IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the   6^th  Day of  August 2022

  Present: -  Sri.E.M.Muhammed Ibrahim, B.A, LL.M. President

        Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                   Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.95/2017

          Rajeev Rolden                                    :         Complainant

          Ro-al, Kumbalam P.O

          Kundara.

          [By Adv.M.P.Sugathan Chittumala]

          V/s

          Manager                                            :         Opposite party

          Bismi Appliances

          Near Ushus Auditorium

          Pallimukku, Kollam-691010.

          [By Adv.T.J.Lakshmanan]

          2^nd  Additional Opposite party

          Electrolux

          Registered Office

          Auto Cars Compound, Adalat Road

          Aurangabad(Dist.), Pin-431005,

          Maharashtra, India.

FINAL  ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          This is a case based on a consumer complaint filed U/s 12 of the Consumer Protection Act 1986.

          The averments in the complaint in short are as follows:-

          On 04.04.2016 the complainant purchased an AC machine of  Electrolum  Company  along with V Guard stabilizer by paying a total amount of Rs.28,000/- as ready cash from the 1^st opposite party’s shop.  At the time of purchasing the said AC the 1^st opposite party made the complainant to believe that the AC is having  one year warranty.  After one and half months of installing the AC it showed some complaint in cooling.  Thereupon the complainant informed the matter to the 1^st opposite party and they deputed their electrician and made it in a running condition.  But after one month the AC again showed some complaint.  The technician again came over repaired it and made it in a running condition.  Within one year the said AC showed complaint on 8 times. Hence the complainant demanded to exchange the said AC to the 1^st opposite party since the complainant believed that AC is having manufacturing defect.  But the 1^st opposite party is not ready and willing to replace it.  Hence the complaint.

          Originally only the dealer alone was made as opposite party.  Thereafter on the basis of the written version filed by the dealer the complainant got impleaded the additional 2^nd opposite party who is the manufacturer of the AC.  But the address given in the written version was incorrect and notice sent to the additional 2^nd opposite party returned un served.  There after  direction was issued by this Commission to produce present correct address of the manufacturer.  Accordingly address was produced but notice sent in the said address also returned stating incomplete address.  Neither the complainant nor the 1^st opposite party produced the correct address of the 2^nd opposite party.  Hence IA.198A/2019 filed by the complainant praying to direct the 1^st opposite party to produce the correct address of the 2^nd opposite party stands closed. 

On 17.12.2020 the complainant was directed to take steps to publish notice against the additional 2^nd opposite party.  Several posting were given for producing of  paper publication against additional 2^nd opposite party.  But the complainant failed to produce the same.  On perusal of the complaint it is seen that no specific relief is sought against the 2^nd opposite party.  All the reliefs are sought against the dealer(1^st opposite party) In the circumstances order to produce paper publication against 2^nd opposite party stands reviewed and dispensed with and decided to proceed with the case. 

 Originally the 1^st opposite party filed a detailed version raising the following contentions.  The complaint is not maintainable either in law or on facts.  The complaint is bad for non joinder of necessary parties.  The manufacturer of  Air Condition(AC) is M/s Electrolum Company is not made a party in the complaint.  Hence the complaint is not maintainable.  The complainant is having no cause of action against the opposite party to file the present case.  The 1^st opposite party is only a dealer of the product manufactured and supplied by the respective manufacturer.  However the 1^st opposite party would admit that it had delivered one Air Condition to the complainant which was selected by him along with owners manual of the product and its warranty card provided by the manufacturer which is kept along with the product also handed over to the complainant.  After purchasing the Air Condition from the opposite party the complainant has not availed any sort of service from the opposite party.  He never approached the opposite party with any sort of complaint as alleged in the complaint.  The complainant has not availed any service from opposite party after purchasing the product.  As the complainant would alleged manufacturing defect of the AC in the complaint the dealer is not liable to indemnify the complainant.  There is no specific pleadings in the complaint with regard to the date on which the complainant noticed the alleged problems and on which dates the alleged technician attended the issued and also the dates on which the complainant made the alleged complaint to the opposite party.  The present complaint has been filed only on an experimental ground without any bonafides.  The compensation of Rs.50,000/- claimed for deficiency in service is highly excessive and the complainant is not entitled to get the same since there is no deficiency in service on the side of  opposite party.  The opposite party never caused any hardship to the complainant as alleged in the complaint.  Hence the complainant is not entitled to get any relief sought for in the complaint.  The 1^st opposite party further prays to dismiss the complaint with his costs.   

After filing written version with the 1^st opposite party the complainant filed IA 198A/2019 and as per the order in I.A complainant got amended the complaint.  Amended  complaint would further show that the manufacturing company was impleaded as additional 2^nd opposite party.  But the said additional 2^nd opposite party failed to appear before this Commission.  Therefore the 1^st opposite party dealer was asked to file the correct address of the manufacturer impleaded as additional 2^nd opposite party.  But the 1^st opposite party has deliberately not produced  the present correct address of the additional 2^nd opposite party and thereby the 1^st opposite party committed unfair trade practice also.  Though the complaint was amended to the above effect and opportunity was granted,  the 1^st opposite party has not filed any additional version disputing the above allegations in the amended complaint.

          In view of the above pleadings the points that arise for consideration are:-

1. Whether the present complaint filed against the dealer without impleading the  manufacturer is maintainable?
2. Whether there is any deficiency in service or any unfair trade practice on the part of the opposite party dealer?
3. Reliefs and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.P1 document.  The report of the expert has been  marked as Ext.C1.  Opposite party has examined one witness DW1.  No documentary evidence has been adduced on the side of the opposite party.  Heard both sides.

Point No.1

The following are the admitted facts in this case.  The complainant purchased the disputed AC from the 1^st opposite party as per Ext.P1 tax invoice.  However it is contented by the 1^st opposite party that he is only a dealer and hence  he is not responsible for the manufacturing defect if any of the product.  But the 1^stopposite party has miserably failed to produce the correct address of the manufacturing company.  Hence the complainant has got amended the complaint and would allege in the amended complaint that the 1^st opposite party has deliberately not furnished the present correct address of the manufacturing company which amounts unfair trade practice.    It is clear from the available materials that the 1^st opposite party has been dealing in a product manufactured by the company which has not specific address or specific existence and that is why the notice issued to the alleged manufacturer returned un served stating addressee left.  On one occasion the notice returned stating office closed due to Covid -19 and other three notices returned stating addressee left.  In view of the endorsement on the cover containing notice by the postal authorities it is clear that the manufacturer is either evading the receipt of notice or it is a fictitious company.  The dealing in the product manufactured by a fictitious company having no existence or having no permanent address itself would definitely amounts to unfair trade practice and customers shall not be allowed to be cheat the dealer by distributing or selling product manufactured by such irresponsible, unauthorized or fictitious company.   The 1^st opposite party who dealt with the product(AC) obtained  profit from the sale of the product and swallowed the same is liable to make amend the loss if any sustained to the consumer especially when the dealer failed to point the manufacturer.

The learned counsel for the 1^st opposite party dealer by relying on the dictum laid down in Hindustan Motors Vs Sivakumar and others reported in 2000(10)SCC 654 has argued that the allegations of the complainant is with regard to the manufacturing defect of the AC and in a case of manufacturing defect dealer is not at all liable.  We find no merit in the above argument since the complainant has not alleged any manufacturing defect in the complaint.  The specific case of the complainant that in this regard is stated in paragraph 3 of the complaint wherein it is stated that the AC purchased from the 1^st opposite party has become defective within one and half months of its purchase.  Further down the complainant would state the defect of the AC which is quoted below in the same language “AC bpsSIqfnwKvIpd-ªp. E6-Â problem ImWn-¨p.This is the only defect pleaded in the complaint.  Even the complainant has no case that the AC machine purchased from the dealer is having any manufacturing  defect.  The evidence available on record including Ext.C1 report also would not show that it is a manufacturing defect.  In the circumstances the above quoted decision of the Hon’ble Supreme Court relied on by the opposite party dealer is not at all applicable to the facts of this case.  The point answered accordingly.

Point No.2&3

For avoiding repetition of discussion of materials these 2 points are considered together.  PW1 has filed proof affidavit in lieu of chief examination by reiterating the averments in the complaint and got marked Ext.P1 tax invoice and C1 expert report.  It is brought out during cross examination that the complainant was having no idea regarding the merit of the AC manufactured by different companies.  But the 1^st opposite party introduced different types of AC’s manufactured by different companies and made the complainant to believe that the AC manufactured by Electrolum company is long lasting and having comparatively lesser price.  Prior to that date the complainant was having no ideal regarding the AC manufactured by the Electrolum Company.  However the complainant purchased the same by believing the 1^st opposite party Bismi Appliances.  It is brought out during cross examination that  the 1^st opposite party has not handover any separate warranty card.  The complainant was of the view that bill is the warranty card and therefore he has not made any complaint regarding the non issuance of warranty card.  He has also received user manual of the product and the name of the manufacturing company is stated as Electrolux.  But according to PW1 the address of the company is not stated in the user manual.  The specific case of the 1^st opposite party is along with AC warranty card and user manual was available in the box but the complainant  has denied the same.  It is the bounden duty of the dealer of a product having warranty to entrust the warranty card and bill of the product duly filled up stating the name of the purchaser putting the date of sale and signed and sealed by the dealer.  Even the 1^st opposite party has no such case that he has hand over the warranty card duly filled up stating the name of the purchaser, date of sale and affixing the seal of the 1^st opposite party dealer.  In the circumstances it is crystal clear that the contention of the opposite party that  the warranty card and user manual is there in the box containing AC is devoid of any merit.  It is true that the warranty is provided by the manufacturer.  They might have kept the warranty and in the packet containing AC.  In such circumstances it is the duty of the dealer to open the box in presence of the complainant either at the time of sale or after it is brought to the place where it is to be installed,  and  take out the warranty card fill it up and put the name of the purchaser, date of sale affix the seal of  the dealer and entrust the same to the complainant along with the bill of the product.  Then only warranty is said to be issued.  Even if an unfilled warranty card form is kept at the packet without putting the date of  sale, name of the customer and seal of the dealer it would not amount to the issue of a valid warranty as per law.  No such warranty has been issued to the complainant even according to the 1^st opposite party which itself would amount to deficiency in service and unfair trade practice on the part of the 1^st opposite party dealer. 

It is also clear from the available materials that the complainant managed to obtain the name and address of the manufacturer and furnished the same with a request to issue notice to the manufacturer as additional 2^nd opposite party.  The notice was repeated 5 times but it never served, it returned stating addressee left.  The non furnishing of warranty card is to be read along with the above postal endorsement.  Then it is clear that the opposite party has been dealing in electronic product like AC which are manufactured by  a company who is having no permanent business place nor a reputed company and employees of the 1^st opposite party persuaded the complainant to purchase AC manufactured by such a company which also amounts to deficiency in service as well as unfair trade practice. 

The 1^st opposite party denied the case of the complainant that the AC machine purchased by the complainant from the 1^st opposite party is a defective one.  Inorder to substantiate the same the complainant caused to examine the AC by deputing an expert and obtained Ext. C1 report.    After marking C1 report the case of the 1^st opposite party is that even if the disputed AC is having the defect as stated in Ext.C1 report the AC need not be replaced by a new one.  The   main  defect noted by the expert who issued C1 report is  “ icing due to improper working of the Air Conditioner’s compressor”.  There is no mention in ext.C1 report that  compressor of the AC is totally defective.    If it is not properly working it cannot be said to be manufacturing defect.  In such circumstances even though the complainant is  not entitled to get it replaced as no manufacturing defect is proved,  he is entitled to get sufficient compensation. It is clear from the available evidence that complainant sustained much mental agony and financial loss due to the non working of the product(AC) within the warranty period itself.  The complainant has demanded Rs.50,000/- as compensation.  However the price of the AC and compressor even according to the complainant and as per Ext.P1 bill is only Rs.28,000/-.  The AC is even now at the residence of the complainant.  Whether the AC is now in a working condition or not is not made known to the court by pleadings and evidence.  Whether he has got it repaired and using it is not revealed.  Any how the AC is even now with the complainant.  But it has got some defect as pointed out by the expert in C1 report.

Considering all these aspect we are of the view that the complainant is entitled to get compensation to the tune of Rs.15,000/- from 1^st opposite party who sold sub standard AC and that too without providing proper warranty by filing up warranty card and sealing the same without  putting the date of sale of the product.  The complainant is also entitled to get Rs.5000/- as costs of the proceedings.

In the result complaint stands allowed in the following terms:-

The 1^st opposite party is directed to pay Rs.15,000/- as compensation along with interest @ 6% p.a within 45 days from today.

 The 1^st opposite party is directed pay Rs.5000/- as costs of the proceedings. 

The 1^st opposite party is directed to comply with the above directions within 45 days from today  failing which the complainant is at liberty to recover the same

along with interest @ 9% p.a from the date of complaint till realization from the 1^st opposite party and its assets.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  6^th   day of  August 2022.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1  :         Rajeev Rolden

Documents marked for the  complainant

Ext P1:        Original bill dated 04.04.2016 for Rs.28000/-

Witnesses Examined for the opposite party:-

DW1           :         Jyothish.A

Documents marked for the opposite party:-Nil

Ext.C1                  :         Expert report.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent