BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.31 of 2015

Date of Instt. 02.02.2015

Date of Decision :15.10.2015

Manit Malhotra aged about 37 years son of Pradeep Malhotra R/o 21, Modern Colony, Jalandhar.

..........Complainant Versus

1. HSIL Limited, through its Mg.Director, 301-302, Park Centra, Sector-30, National Highway-8, Gurgaon, Haryana-122001.

2. Daljit Roy Prop. Royco Industries, WX-255, Basti Nau, Jalandhar.

.........Opposite parties.

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Navjot Singh Adv., counsel for complainant.

Sh.KPS Gill Adv., counsel for OP No.1.

Sh.Gautam Roy, Auth.Rep. for OP No.2.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant purchased one Chimney of Hindware Pacific DB 820 Airflow for the consideration of amount of Rs.9001/- on 4.10.2014 from the shop of opposite party No.2 of Hindware Brand of the company of opposite party No.1 vide invoice No.3163. Hence the complainant is the consumer as per the Consumer Protection Act. The above said chimney has been sold with five years warranty and guarantee and said chimney has been purchased by the complainant by paying his hard earned money of Rs.9001/-. While selling the chimney, the opposite parties assured the complainant that the said chimney is of international standard, has airflow of 820 DB and is a perfect and best suitable for the kitchen of the complainant. At that time, it has also been assured by the opposite parties that proper service and follow up of the same will be given to the complainant. After one week of purchasing, the said chimney, it started giving problems on regular occasions and was not able to work properly. The said fact was duly informed to the opposite parties but no one came forward with any solution and thereafter the complainant was shocked to notice that the said chimney is not as per described specification as described on its cover/catalogue. It is pertinent to mention that the cover and catalogue has mentioned it has "Hindware Pacific DB 820 Airflow", meaning that the said chimney has 820 DB Airflow, whereas in actual the said chimney purchased and installed in the kitchen of the complainant has only 475 units of Airflow that is much lower than as described on its cover/catalogue and as per the assurance made by the opposite parties. The complainant was shocked to note that the chimney sold to the complainant is not as per the described specification and moreover is defective one. The chimney is sub-standard and the complainant has been mischievously cheated by the opposite parties and the opposite parties have sold the above said chimney by misrepresenting the specification and befooling ordinary prudent customer like the complainant. The complainant through his counsel served a legal notice to the opposite parties. On such like averments, the complainant has prayed for directing the opposite parties to replace the defective chimney with new one or to give back its price i.e Rs.9001/- alongwith interest. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared and filed their written replies. In its written reply opposite party No.1 took preliminary objections regarding maintainability, no deficiency in service on its part etc. It further pleaded that the complainant purchased the product in question on 4.10.2014 as per complaint and never brought any deficiency in the product in the knowledge of the opposite party No.1 herein till 14.11.2014. It is only on 14.11.2014 when opposite party No.1 received legal notice dated 8.11.2014 issued on behalf of the complainant that the complainant pointed out alleged deficiency. On 14.11.2014 itself opposite party No.1 fixed an appointment with complainant to redress his problem. The representative/technician of opposite party No.1 visited complainant's premises on 14.11.2014 and asked the problem faced by him. However the technician/representative of opposite party No.1 was surprised when complainant refused to get the product in question inspected by him and insisted upon unreasonable demand of measuring the suction power of product in question only at the premises of complainant which was not possible due to various technical constraints and the same was explained to complainant but still the complainant failed to buzz. The copy of job sheet pertaining to complaint attended on 14.11.2014 by opposite party No.1 is annexed herewith. Subsequently, having no other option left, opposite party No.1 sent reply dated 15.11.2014 in response to aforesaid legal notice dated 8.11.2014 wherein above said situation was duly explained and brought to the knowledge of the counsel of complainant. However, it was further stated in the reply that product in question has to be inspected before proceeding towards any resolution of the alleged problem and same may require off site inspection also. It is pertinent to mention that despite receipt of said reply complainant did not send any communication to opposite party No.1 in furtherance of above said reply in any manner nor offered or allowed the opposite party No.1 to carry out inspection or do needful as explained in the reply dated 15.11.2014. It is further submitted that in order to resolve grievance of complainant, inspection of product in question by opposite party No.1 was quintessential to ascertain the reasons of problem in product in question as alone motor power does not guarantee hight suction and suction depends on various other contributory factors such as duct size, number of angles given to the ducting, periodical cleaning of filters, static electricity supply, kitchen size etc. The refusal of complainant to get the product in question inspected by opposite party No.1 is dubious. It is further stated that complainant has intentionally concealed said reply dated 15.11.2014 from this Forum and has not placed said reply on record knowingly well that had the said reply would have been on record, the complaint would be treated as premature having no cause of action and this Forum ought not have issued notice on the same being premature. It is also submitted that if complainant had provided an opportunity to inspect the product in question to opposite party No.1 then his grievance would have been resolved to his complete satisfaction by opposite party No.1 but it seems that the complainant has more interest in litigation than resolving the issue. The opposite party No.1 is not responsible for selling its products to end customers and its distributors/dealers purchase the same from opposite party No.1. The relationship of opposite party No.1 and opposite party No.2 is based on principal to principal basis. In the present case opposite party No.2 being erstwhile distributor of opposite party No.1 and sold the product in question to complainant. The business relationship between opposite party No.1 and opposite party No.2 is discontinued since 15.7.2014 as opposite party No.2 has failed to clear its outstanding of Rs.5,09,983/- towards goods purchased from opposite party No.1 and also liability of Rs.5,28,570/- is also outstanding against opposite party No.2 for non-furnishing of C-Forms to opposite party No.1 within specific period of time despite of several repeated demand/requests. It is further submitted that in order to avoid outstanding dues, opposite party No.2 started complaining about chimneys of opposite party No.1 whereas as a gesture of goodwill, opposite party No.1 told to opposite party No.2 to return back dissatisfied/complained chimneys vide email dated 24.4.2014 but opposite party No.2 did not return back the complained/dissatisfied chimneys and kept on selling those chimneys. In order to harass and humiliate opposite party No.1 and to extort unjustified amount, opposite party No.2 went upto the extent of filing police complaint against the opposite party No.1 which was found to be non-maintainable and therefore, no FIR has been lodged against opposite party No.1. Opposite party No.2 after failing to implicate opposite party No.1 in his above said criminal complaint, has got the present complaint filed in collusion and conspiracy with complainant and that is why despite reply of legal notice dated 8.11.2014 by opposite party No.1, no opportunity was granted to the opposite party No.1 to inspect the product in question so as to ascertain the alleged defects/deficiency in product in question. It implies that complainant is not a bonafide consumer and has not installed the product in question at his premises. The complainant and opposite party No.1 are not in disagreement in present controversy and they both are supporting each other to drag the opposite party No.1 into this litigation. Thus the conduct of complainant and opposite party No.2 are not above board and the present dispute is not between complainant and opposite parties but between opposite party No.2 and opposite party No.1 which is a matter of civil dispute to be decided by appropriate competent civil court. Hence, the present complaint is liable to be dismissed on this ground also. It further pleaded that invoice does not contains the name and signature of the complainant. Opposite party No.1 was not part of sale transaction between complainant and opposite party No.2 and the question of giving any assurance/representation by opposite party No.1 other than written representation on package of product and warranty card does not arise at all. The opposite party No.1 is not responsible for selling its products to end customers as its distributors/dealers are responsible for selling it to end customers as distributor/dealers purchase the same from opposite party No.1. Opposite party No.1 has no knowledge that what transpired between complainant and opposite party No.2 at the time of sale as the product has been purchased by complainant from opposite party No.2. It denied other material averments of the complainant.

3. In its separate written reply, opposite party No.2 pleaded that the chimney was sold under the prescription and catalogue printed on the box. After getting complaint from complainant, the opposite party No.2 advised the complainant to contact toll free number of opposite party No.1. As per demand of complainant the opposite party No.2 requested the company/opposite party No.1 to give the clarification described on the cover and catalogue but the company/opposite party No.1 was unable to supply it to the opposite party No.2. The complainant claimed the chimney to be sub-standard and has been cheated. But this liability lies upon the shoulders of opposite party No.1 being manufacturer.

4. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C8 and closed evidence.

5. On the other hand, learned counsel for the opposite party No.1 has tendered affidavit Ex.OP/A alongwith copies of documents Ex.OP1, Ex.OP2, Ex.OP2/A, Ex.OP2/B, Ex.OP3, Ex.OP4, Ex.OP4/A, Ex.OP5, Ex.OP5/A, Ex.OP5/B, Ex.OP6, Ex.OP6/A, Ex.OP7 to Ex.OP10 and closed evidence. Further authorized representative of opposite party No.2 has tendered affidavit Ex.OP2/A and closed evidence.

6. We have carefully gone through the record and also heard the learned counsel for the complainant, learned counsel for the opposite party No.1 and authorized representative of the opposite party No.2.

7. The dispute between the parties is regarding the Chimney of Hindware Pacific DB 820 Airflow model. Counsel for the complainant contended that he purchased the chimney in question from opposite party No.2 vide retail invoice Ex.C1 whereon suction 820 is specifically mentioned. He further contended that after installing the chimney, the working of the same found to be not proper and as such it was removed and matter was brought to the notice of the opposite parties but to no effect. He further contended that suction power of the chimney sold to him is far less than 820 as represented to him and mentioned on the cover and catalogue/brochure of the chimney. He further contended that opposite parties are guilty of unfair trade practice. Counsel for the opposite party No.1 contended that the complainant has not installed the chimney and in fact complainant and opposite party No.2 are in connivance with each other. He further contended that the complainant has not purchased the chimney from opposite party No.2 and complainant has filed present complaint at the instance of opposite party No.2. He further contended that complainant did not allow the opposite party No.1 to inspect the chimney in his house. On the other hand, it has been contended by authorized representative of opposite party No.2 that complainant has purchased the chimney. He further contended that after installation the chimney it was not found upto to mark so he removed the chimney and same is lying useless in his house. He further contended that if the chimney is not as per specification as mentioned on the brochure and its cover, the opposite party No.1 being manufacturer is liable for the same. He further contended that he sold to chimney to the complainant vide cash retail invoice dated 4.10.2014 Ex.C1 for Rs.9001/-. We have carefully considered the contentions advanced by the parties. In the present complaint, we are not concerned with any dispute between opposite party No.1 and opposite party No.2 inter-se, and are supposed to decide the consumer dispute between the parties. According to the complainant he has purchased the chimney with 820 suction vide abovesaid retail invoice Ex.C1 for Rs.9001/- from opposite party No.2 i.e dealer of opposite party No.1. The brochure of the chimney manufactured by opposite party No.1 is on record as Ex.C2. The complainant has purchased the chimney of Pacific DB model having a Airflow or suction of 820 m3/hr. In the above brochure, the airflow or suction of the above said model of the chimney is also mentioned as 820 m3/hr. In the bill of chimney suction 820 is also mentioned. The sale of chimney is admitted by opposite party No.2. So, there is nothing to on record to conclude that complainant had not purchased the chimney from opposite party No.2. So far as the version of the opposite party No.1 that complainant did not allow the inspection of the chimney is concerned, according to the complainant after installing the chimney it was not found upto to mark, so he removed the chimney from the place and is lying defective and sub-standard in his possession. The opposite party could have asked the complainant to produce the chimney before this Forum. Moreover, the opposite party No.1 could have got tested any other new chimney of the same model from any laboratory and produced its test report on record to show that the suction power mentioned in the brochure/catalogue or on the cover of the chimney is correct. On the other hand, the complainant has produced test report Ex.C4 from material testing laboratory. It is in respect of the chimney of the same model as purchased by the complainant. As per this test report, the quantity of omission or airflow of the chimney was 473. However, as per specifications given in the catalogue, the suction power of the chimney in question is 820 m3/hr. Ex.C5 is letter of Accreditation granted by National Accreditation Board For Testing & Calibration Laboratories to material testing laboratory who gave its report Ex.C4. There is no legal bar in opposite party supporting the version of the complainant, if the defect complained of is manufacturing defect. Opposite party No.1 is manufacturer of chimney in question. It has mentioned its suction power as 820 m3/hr but on testing, it was found to be only 473 m3/hr. It constitute unfair trade practice on part of the opposite parties particularly the manufacturer. No useful purpose shall be served by ordering the replacement of the chimney with new one as the model in question of the chimney is having suction power of 473 m3/hr against 820 m3/hr as mentioned in the catalogue or brochure of the opposite party No.1 i.e manufacturer of the chimney.

8. So, in the above circumstances, the present complaint is accepted and opposite party No.2 is directed to refund the price of the chimney to the complainant after receiving sold chimney from him. Since the chimney is having manufacturing defect in it, as such opposite party No.1 who is manufacturer of the chimney is directed to pay Rs.15000/- to the complainant on account of compensation and further Rs.3000/- on account of litigation expenses. Compliance be made within one month. 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 Jaspal Singh Bhatia

15.10.2015 Member Member President