F.A.No. 1104 OF 2006 AGAINST C.C.No.644 OF 2005
 DISTRICT FORUM-I HYDERABAD.

Between:

Electronics Service Point
3-6-291/1/A, 1^st Floor,
CPP, Petroleum Pump Lane,
Hyderguda, Hyderabad
                                                          Appellant/opposite party no.2

A N D

1.    Battary Commander 4/2
Training Regiment Artillery Centre
Hyderabad-031, rep. by its authorized
representative, Sri N.K.Kewal Singh
S/o Gurmit Singh, aged about 35 yrs

Respondent/complainant

2.    L.G.Electronics India Private Limited
Regd. Office 702, Bhikaji Cama Bhavan
Bhikaji Cama Place, New Delhi-110066
rep. by its authorized signatory

Present Address:

          Regd. Office 20-A,
          Shivaji Marg, Mothi Nagar,
          New Delhi - 110015

                                                    Respondents/opposite party no.1

Counsel for the appellant                         Mr.V.Gourisankara Rao
Counsel for the respondent  No.1           Representative of R1
Counsel for the respondent No.2            Served

          QUORUM:      SRI SYED ABDULLAH, PRESIDING MEMBER
                                                        &

                              SRI R.LAKSHMINARSIMHA RAO, MEMBER

                        WEDNESDAY THE THIRD DAY OF JUNE                     

                                         TWO THOUSAND NINE

          Oral Order ( As per Sri R.Lakshminarsimha Rao, Member)

***

          The appellant is the opposite party no.2 in C.C.No.644 of 2005 before the District Forum-I Hyderabad. The only grievance as canvassed by the appellant is that in spite of request made by the appellant who claims to be dealer of the opposite party no.1, liability was fixed on them instead of fastening it on the opposite party no.1 to pay a  sum of Rs.90,000/- with interest and costs for selling a defective DLP Projector to the complainant. 

          The facts leading to the filing of the complaint are that the complainant purchased DLP Projector RD-JT31 from the second opposite party which was manufactured by the first opposite party for a consideration of Rs.96,153.85 and ever since it was purchased on 5.3.2004, several technical defects developed and the complainant could not make use of the projector.  The opposite parties promised one year warranty on the projector.  The opposite parties have not rectified the defects, picture problem along with technical defects.  The opposite party no.1, at last had sent their representative, Mohsin to rectify the defects in the projector.  The complainant as required by the opposite parties’ representative, handed over the bill copy to him.  Without checking and carrying out the technical works to bring the projector in order, their representative left the place of the complainant.  After repeated requests of the complainant, the opposite parties’ another representative Salman inspected the DLP Projector but left without doing any repairs.  The DLP Projector supplied by the opposite parties was defective.  The technicians failed to identify the defect in the equipment.  The lamp was not working at all.  The authorized representative of the opposite parties, Raghunath, made correspondence with the complainant.  Hence, the complainant got issued a legal notice dated 16.4.2005.  The opposite party no.2 had not chosen to give any reply.  The notice sent to the opposite party no.1 was returned unserved.  Both the opposite parties committed deficient service.

          Both the opposite parties remained exparte.

          The District Forum passed the impugned order directing the opposite party no.2 to pay an amount of Rs.90,000/- along with interest and costs.  The District Forum dismissed the complaint against the opposite party no.1.

          The point for consideration is whether the order passed by the District Forum is liable to be set aside?

          Both the opposite parties remained absent before the District Forum.  The opposite party no.2 only has challenged the impugned order to the extent of their liability. Even the opposite party no.2 had not challenged the finding of the District Forum that a defective DLP Projector was sold to the complainant.  Since the finding in regard to the fact of sale of defective projector by the opposite parties no.1 and 2 is concerned, it has become final rather it is deemed to be final in the absence of any challenge thereto.  The opposite party no.2 has come in this appeal on the ground that for all the manufacturing defects in the DLP Projector the opposite party no.1 only is liable  to rectify or replace the projector as per the terms of the warranty.  It is the grievance of the opposite party no.2 that for no fault on their part,  the District Forum has fixed the liability on them dismissing the complaint against the opposite party no.1 in spite of the fact that the appellant is only a dealer of the opposite party no.1. 

          The opposite party no.2, admittedly, is the dealer of the opposite party no.1.  The  DLP Projection sold by the opposite partyno.2 and manufactured by the opposite party no.1 was defective.  The opposite party no.2 issued warranty certificate in favour of the complainant for a period of 12 months.  The opposite party no.1 issued certificate Ex.A1 to the effect that the lamp sold by them to the complainant was defective and service could not be rendered to the equipment and as such the opposite partyno.2 requested the opposite party no.1 to replace the lamp with a new lamp.  The opposite party no.2 got addressed a letter Ex.A2 to the opposite party no.1  to replace the projector as it developed technical defects within 800 hours.  Therefore, it can be concluded that both the opposite parties had sold a defective DLP Projector to the complainant.

          Having sold a defective lamp to the complainant the opposite party no.2 shirks its liability on the opposite partyno.1  contending that they are only a dealer of the opposite party no.1 and a dealer cannot be saddled with the liability that was not fastened on the opposite party no.1 who is the manufacturer of the lamp.  As aforesaid, the finding having become final in regard to the fact of sale of defective projector to the complainant, the complainant certainly is entitled the relief prayed for.  We do not want to go into the question of whether the lamp suffered manufacturing defect for the reaons that such finding was allowed to become final by the opposite party no.1 by choosing not to challenge the impugned order and by the opposite party no.2 by not challenging the finding  in the present appeal.  Hence,  the opposite parties are bound to replace the DLP Projector with a new projector.

          Strangely,  the District Forum has dismissed the complaint against the opposite party no.1 who is a manufacturer of the DLP Proejctors without assigning any reason therefor.  When the District Forum has found that there was a manufacturing defect in the DLP Projector which was manufactured by the opposite party no.1 absolutely there was no reason for the District Forum to dismiss the complaint against the opposite party no.1.  This finding holding on the one hand that there was a manufacturing defect in the DLP Projector and on the other hand absolving the opposite party no.1 who is the manufacturer of the equipment of any liability.  Therefore, the finding of the District Forum so far as the dismissal of the complaint against the opposite party no.1 is concerned, is not sustainable and liable to the set aside. 

          Coming to the question of liability of the opposite party no.2, it cannot be said that since the opposite party no.2 only a dealer cannot be fastened with the liability of making refund of the cost of the DLP Projector to the complainant.  The opposite party no.2 is not only a dealer of the opposite party no.1, they are the face and facet of the opposite party no.1 representing opposite party no.1 in all the matters in relation to the sale and delivery of the articles manufactured by the opposite party no.1. The dealer by no means can escape responsibility for the defective products that he sells to their customers. In fact, the apex consumer court as well as the Supreme Court have made it clear that both the manufacturer and the retailer are jointly and severally responsible for the quality of the goods sold to the consumer. If the retailer has any objection to it, he can recover the compensation paid by him from the manufacturer, but as far as the question of liability in regard to the consumer is concerned, he would be equally liable.  It is true that normally such liability with regard to the manufacturing defects is to be borne by the manufacturer. But that would not mean that the dealer is absolved from joint and several liability.   Since the purchase was made through the dealer, the privity of contract was with him. It was therefore incorrect to say that the dealer was not liable.

          In the case of Jose Philip Mampilli Vs. Premier Automobiles Ltd. & Anr. (2004) 2 SCC 278, the Apex Court held that in cases of delivery of defective vehicle the liability to pay the amount is joint and several of the dealer and the manufacturer. No doubt, it was also made clear that in case the dealer pays the amount in the first instance, the same can be recovered by him from the manufacturer.  

          In the circumstances, we hold that there are no merits in the appeal and the same is liable to be dismissed.  The finding of the District Forum in regard to the dismissal of the complaint against the opposite party no.1 is liable to be set aside. 

          In the result,  the appeal is dismissed.  The opposite parties no.1 and 2 are jointly and severally liable to refund the amount of Rs.90,000/- with interest @ 9% per annum from the date of filing of the complaint till payment and also pay Rs.2,000/- towards costs.  Time for compliance four weeks.

                                                                             PRESIDING MEMBER

                                                                                      MEMBER
                                                                                    Dt.03.06.2009