PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) In brief consumer dispute is as under –
This is the complaint regarding the defective oven purchased by the Complainant from Opposite Party No.2 on 02/12/06 for Rs.29,000/- as alleged by the Complainant.
2) The Complainant has stated in the complaint that he had purchased Caff Oven manufactured by the Opposite Party No.1 from Opposite Party No.2 with a written warranty of one year with promise and assurance of standard quality and after sale service. But after 4 months from the date of purchase the said Oven became defective as the buttons were not working properly. The Complainant immediately brought these defects to the notice of the Opposite Parties. They promised to repair the same from time to time whenever the Complainant reminded them but they did repair the oven. Then Complainant sent her complaint by fax on 19/05/2008 to one Mr.Arunkumar at Mumbai. After making telephonic calls Complainant was given complaint no.7496, but nothing was done by the Opposite Parties.
3) The Complainant further stated that the broucher given by Opposite Party No.2 shows that the over is made in Itali but it is found to be of substandard quality and appears to be made by Opposite Party No.1.
4) The Complainant also stated that she again sent a letter dtd.03/06/08 to the Opposite Parties requesting to replace the over (annexure-B) throughout 1 ½ year she was trying to contact the Opposite Parties but the over was not repaired nor it was replaced.
5) On 04/08/08 the Complainant issued notice to Opposite Party by Registered Post calling upon the Opposite Parties to refund the cost of the oven and Rs.5,000/- (annexure –C).
6) Opposite Party No.1 replied the Complainant’s above notice and asked her advocate to furnish the copy of invoice and warranty (Exhibit-D).
7) The Complainant’s advocate sent the copy of the invoice and letter dtd.25/08/08 (Exhibt-E).
8) The Opposite Party No.1 then informed the Complainant by its letter dtd.05/09/08 that the warranty period was over hence, the claim or request in her notice cannot be granted (Exhibit –E1).
9) The Complainant has prayed for the cost of the defective over or replacement of the defective oven, compensation of Rs.50,000/- for mental and physical harassment and Rs.10,000/- as cost of the complaint, etc.
10) The Complaint was admitted and the Opposite Parties were served with the notice. Opposite Party No.1 appeared through its Ld.Advocate Shri. Pratik Lubri. Opposite Party No.2, though served with the notice, did not appear before this Forum. The postal acknowledgement in this respect is on record of this Forum. Hence, order has been passed against the Opposite Party No.2 by this Forum to proceed ex-parte vide Roznama dtd.03/03/09.
11) The Opposite Party No.1 filed affidavit in reply to the say of the Complainant dtd.03/03/09 wherein the Opposite Party has denied the jurisdiction of this Forum. It is the contention of the Opposite Party No.1 that the cause of action has arisen at Vileparle and not in the jurisdiction of this Forum.
12) The Opposite Party No.1 did not file its written statement and written argument, etc. Opposite Party No.1 did not appear before this Forum since 12/08/2009.
13) The Complainant has submitted the copies of the following documents in support of her complaint –
a) Invoice dtd.02/12/06 regarding purchase of the Oven.
b) Letter dtd.03/06/08 from Complainant to Opposite Party No.2.
c) Legal Notice to Opposite Party No.1 and 2 dtd.04/0/08.
d) Letter dtd.25/08/08 from Opposite Party No.1 to the Advocate of the Complainant.
e) Letter dtd.13/08/0/8 from Opposite Party No.1 to the Advocate of the Complainan.
f) Letter dtd.05/09/08 from Opposite Party No.1 to the Advocate of the Complainant.
14) We heard the Ld.Advocate for of the Complainant and perused all the papers submitted by both the parties and conclude as under –
The issue of jurisdiction was discussed and the Ld.Advocate for the Complainant has explained that, though the Oven in question was purchased at Vileparle, the Complainant resides at Malbar Hill i.e. in the jurisdiction of this Forum and the Oven was used in her home where it became defective which is the cause of action. In view of the above submission and the perusal of the entire complaint we are of the opinion that the cause of action has arisen in the jurisdiction of this Forum and this Forum has the jurisdiction to entertain and decide the complaint.
15)From the complaint itself it is clear that the Complainant has purchased the Oven from Opposite Party No.2 for which the Complainant has attached the invoice as annexure A to the Complaint. However, we have asked for the warranty of this apparatus (Oven) but we did not find any warranty of whatsoever period attached to the complaint. The Complainant has only averred in the complaint that the Opposite Party No.2 had orally granted 5 years warranty of trouble free Oven. But as per the established principle of law, only oral submission without any evidence we cannot assume that there was a warranty of 5 years.
16)The Complainant also averred in para 4 of the Complaint that the Oven became defective after 4 months from the date of it’s purchase and the defects mentioned by the Complainant were as follows –
a)“Oven could not be used due to defect in dispsply”
b)“Non working of all buttons and its other parts”
The Complainant has failed to give any evidence to show which parts were defective and whether the defects were the
manufacturing defects; only a oral submission, that the oven was defective. Buttons & other parts were non working, will only
amount to an ambiguous statement in the air and will not substantiate, the complaint of defective oven sold by the Opposite
Party.
17) The Complainant’s only statement that she contacted the Opposite Party No.2 after Jun, 07 of various times but they give only assurance without any written evidence cannot strengthen the case. Even she did not file the copy of Fax complaint sent by her on 19/05/08 as alleged by her. Only documentary evidence submitted by the Complainant is a letter dtd.03/06/08 addressed to Opposite Party No.2. However, there is no evidence to show that this letter has been received by the Opposite Party No.2. The only document received by Opposite Party No.1 and Opposite Party No.2 is the notice sent to them by the Ld.Advocate of the Complainant Shri.R.S.Tiwari. The letter is dtd.04/08/2008.
18) It is seen from the correspondence between the advocate for the Complainant and Opposite Party No.1 that Opposite Party No.1 has admitted in its letter dated dtd.05/09/08 that the oven sold to the Complainant was against one year warranty. However, the Opposite Party No.1 has denied the claim on the ground of expiry of warranty of one year.
19) From the above facts though the Complainant has pleaded that she contacted the Opposite Party No.2 on telephone and through her representatives, immediately after the oven became defective, she only made written correspondence through her advocate on 04/08/08 i.e. after on year and 8 months. The Complainant had approached the Opposite Parties after expiry of the warranty.
20) In order to substantiate the allegation of defective goods the Complainant should give some evidence other than sheer oral averment to show that she had complained to the Opposite Parties with specific defects within warranty period. In this case the Complainant has failed to give sufficient evidence in this respect and only oral averment without any supporting evidence will not bring home the defects in the oven sold by the Opposite Parties. Therefore, we do not find any merit in this case and pass the following order -
O R D E R
i.Complaint No.247/2008 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
