Order by
Sh.Amrinder Singh Sidhu, President
1. Sh.Balraj Bains, complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that he purchased one washing machine Whirlpool 8.00 kg WM top loading 0000004 B from Opposite Party vide invoice No. 000170 dated 03.09.2018 worth Rs.26,000/-. The Complainant further alleges that at the time of delivery of the said washing machine, the Opposite Party gave guarantee for two years against any manufacturing defect, but since the time of its purchase, said washing machine is not working properly. The Complainant visited the Opposite Party and lodged the complaint regarding the washing machine and in this regard, the mechanic of the Opposite Party visited twice, but the defect could not be removed and hence, there is manufacturing defect in the said machine. Thereafter, the Complainant approached the office of Opposite Party number of times and re quested to replace the machine in question as there is some technical defect in it, but the Opposite Party did not pay any heed to the request of the Complainant. Hence, there is deficiency in service and Unfair Trade Practice on the part of the Opposite Party. Vide instant complaint, the complainant has sought the following reliefs.
- To replace the product in question or in alternative to refund the price of the machine i.e. Rs.26,000/-.
- and also to pay Rs.20,000/- as compensation for causing her mental tension and harassment and
- Any other relief which this Commission may deem fit and proper may be awarded to the complainant.
Hence, this complaint.
2. Upon notice, Opposite Party appeared and contested the complaint by filing written reply taking preliminary objections therein inter alia that the Opposite Party has no liability to be performed against the Complainant. In fact, the Opposite Party is a dealer who is selling the electronic products from different companies and the Opposite Party is not a manufacturer of that product. Moreover, the goods once sold by the dealer will not be taken back. If there is any defect or problem, the customer has to approach the manufacturing company. As the manufacturing company who only provides the guarantee, warranty to the products and it is the liability of the manufacturing company to replace or repair the product which is sold by the dealer if any defect occurs in the product of the company. On merits, it is averred that it is correct that the Opposite Party by making his best efforts provided the services of the manufacturing company to the Complainant through company’s mechanic on 14.09.2018, then on 24.09.2018 and then on 11.10.2018, but it is wrong that there is any technical defect in the said product and there is no deficiency in service on the part of the Opposite Party. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
3. In order to prove his case, complainant tendered into evidence affidavit Ex.C1 in support of the allegations made in the complaint and also tendered into evidence the copy of bill Ex.C2, affidavit of Gurpal Singh, Satpal Singh and Jagaroop Singh in support of contention of the Complainant Ex.C3 Ex.C4 and Ex.C5, Copy of bill issued by Ek Noor Care Centre Ex.C6 and closed his evidence.
4. On the other hand, to rebut the evidence of the complainant, the Opposite Party tendered into evidence the affidavit of Sh.Mohit Garg Ex.OP1 and closed the evidence on behalf of Opposite Party.
5. We have heard the ld.counsel for the parties, perused the written arguments of the Opposite Party and also gone through the evidence produced on record.
6. Ld.counsel the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the Complainant purchased one washing machine Whirlpool 8.00 kg WM top loading 0000004 B from Opposite Party vide invoice No. 000170 dated 03.09.2018 worth Rs.26,000/-, copy of bill is placed on record as Ex.C2. Further contended that that at the time of delivery of the said washing machine, the Opposite Party gave guarantee for two years against any manufacturing defect, but since the time of its purchase, said washing machine is not working properly. Ld.counsel for the Complainant further contended that the Complainant visited the Opposite Party and lodged the complaint regarding the washing machine and in this regard, the mechanic of the Opposite Party visited twice, but the defect could not be removed and hence, there is manufacturing defect in the said machine. Thereafter, the Complainant approached the office of Opposite Party number of times and requested to replace the machine in question as there is some technical defect in it, but the Opposite Party did not pay any heed to the request of the Complainant and hence there is deficiency in service and Unfair Trade Practice on the part of the Opposite Party.
7. On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the Complainant on the ground that the Opposite Party has no liability to be performed against the Complainant. In fact, the Opposite Party is a dealer who is selling the electronic products from different companies and the Opposite Party is not a manufacturer of that product. Moreover, the goods once sold by the dealer will not be taken back. If there is any defect or problem, the customer has to approach the manufacturing company. As the manufacturing company who only provides the guarantee/ warranty to the products and it is the liability of the manufacturing company to replace or repair the product which is sold by the dealer if any defect occurs in the product of the company. On merits, it is averred that it is correct that the Opposite Party by making his best efforts provided the services of the manufacturing company to the Complainant through company’s mechanic on 14.09.2018, then on 24.09.2018 and then on 11.10.2018, but it is wrong that there is any technical defect in the said product and there is no deficiency in service on the part of the Opposite Party.
8. It is not the denial of the case that the Complainant purchased one washing machine Whirlpool 8.00 kg WM top loading 0000004 B from Opposite Party vide invoice No. 000170 dated 03.09.2018 worth Rs.26,000/-, copy of bill is placed on record as Ex.C2. It is also not denied by the Opposite Party that the product in question occurred defects and in this regard, the Opposite Party sent their mechanic three times i.e. on on 14.09.2018, then on 24.09.2018 and then on 11.10.2018, but he could not remove the defect in the product in question. In this way, firstly as per its own admission of the Opposite Party, the defect occurred in the product on 14.09.2018 i.e. after about 11 days from the date of its purchase and then on 24.09.2018 (after about 21 days), but the Opposite Party could not rectify its defect. Rather the Opposite Party has raised specific plea that the Opposite Party is not responsible for any defect in the product and the Complainant has not arrayed the manufacturing company as necessary party. But we are not agree with the aforesaid contention of the Opposite Party. When the definition of ‘trader’ is read in the light of definitions of ‘complainant’, and ‘complaint’, it would seem manifest that the basic privity of contract is between the consumer who has bought the goods for consideration etc. and the trader who has sold them to him either as a seller or distributor thereof. Generally, the primal grievance of the complainant would be against the trader only on the ground that the goods supplied by him suffer from one or more defects. Plainly enough the privity of contract and the relief claimed is against the trader, be that seller of the distributor of the goods. Indeed one can visualize a situation where the purchaser of goods may not even be aware of who the original manufacturer thereof is. The trader alone is thus the primal and necessary party in a complaint of this nature against whom indeed the various reliefs envisaged by the Act may be claimed. It is nowhere laid down either in the Act or the Rules framed thereunder that whenever a trader is proceeded against the original manufacturer of the goods must also be traced and necessarily made a party alongwith him. Merely because the manufacturer may be a possible party is no ground for holding in a reverse that he is a necessary party whose non-joinder would be fatel to the whole proceedings. Thus, the original manufacturer is not a necessary party in a complaint against the trader for the supply of defective goods.
9. To corroborate his assertion and to prove the manufacturing defect in the product in question, the Complainant has placed on record three duly sworn affidavits of different persons i.e. affidavits of Gurpal Singh, Satpal Singh and Jagaroop Singh in support of contention of the Complainant Ex.C3 Ex.C4 and Ex.C5 and Copy of bill issued by Ek Noor Care Centre Ex.C6 and all of them have specifically deposed that on 15.2.2019 the Complainant made complaint on Toll Free number of the company and then, the Whirlpool Company sent its authorised mechanic namely Randhir Singh who after checking told that the Opposite Party has sold the old machine to the Complainant and its defect can not be removed and also told that the Whirlpool company is not responsible for that lapse on the part of the Opposite Party. On the other hand, the Opposite Party has nowhere rebut the aforesaid contention of the Complainant by filing any cogent and convincing evidence. In this way, the evidence produced by the complainant alongwith duly sworn affidavit of the complainant Ex.C1 is to be admitted as true in the absence of any rebuttal in the shape of affidavit who have failed to produce the same to support its defence to rebut the aforesaid contention of the Complainant. It has been held by the Hon'ble State Commission of Punjab in case Life Insurance Corporation of India Vs. Miss Veenu Babbar and another 2000(1) CLT 619 that where no supporting affidavit is filed by the tenderer of the documents, these documents could not be treated as substantive material to base any decision. Same view has been taken by the Hon'ble National Commission in case Life Insurance Corporation of India & Ors. Vs. Kunari Devi IV(2008) CPJ 89 (NC) that where no affidavit has been produced in support of allegation, the documents so produced not to be treated as evidence of the tenderer of those documents.
7. The case of the complainant is that the Washing Machine in question is having manufacturing defect and to strengthen his version, the complainant has tendered his duly sworn affidavit Ex.C1 and affidavits of Gurpal Singh, Satpal Singh and Jagaroop Singh in support of contention of the Complainant Ex.C3 Ex.C4 and Ex.C5 and Copy of bill issued by Ek Noor Care Centre Ex.C6. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that
“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”
Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that
“when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost.”
10. In the instant case, the washing machine in question started giving troubles since the date of its purchase i.e.within warranty period. In this regard, Hon’ble National Commission, New Delhi in case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that
“the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”
As stated above, the complainant proved all these averments through his duly sworn affidavit Ex.C1 and also proved on record the copy of bill Ex.C2, affidavits of Gurpal Singh, Satpal Singh and Jagaroop Singh in support of contention of the Complainant Ex.C3 Ex.C4 and Ex.C5 and Copy of bill issued by Ek Noor Care Centre Ex.C6 and the evidence produced on record by the complainant remained unrebutted and unchallenged through any cogent and convincing evidence.
11. In view of the aforesaid facts and circumstances, the complaint is allowed and the Opposite Party is directed to refund the amount of Rs.26,000/- (Twenty Six thousands only) alongwith interest @ 8% per annum w.e.f. 03.09.2018 (i.e. from the date purchase of the washing machine in question) till its actual realization. Opposite Party is also directed to pay lump sum compensation of Rs.5,000/- (Rupees five thousands only) on account of harassment, mental tension and litigation expenses, to the Complainant. The compliance of this order be made by the Opposite Party within 45 days from the date of receipt of copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
12. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the two Whole Time Members in this Commission since 15.09.2018. Moreover, the President of this Commission is doing additional duties at District Consumer Commission, Faridkot. There is only one working day in a week when the quorum of this Commission remains complete.
Announced in Open Commission.
Dated: 13.08.2021.
