29.3.2016

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The instant Appeal u/s 15 of the Consumer Protection Act, 1986 has been preferred by the OP assailing the judgment and order dt. 17.2.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Purulia, in Consumer Complaint No. 05 of 2013, directing the OP to replace the defective ‘Hariwill-4 Gas Analyzer, Model BM 7777’ machine free of cost within one month from the date of the order or to refund to the Complainant Rs. 2,64,317/- as paid by the Complainant for the said machine with interest @ 10% in case of default in replacement of the same.  The OP was also directed to pay to the Complainant Rs. 25,000/- as compensation and Rs. 5,000/- as litigation cost within the said period.

          Facts of the case, as emanating from the materials on records, are, in short, that the Respondent/Complainant purchased for the purpose of self-employment, as averred in Para-2 of the Complaint, from the OP one ‘Hariwill-4 Gas Analyzer, Model BM 7777’ along with other machine being ‘Smoke Meter’ for Rs. 2,64,317/- under Tax Invoice No. AIPL/Tax Inv/11-12/282 dt. 1.2.2012 and the said ‘Gas Analyzer’ was installed on 4.2.2012 at Kalpataru Dhunya Pariksha Kendra of the Respondent/Complainant at Balarampur as appearing from the Service Report dt. 4.2.2012 of the Appellant/OP.  After such installation, the said ‘Gas Analyzer’ recurrently indicated some defects in its operation.  Such defects being reported to the Appellant/OP, the technical men of the Appellant/OP attended to the defects on 21.3.2012, 21.5.2012, 31.5.2012, 1.8.2012, 10.9.2012, 16.10.2012, 18.10.2012 and 31.10.2012 as appearing from the Service Reports of respective dates of the Appellant/OP as available on records.  Noticing such recurrence of defects in the ‘Gas Analyzer’ in question the Respondent/Complainant by a Lawyer’s letter dt. 22.1.2013 demanded replacement of the allegedly defective  ‘Gas Analyzer’ in question along with refund of Rs. 79,317/- being the differential higher price of the same as compared to the market rate as charged by the Appellant/OP or refund of the price of the ‘Gas Analyzer’ in question in case of default in replacement of the same, but without any success.  Then the Complainant filed the Complaint concerned, before expiry of the warranty period on 4.2.2013, before the Ld. District Forum, as averred in the Petition of Complaint, which passed the order impugned in the manner as aforesaid.  Aggrieved by such order the OP has preferred the instant Appeal.

          The Ld. Advocate for the Appellant/OP has filed BNA through Misc. Application bearing No. MA/139/2016. The Ld. Advocate for the Appellant/OP has stated in the BNA that the Complainant concerned does not fall within the definition of ‘Consumer’ as defined u/s 2(1)(d) of the Consumer Protection Act, 1986 as the ‘Gas Analyzer’ in question was purchased for commercial purpose and that the averment in the Complaint about ‘self-employment’ is not supported by any proof.

          The Ld. Advocate further stated that the Complaint Case suffers from non-joinder of party being manufacturer of the ‘Gas Analyzer’ and that the alleged defects in the ‘Gas Analyzer’ are not supported by any expert opinion and hence, the allegation of defects cannot be accepted in absence of expert opinion.

          The Ld. Advocate also stated in the said BNA that the defects in the ‘Gas Analyzer’ developed for improper handling of the same by the Respondent/ Complainant and also for its non-connection with UPS, and that despite such lapses on the part of the Respondent/Complainant the Service Engineer of the Appellant/OP “rectified the said machine and also replaced the damaged parts free of costs….”, which is a natural phenomenon in any machine and hence, this event does not indicate any deficiency on the part of the Appellant/OP.

          The Ld. Advocate continued that the ‘Gas Analyzer’ in question having been used for a ‘prolonged period’ the claim for replacement of the same cannot be made.

          The Ld. Advocate finally stated in the said BNA in consideration of the aforesaid statements that the impugned judgment and order should be set aside.

          On the contrary, the Ld. Advocate for the Respondent/Complainant submits that the Complainant falls within the definition of ‘Consumer’ as defined u/s 2(1)(d) of the Consumer Protection Act, 1986 as the Complainant himself, after getting training from INDUS Scientific Private Limited of 11/2B, Hennur Bande, Hennur Road, Bangalore-560 04,  runs the proprietorship concern for the purpose of earning his livelihood by means of self-employment which is covered by the inclusive ‘Explanation’ appended to Section 2(1)(d) of the Consumer Protection Act, 1986.

          The Ld. Advocate further submits that the recurring repairing of the ‘‘Gas Analyzer’’ in question, as is substantiated by the Service Reports dated 31.3.2012, 21.5.2012, 31.5.2012, 1.8.2012, 10.9.2012, 15.10.2012, 18.10.2012 and 31.10.2012, as available on records, clearly indicates the defects in the ‘‘Gas Analyzer’’, and that for such proved defects no expert opinion is necessary, where the principle of res ipsa loquitur is applicable.

          The Ld. Advocate also submits that the Respondent/Complainant purchased the ‘Gas Analyzer’ in question from the Appellant/OP and hence, the Appellant/OP has contractual obligation to the Respondent/Complainant and such liability arising out of contractual obligation cannot be shifted to the manufacturer and that the contract between the manufacturer and the OP is an internal matter between them on the excuse of which the Respondent/Complainant cannot suffer.

          The Ld. Advocate continues that the lapses on the part of the Respondent/ Complainant, as taken recourse to by the Appellant/OP to evade its liability for deficiency, do not stand to reason as the same is not substantiated by any cogent proof, rather contrary is proved by the fact that the Respondent/Complainant has not raised any grievance against the ‘Smoke Meter’, which was also purchased from and installed by the Appellant/OP on the same date, as the same is functioning properly.

          The Ld. Advocate concludes that in view of the aforesaid facts and submission the instant Appeal should be dismissed with cost and the impugned judgment and order be affirmed.

          Heard the case, considered the respective submission of both the sides as advanced either being present on the date of hearing or by filing BNA through Misc. Application as mentioned hereinbefore, and also perused the materials on records.

          The averment in the Petition of Complaint reveals that the Respondent/ Complainant purchased the ‘Gas Analyzer’ in question for the purpose of earning livelihood by means of ‘self-employment’ which is supported by evidence of undergoing training by the Respondent/Complainant in respect of operation of the machine in question as indicated in the Training Certificate issued by INDUS Scientific Private Limited of 11/2B, Hennur Bande, Hennur Road,   Bangalore-560 043 as available on records, and thus the Respondent/Complainant falls within the inclusive definition of ‘Consumer’ as per ‘Explanation’ appended to Section 2(1)(d) of the Consumer Protection Act, 1986.

          Plethora of Service Reports as issued by the Service Engineer of the Appellant/OP itself, as referred to hereinbefore, reveal the recurrent repairing of the ‘Gas Analyzer’ in question thereby indicating ex facie the defects in the machine in question even without any report of expert.  In this context, reference may be made to a decision of the Hon’ble National Commission in M.D., M/s. Sona Auto Agency (P) Ltd. Vs. Sisirendra Nath Banerjee & Ors., reported in 2009 CTJ 1277 (NC), wherein the Hon’ble National Commission observed, “If repeated servicing and repairs turned out to be unsuccessful in resolving the problems encountered by the consumer-complainant, it would point to some serious defect, if not a manufacturing defect per se in the strict sense of the term”.

          The Appellant/OP cannot shake off his liability as is well settled because of the obligation arising out of the purchase transaction between the Appellant/OP and the Respondent/Complainant.

          On the aforesaid facts and evidence on records we find strong force in the submission of the Ld. Advocate for the Respondent/Complainant and hence, the merits of the case lean in favour of the Respondent/Complainant.

          Consequently, the Misc. Application bearing No. MA/139/2016 is thus disposed of and the Appeal being bereft of merit is dismissed. The order impugned is affirmed.  No order as to costs.