2 showing the capacity of air flow of this chimney as 820 m3/hr and the OP No.2 sold this chimney to the complainant vide invoice Ex.C1 in which he has categorically mentioned the capacity of chimney 820 suction. So, it stands fully proved on record that the chimney sold by the OP No.2 manufactured by OP No.1 to the complainant was sold with specifications of air-flow of 820 DB whereas this chimney has capacity of only 473 DB air-flow. So, the OPs have sold lower standard chimney to the complainant than the specifications mentioned in the catalogue Ex.C2 and retail invoice Ex.C1. So, OP No.1 was bound to provide to the complainant chimney having capacity of air-flow 820 m3/hr by providing low standard chimney to the complainant than tho one described in the retail invoice Ex.C1 and catalogue Ex.C2. OP No.1 has certainly committed deficiency in service to the complainant.
11. The plea of learned counsel for OP No.1 is that the complainant did not install the chimney at his premises nor used the same, so, without installation of the product, the complainant should not be allowed to state that the chimney sold by the OP to the complainant is of less capacity than the capacity described in the retail invoice Ex.C1 and catalogue Ex.C2 this plea of OP No.1 is not tenable because if after test in the Material Testing Laboratory, Okhla Industrial Area, New Delhi, report of which is Ex.OP2/1, it is found that this chimney has quantity of emission as only 473 DB air-flow per hour and not of 820 m3/hr air flow, it is not necessary that low standard material supplied by the OPs to the complainant should be first used and then reported to the OP. Moreover, OP No.1 could not produce their counter report to rebut the report of Material Testing Laboratory dated 29.10.2014 Ex.OP2/1. So, certainly the OP No.1 has committed deficiency in service by selling low standard chimney to the complainant than the standard described in the invoice Ex.C1 and the catalogue Ex.C2.
12. As regards inter-see dispute between OP No.1 and OP No.2, this Forum has no jurisdiction to decide the cases of dispute between manufacturer and dealer but has jurisdiction only to decide the disputes of consumer. OP No.1 could file separate proceedings before the appropriate authority/court against OP No.2, if OP No.1 has any dispute regarding non payment of dues by OP No.2 to OP No.1.
13. Consequently, we allow the complaint with cost against OP No.1 and the OP No.1 is directed to replace the product (chimney) purchased by complainant with chimney having capacity of air-flow 820 m3/hr or in the alternative to refund the price amount of the chimney in question (Rs.9100/-) to the complainant within one month from the date of receipt of copy of this order, failing which OP No.1 shall be liable to pay interest @ Rs.9/- % per annum on this aforesaid amount, from the date of filing of the complaint till the payment is made to the complainant. OP No.1 also directed to pay the cost of litigation to the tune of Rs.2000/- to the complainant. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.
Dated Parminder Sharma Jyotsna Thatai Bhupinder Singh
24.06.2016 Member Member President
