BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 15th of November 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.167/2010
(Admitted on 5.6.2010)
Sri Deepak Raj,
Aged about 39 years,
So Sri Anand Nayak,
House No.173, Divya Deep,
Vorkody 671323.
Manjeshwar, Kasaragod,
Kerala State. …….. COMPLAINANT
(Complainant: Appeared in person)
VERSUS
1. Managing Director,
Godrej & Boyce Mfg. Co. Ltd.,
Appliance Division, Plant 11,
Phiroshnagar, Vikroli W
Mumbai 400 079.
2. Proprietor/Owner,
Giriyas Investment Pvt. Ltd.,
Kadri Road,
Mangalore -575 003. ……. OPPOSITE PARTIES
(Advocate for Opposite Party No.1: Sri.Shivashankar.R.Ambhi)
(Advocate for Opposite Party No.2: Exparte.)
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging defective goods against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, Opposite Party No.1 is the manufacturer of home appliance of Godrej and Boyce. The Opposite Party No.2 is the authorized dealer of the Opposite Party No.1. carrying on business of selling of home appliances to general public.
It is submitted that, the Complainant had purchased a GODREJ: AC SPLIT GSC18FP3 WIZ (1.5 TON, 3 STAR, FLAT) on 13.3.2010 from Opposite Party No.2 for a total sum of Rs.23,350/-. It is stated that, the above said Air Conditioner is not working since from the date of installation, the Complainant lodged a Complaint over the phone to the dealer and also through SMS under service No.5710496 on 29th March 2010. The Opposite Party No.2 referred the Complaint to Godrej Service Centre, Kasargod and registered the Complaint on 13.4.2010 under service No.460486.
It is submitted that, the Air Conditioner purchased by the Complainant is not working properly nor cooling, the same has been brought to the notice of the Opposite Party No.2 through phone on the next day of installation. Even after several service from the Godrej Service Centre, Air Conditioner is still not working and contended that, the defect in the Air Conditioner is a result of poor workmanship and defect in manufacture of the company, thereby the Complainant suffered loss.
It is stated that, the Opposite Parties are liable for breach of contract as they have not complied with the terms of the warranty and have acted extremely negligent in attending the Complaint and hence, the above complaint filed under Section 12 and 13 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay a sum of Rs.23,350/- being price of AC with interest @ 18% per annum from 13.4.2010 till realization and to pay compensation and costs of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.2 despite of serving notice neither appeared nor contested the case till this date. Hence, we have proceeded exparte as against the Opposite Party No.2. The acknowledgement placed before the FORA marked as court document No.1.
Opposite Party No.1 appeared through his counsel filed version admitted the purchase of the Air Conditioner for a sum of Rs.23,350/- on 13.3.2010 from them. It is stated that, the Air Conditioner purchased by the Complainant is not a defective piece, there is no negligence or deficiency in service by this Opposite Party and contended that this Opposite Party is ready and willing to set right the things if the Complainant comes up with any problem in the said Air Conditioner. And finally it is stated that, the Complainant not entitled to claim any damages/compensation and prayed for dismissal of the Complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the service rendered by the Opposite Parties amounts to deficiency and the AC (Air Conditioner) sold by the Opposite Parties proved to be defective?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri Deepak Raj (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex.C1 to C8 were produced for the Complainant as listed in the annexure. One Sri.R.Soloman (RW1), Branch Commercial Manager of the Opposite Parties filed counter affidavit and answered the interrogatories served on him. Both parties are produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i) : Affirmative.
Point No.(ii) & (iii): As per the final order.
REASONS
5. POINTS NO. (i) to (iii):
From the out set of the oral as well as documentary evidence available on the file of this Forum, it is admitted that, the Complainant had purchased GODREJ: AC SPLIT GSC18FP3 WIZ (1.5 TON, 3 STAR, FLAT) as per Tax invoice dated:13.3.2010 from the 2nd Opposite Party as per Ex.C1. The above said Air Conditioner has warranty for Five years on compressor and one year warranty on all other parts from the date of purchase against defective material or workmanship. In case of any such defect found during first year from the date of purchase, Godrej and Boyce Manufacturing Company Limited will undertake repairs to the warranted part free of charge. In the warranty period beyond the first year from the date of purchase, only the compressor will be provided free of cost. The Air Conditioner will be repaired on payment of necessary charges.
Now allegation of the Complainant is that, on 13.3.2010 the above said Air Conditioner was purchased by him but the said Air conditioner is not working since from the date of installation nor cooling, the same has been brought to the notice of the Opposite Party No.2, even after several service from the Godrej Service Centre, the Air Conditioner is still not working and contended that the Air Conditioner is defective. Hence, came up with this complaint.
On the contrary, the Opposite Party No.1 who is the manufacturer contended that there is no manufacturing defect and they are not liable for the relief sought by the Complainant. Opposite Party No.2 who is a dealer placed exparte in this case.
However, in support of the Complaint, the Complainant filed chief examination by way of affidavit and produced Ex.C1 to C8 in support of his complaint. The Opposite Party No.1 also filed affidavit.
On scrutiny of the oral as well as documentary evidence available on record, we find that, the above said Air Conditioner admittedly purchased on 13.3.2010 from the 2nd Opposite Party by paying Rs.23,350/- i.e. as per Ex.C1. The Ex.C2 is the warranty card issued by the Opposite Parties reveals that the said Air Conditioner has a warranty for five years on compressor and one year warranty on all other parts from the date of purchase against defective material or workmanship. The Ex.C3 i.e. work order dated 22.4.2010 issued by the Opposite Party reveals that the Air Conditioner is not working PCB is defective. The Ex.C4 i.e. work order dated 13.5.2010 issued by the Opposite Party again reveals that the Air Conditioner is not working PCB is defective. The Ex.C5 is the one more work order dated 18.5.2010 issued by the Opposite Party further reveals that, the Air Conditioner is not working PCB replaced by the Opposite Party. The Ex.C7 i.e. the Registered notice dated:7.5.2010 issued by the Complainant to the Opposite Parties reveals that the Air Conditioner is not working nor cooling and the Opposite Parties not repaired the Air Conditioner even after registering the complaint on 13.4.2010 till date and also stated the attitude of the dealer and the service of the company towards the customer while handling the complaint. Finally, the Complainant called upon the Opposite Parties that the Air Conditioner sold by them has manufacturing defect and as a result of poor workmanship the Air Conditioner is not working and thereby called upon to refund the price of the Air Conditioner. The Ex.C8 is the reply notice dated 11.5.2010 reveals that, the Opposite Parties assured the Complainant by writing a letter that they will take best attention. The above documents clearly reveals that, the Complainant admittedly purchased the Air Conditioner on 13.3.2010, the above documents shows that, the Air Conditioner installed by the Opposite Party is not working since from installation and PCB was replaced as per the record issued by the Opposite Parties. Despite of that, the Air Conditioner is not working and came up with this complaint.
We have noticed that, the Opposite Party No.2 authorized dealer not appeared before the FORA nor denied the allegations alleged in the Complaint by providing contra evidence on record. The Opposite Party No.1 who is a manufacturer though appeared and contested the case but failed to satisfy the FORA that the Air Conditioner manufactured by them was attended and now it is perfectly in working condition. In the absence of the same, we hold that, the service rendered by the Opposite Parties amounts to deficiency and the Air Conditioner manufactured by them is not up to the quality and same is suffering from some defects.
It could be seen on record that, the correspondences between the Opposite Parties further made us very clear that, the Air Conditioner purchased by the Complainant is not working and the service rendered by the Opposite Parties not upto the satisfaction, because there is a delay in attending the complaint of the Complainant. The Ex.C5 i.e. work order dated 18.5.2010 reveals that, the date of complaint shown as 25.3.2010 and PCB was replaced on 18.5.2010, that means after one and half months. Moreover, the above said unit was purchased on 13.3.2010 as stated supra. But on 25.3.2010 the Complainant lodged a complaint stating that the Air conditioner is not working and the same was attended by replacing the PCB on 18.5.2010 shows the service rendered by the Opposite Parties towards the customers. However, the Opposite Parties have received the entire consideration and issued a warranty card. It is a settled position of law that, where stipulation in the contract of sale is a warranty. It’s breach may give raise a claim for damages, but not to a right to reject the goods and treat the contract has repudiated. Where a stipulation in a contract of sale is a condition, its breach may give raise not only to claim damages, but also generally right to treat the contract has repudiated. In the instant case, the defects complained by the Complainant though attended but the problem was continuing till this date. Since, the Complainant purchased the above Air Conditioner on 13.3.2010 i.e., within the warranty period the above said defects were found, despite of making attempt to rectify the same, the Air Conditioner is still not working shows that the Air Conditioner is defective. The warranty card produced by the Complainant clearly reveals that, the machine shall be attended by the authorized personnel of the Opposite Parties. That means, the goods sold by the Opposite Parties are within the control of the Opposite Parties and they ought to have rectified the defects or in case of continuing problem they could have replaced the Air Conditioner with a new one by taking back the defective Air Conditioner unit at the earlier point of time and should not have allowed the Complainant to knock the door of the Consumer FORA. In the instant case, the materials available on record proved that, the Air Conditioner manufactured by the Opposite Party No.1 is not up to the quality and the same is suffering from some defects.
Generally, if the goods has manufacturing defect is to be borne by the manufacturer. That would not mean that, the dealer is absolved from joint and several liabilities. As we know, the manufacturer not deals with the customers directly. Dealer having received the amount, under taken free service and rectify defect during the warranty do not escape liability towards the manufacturing defect found in the goods. As we know, the contract through dealer, privity of contract is with them. To ensure execution expeditiously and immediately, if necessary by making the payment to the Complainant initially and then it will be for the dealer to claim reimbursement from the manufacturer. Therefore, the dealer and the manufacturer both are jointly and severally liable for the defects found in the goods.
The Hon’ble National Commission reported in 2009 (I) CPJ 80 held as under:
“Defect found immediately after purchase, could not be rectified, joint and several liability imposed by the District Forum upheld in appeal holding that dealer having received the amount, undertaken free service and rectify defects during warranty cannot escape liability towards manufacturing defects found in the product”.
Similarly, the above principles observed by the Hon’ble National Commission applicable to the case on hand. In the above circumstances, we hold that, both the Opposite Parties are jointly and severally liable in this case. We further observed that, the complaint of the Complainant is not attended by the service center of the Opposite Party No.1 immediately, that means their service to the customer is not up to the standard. The Opposite Party No.1 who is a dealer, despite of receiving version notice not bothered to appear before the FORA nor taken any responsibility on behalf of his customer herein the Complainant. Under that circumstances, order for replacing the Air Conditioner may not meet the ends of justice. Therefore, we direct the Opposite Parties to refund the entire amount of Rs.23,350/-(Rupees Twenty three thousand three hundred fifty only) by taking back the defective Air Conditioner from the Complainant. Further Rs.5,000/- (Rupees Five thousand only) awarded as compensation for harassment and inconvenience caused to the Complainant and Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Parties are jointly and severally hereby directed to refund the entire amount i.e. Rs.23,350/-(Rupees Twenty three thousand three hundred fifty only) by taking back the defective Air Conditioner. Further Rs.5,000/- (Rupees Five thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 12 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 15th day of November 2010.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri Deepak Raj – Complainant.
Documents produced on behalf of the Complainant:
Ex.C1 – 13.3.2010: Invoice No.11812 of Godrej A.C.
Ex.C2 – 13.3.2010: Warranty of Air Conditioner.
Ex.C3 – 22.4.2010: Work Order No.2937.
Ex.C4 – 13.5.2010: Work Order No.2960.
Ex.C5 – 18.5.2010: Work Order No.2702.
Ex.C6 – 25.5.2010: Paper cutting Udayavani regarding hot whether.
Ex.C7 – 7.5.2010: Notice.
Ex.C8 – 11.5.2010: Reply of Opposite Party to the Complainant.
Witnesses examined on behalf of the Opposite Parties:
Rw-1: Sri.R.Soloman, Branch Commercial Manager of the Opposite Parties.
Documents produced on behalf of the Opposite Parties:
-NIL-
Dated:15.11.2010 PRESIDENT
