F I N A L     O R D E R

Order Dated:- 05.07.2024

       An application has been filed by the Complainant U/S-35 of the C.P. Act, 2019,against the O.Ps for supplying of defective goods/ sanitary goods, i.e commode cum flushing system( cistern) along with other associated goods (Jaquar Brand), which has been installed at the premises( Bathroom cum toilet) of the Complainant, and the cost of the goods so supplied was amounting to Rs.25,000/( Rupees Twenty Five thousand only) and therefore, the Complainant files this Complaint praying for either repair of the same or replace the goods with a new defect free one of the same make and model and also for awarding compensation to the tune of Rs.50,000/( Rupees Fifty Thousand Only)for causing mental pain, sufferings, harassment and pecuniary loss etc and further claimed cost of the proceeding to the tune of Rs. 25,000/    ( Rupees Twenty Five thousand only)  or, in the alternative, if the O.Ps fail to repair or replace, then refund the price to the tune of Rs.25,000/( Rupees Twenty Five Thousand Only) to the Complainant along with compensation and cost of the proceedings as stated above.

       The brief fact of the case of the Complainant is that he is a consumer under the O.Ps as per the definition of “Consumer” as provided u/s 2(7) of the C.P.Act,2019 and the O.P No: 1 & 2  are the service providers towards the complainant and the dispute is a consumer dispute as provided u/s- 2(8) of the said Act.  It is stated by him that the O.P No:1 is the seller/dealer of Jaquar Brand items, having its business house at the above noted address at Siliguri, Dist:- Darjeeling and carrying out business activities from that place and the O.P No:2 is the Manufacturer of Jaquar Brand items having its head office  at the above noted address at Gurgaon, as mentioned in details in the cause title of the case.

      It is further stated by the Complainant that on 05.08.2021 he has purchased one sanitary item/ commode cum flushing system (cistern) along with associated goods (Jaquar Brand), amounting to Rs. 25,000/  ( Rupees Twenty Five Thousand only), from the O.P No:1, which has been installed at the bathroom/washroom within the residential house of the complainant  and since after such installation, the system is not working properly and water is continuously coming out/ leaking from the system and as a result of which the Complainant and his family Members cannot use the system properly and due to the leakage of water the bathroom along with the building is damaging and the Complainant has reported the same to the O.P No:1 immediately for doing the needful and to cure the defects and remove the difficulties and one of the representatives of the O.P No:1 assured that the matter would be immediately taken care of and after a fortnight of such purchase one mechanic came to the premises of the Complainant and he applied some adhesive in order to solve the problem but the problem again started and water is continuously leaking from the system. The Complainant again informed the matter to the O.P No:1, but the O.P No:1 did not take any initiative for repairing the sanitary system or made any response to the Complainant.

       It is further stated by the Complainant that he has purchased some other materials/ sanitary goods, apart from the commode cum flushing system ( Cistern) from the O.P No:1 and the Complainant has retuned some excess materials/unused goods to the O.P No:1 and at the time of such returning/exchange, the O.P No:1 very cunningly, purposefully and intentionally took away the purchase memo/ money receipt of the commode cum flushing system ( Cistern), Jaquar Brand from the Complainant and at present the Original Purchase Memo/ Money receipt of the goods purchased is lying with the O.P No:1 and as such the Complainant cannot produce the same.

      It is further stated by the Complainant that the problem in the commode cum flushing system (cistern) is persisting since its purchase and the Complainant time and again requested the O.P No:1 to repair the sanitary system, but the O.P No:1 is negligent, apathetic, uncaring and indifferent and no proper post care service has been provided to the Complainant, though the product is under the coverage of warranty. The Complainant and his family Members are suffering tremendously and they cannot use the toilet/ washroom/ commode cum flushing system (cistern) and the Complainant repeatedly requested the O.P No:1 to repair the same to the O.P No:1, but the O.P No:1 did not pay any heed to and turned deaf ear to the Complainant.  The bathroom/ toilet of the Complainant and its floor and side walls have been damaged due to continuous flow of water from the commode cum cistern and the building of the Complainant is also getting damaged due to water leakage/seepage.

        It is further stated by the Complainant that he has made a complaint to the O.P No:1 on 15.03.2023 and further has sent a letter to the O.P No:1 on 09.05.2023 by post and also informed the matter to the toll free number of the Company, but the problem of the Complainant has not been addressed. The O.P No:1 after receiving the letter flatly denied to repair the goods and further stated in very harsh words over phone in Hindi.

        The Complainant thereafter has sent a lawyer’s notice to both the O.Ps on 30.06.2023 through his Lawyer Sri. Anand Verma and thereafter one person of the O.Ps visited the premises of the Complainant and inspected the commode cum flushing system (cistern) and repaired the cistern and provided a ‘service job card’ to the Complainant. But the problem of water seepage is still persisting and the Complainant and his family members cannot use the commode cum flushing system (cistern) and as a result of which the complainant is under tremendous mental trauma and has been suffering from mental agony, pain, pecuniary loss etc.  and both the O.Ps are liable for such mental agony, pain, pecuniary loss etc. and the complainant is entitled to get proper compensation from the O.Ps as prayed in the petition of Complaint. 

      It is further stated by the Complainant that he has requested both the O.Ps to repair the commode cum flushing system (cistern) and time and again informed them either personally or over phone to the O.P No:1 and also informed the O.P No:2 over the toll free number, but the O.Ps did not bother to solve the problem of the Complainant. Thereafter, the Complainant has sent a letter to the O.P No:1 and ultimately has sent a lawyer’s notice, but the problem of the Complainant has not been sorted out/ redressed by the Opposite Parties and both the O.Ps are negligent and acted as unsympathetic, indifferent, uncaring  and apathetic in nature towards the Complainant and they did not provide any sort of post care service to the Complainant and as such both the Opposite Parties are deficient in proving service to the Complainant.  The commode cum flushing system (cistern)/ goods bought by the Complainant is defective and needs to be replaced, but the O.P No:1 denied to do it lastly on 15.07.2023. The O.P No:2 was silent about it.  Finding no other alternative, the Complainant is constrained to file this Complaint before this Commission for proper reliefs as prayed in the petition of Complaint.

Reliefs Sought for by the Complainant:-

 The Complainant has prayed that direction/s be issued against                            the O.P No: 1 & 2:-

i)To repair the commode cum flushing system (cistern), Jaquar Brand of the Complainant, which has been installed at the toilet/bathroom/washroom of the Complainant in his residential house, or

ii) To replace the commode cum flushing system (cistern), Jaquar Brand of a new one of the same make and model and install the same at the bathroom/toilet/washroom of the Complainant in his residential house.

iii) To pay compensation to the tune of Rs.50,000/ to the Complainant for causing mental pain, sufferings, harassment, pecuniary loss, deficiency in service etc.

iv) To pay cost of the proceeding to the Complainant to the tune of Rs.25,000/.

v) To grant and award other relief or reliefs in favour of the Complainant which the complainant is entitled to get as per law and equity.

OR,  In the Alternative,

 i)  If the O.P No: 1 & 2 fail to Repair the said commode cum flushing system (cistern), Jaquar Brand of the Complainant or fail to Replace it with a new one of the same make and model, a direction be given to the O.P No:1 & 2 to make refund of the price of the said commode cum flushing system (cistern), Jaquar Brand, to the tune of Rs.25,000/ to the Complainant.

ii) To pay compensation to the tune of Rs.50,000/ to   the Complainant for harassment, pecuniary loss, deficiency in service  etc.

iii) To pay cost of the proceeding to the Complainant to the tune of Rs.25,000/.

iv) To grant and award other relief or reliefs in favour of the Complainant which the Complainant is entitled to get as per law and equity. The Complainant has filed the following Documents in order to prove his case:-

1. Copy of Warranty Certificate.

2. Copy of letter of the Complainant dated 09.05.2023.

3. Copy of Advocate’s Letter dated 30.06.2023.

4. Copy of Service Job card.

      The Complainant has filed another petition for accord permission for filing the case U/S- 34(2)(b) of the C.P.Act,2019 and the same was granted to him. Further, he has filed one petition for condonation of delay U/S-69 of the C.P.Act,2019 and after hearing the said petition was also allowed.

       Notices were sent to the Opposite Parties from this Commission and both the O.Ps entered appearance in the case, but they did not file Written Version within the statutory period of time as per the time limit provided in the statute and therefore, the case has been proceeded ex-parte against the Opposite Parties. It is to be mentioned that the O.Ps have filed one W/V on 03.11.2023 which was not accepted by this Commission. Again, the O.Ps have filed another W/V before this Commission, but it was also not accepted by this Commission due to lapse of time and a detailed order has been passed in M.A- 10 of 2023.The Complainant has filed several M.A applications, which have been disposed of in favour of him.

       Further, in terms of order of M.A- 12 of 2023, one expert report has been filed by the expert plumber on 18.06.2024, which is lying with the case record and the same was accepted on 28.06.2024.

       During hearing, the Complainant has filed Written Affidavit-in- Chief for himself and one Expert as P.W-1 and P.W-2 respectively. He has filed one application for adopting his Complaint petition as well as his evidence as B.N.A and this Commission has allowed his petition and it is treated as Written Argument on behalf of the Complainant.       Now, from the Complaint Petition, evidence adduced by the Complainant and other materials on record, the following points are framed:-

Points for Consideration:-

1.  Is the Complainant a Consumer?

2.  Are the O.Ps negligent and deficient-in providing service towards the Complainant?

3.  Is the Complainant entitled to get any relief as prayed for?

                               DECISION   WITH   REASONS

      All the points are taken together for the sake of brevity, convenience for discussion and also for avoiding repetition of facts.

      It is evident from the evidence of the Complainant ( deposed as P.W-1)and other materials on record that the Complainant on 05.08.2021 has purchased one sanitary item/ commode cum flushing system (cistern) along with associated goods (Jaquar Brand), amounting to Rs. 25,000/  ( Rupees Twenty Five Thousand only), from the O.P No:1, which has been installed at the bathroom/washroom within the residential house of the complainant and since after such installation the system is not working properly and water is continuously coming out/ leaking from the system and as a result of which the Complainant and his family Members cannot use the system properly and due to the leakage of water the bathroom along with the building is damaging and the Complainant has reported the same to the O.P No:1 immediately for doing the needful and to cure the defects and remove the difficulties and one of the representatives of the O.P No:1 assured that the matter would be immediately taken care of and after a fortnight of such purchase one        mechanic came to the premises of the Complainant and he applied some adhesive in order to solve the problem but the problem again started and water is continuously leaking from the system. The Complainant again informed the matter to the O.P No:1, but the O.P No:1 did not take any initiative for repair the sanitary system or made any response to the Complainant. The O.P No:- 2 is the Manufacturer of Jaquar Brand items having its head office  at the above noted address at Gurgaon, and it is also did not take any initiative after receiving the Advocate notice, dated 30.06.2023.

      Therefore, in our view the Complainant is a Consumer under the O.Ps, in terms of the definition provided as “ Consumer” Under Sec-2(7) of the Consumer Protection Act, 2019 and the O.P No: 1 & 2  are the service providers towards the complainant and the dispute is a consumer dispute as provided u/s- 2(8) of the said Act. 

      Now, in order to ascertain whether the O.Ps were deficient or not, we have to delve into the evidences of the Complainant once again.

      It is seen from the evidence of the Complainant( deposed as P.W-1) that the Complainant on 05.08.2021 has purchased one sanitary item/ commode cum flushing system (cistern) along with associated goods (Jaquar Brand), amounting to Rs. 25,000/  ( Rupees Twenty Five Thousand only), from the O.P No:1, which has been installed at the bathroom/washroom within the residential house of the complainant and since after such installation the system is not working properly and water is continuously coming out/ leaking from the system and as a result of which the Complainant and his family Members cannot use the system properly and due to the leakage of water the bathroom along with the building is damaging and the Complainant has reported the same to the O.P No:1 immediately for doing the needful and to cure the defects and remove the difficulties and one of        the representatives of the O.P No:1 assured that the matter would be immediately taken care of and after a fortnight of such purchase one mechanic came to the premises of the Complainant and he applied some adhesive in order to solve the problem but the problem again started and water is continuously leaking from the system.

       It is further seen from the evidence of the Complainant( deposed as P.W-1) that he has purchased some other materials/ sanitary goods, apart from the commode cum flushing system ( Cistern) from the O.P No:1 and the Complainant has retuned some excess materials/unused goods to the O.P No:1 and at the time of such returning/exchange, the O.P No:1 very cunningly, purposefully and intentionally took away the purchase memo/ money receipt of the commode cum flushing system ( Cistern), Jaquar Brand from the Complainant and at present the Original Purchase Memo/ Money receipt of the goods purchased is lying with the O.P No:1 and as such the Complainant cannot produce the same.

      It is further seen from the evidence of the Complainant (deposed as P.W-1) that the problem in the commode cum flushing system (cistern) is persisting since its purchase and the Complainant time and again requested the O.P No:1 to repair the sanitary system, but the O.P No:1 is negligent, apathetic, uncaring and indifferent and no proper post care service has been provided to the Complainant, though the product is under the coverage of warranty. The Complainant and his family Members are suffering tremendously and they cannot use the toilet/ washroom/ commode cum flushing system (cistern) and the Complainant repeatedly requested the O.P No:1 to repair the same, but the O.P No:1 did not pay any heed to and turned deaf ear to the Complainant.The bathroom/ toilet of the Complainant and its floor and side walls have been damaged due to        continuous flow of water from the commode cum cistern and the building of the Complainant is also getting damaged due to water leakage/seepage.

        It is further seen from the evidence of the Complainant ( deposed as P.W-1) that he has made a complaint to the O.P No:1 on 15.03.2023 and further has sent a letter to the O.P No:1 on 09.05.2023 by post and also informed the matter to the toll free number of the Company, but the problem of the Complainant has not been addressed. The O.P No:1 after receiving the letter flatly denied to repair the goods and further stated in very harsh words over phone in Hindi.

        The Complainant thereafter has sent a lawyer’s notice to both the O.Ps on 30.06.2023 through his Lawyer Sri. Anand Verma and thereafter one person of the O.Ps visited the premises of the Complainant and inspected the commode cum flushing system (cistern) and repaired the cistern and provided a ‘service job card’ to the Complainant. But the problem of water seepage is still persisting and the Complainant and his family members cannot use the commode cum flushing system (cistern) and as a result of which the complainant is under tremendous mental trauma and has been suffering from mental agony, pain, pecuniary loss etc. The O.P No:-2 did not do anything. No post sale service has been provided to the Complainant.

      Further, it is seen from the evidence of the Expert ( deposed as P.W-2) and his expert report dated 18.06.2024 that the commode cum cistern/ flushing system( Jaquar Brand) fitted in the Bathroom of the Complainant is not working properly and he has found some mechanical defects inside the system as a result of which the water is continuously coming out and ultimately he opined that the product is defective and beyond repairable. We have perused the expert’s report, filed on 18.06.2024 and from the case record it is seen that       the said report has been accepted by this Commission on 28.06.2024. There is no reason to disbelieve the expert report filed before this Commission by the expert concerned, dated 18.06.2024.

       Further, it is the settled proposition of law that in case of any manufacturing or mechanical defect of any product, the opinion of the expert is a must and the expert concerned must be examined.

        In a case titled as Amar Kumar Saraswat Vs M/S Volkswagon Group Sales India Pvt. Ltd & Anr, Reported in 2020(3) C.P.R-180(N.C), it has been held by the Hon’ble National Commission that “manufacturing defect of car has to be proved by tendering expert opinion by the Complainant”.

      Further, in a case titled as M/S Sanwaliya Tractor Sales & Service & Anr Vs Bhagawati Devi Bhatt & Ors, Reported in 2020(3) C.P.R-3( N.C), the  Hon’ble National Commission was pleased to hold the view that “expert must be examined by Complainant to prove that tractor suffered from any manufacturing defect or other defects”.

      Considering the entire gamut of evidences adduced by the Complainant and the expert concerned, deposed as P.W-1 & P.W-2 respectively and having due consideration upon the expert opinion and other materials on record, we are of the considered view that both the O.Ps were negligent and deficient in providing service to the Complainant and further, the goods i.e commode cum flushing system of Jaquar Brand, supplied to the Complainant was a defective one and it is beyond repairable and as such both the O.P No: 1 & 2 are jointly liable, either to replace the goods with a new one of the same make and model within the specified period of time as stated in the ordering portion here in below along with compensation and litigation cost, as determined here under, or in the alternative, make refund of the price of the goods , i.e Rs.25,000/ ( Rupees Twenty Five Thousand only)       together with compensation and litigation cost as stated here in below within the time frame as mentioned in the order. As the product is beyond repairable, as opined by the expert concerned, no order for repairing of the product is passed. Further, as the goods supplied to the Complainant is defective and beyond repairable since its installation the O.Ps are liable to pay back the entire purchase amount of Rs.25,000/( Rupees Twenty Five Thousand Only) to the Complainant  and therefore we do not consider any depreciated value of the goods.

      Now in order to ascertain the quantum of compensation and litigation cost, we have gone through the evidence of the Complainant and the Expert concerned, deposed as P.W-1 & P.W-2 respectively once again and also perused minutely the case record and considering the nature and gravity of the case, problem faced by the Complainant, i.e mental pain, agony, pecuniary loss, sufferings etc., we quantify an amount of Rs.15,000/( Rupees Fifteen Thousand only) as compensation and Rs. 7,000/( Rupees Seven Thousand Only) towards cost of the Proceedings, which we think is just and proper in order to mitigate the sufferings of the Complainant and both the O.Ps are jointly liable to pay the same to the Complainant.

       Further, while assessing and determining the quantum of compensation, we have kept in our mind that the commode cum flushing system is required to be replaced and the Complainant has to incur expenses for new installation. The Complainant has to return the old one to the O.Ps, in case the goods are replaced. Further, in such a case, the expenditure for the purpose of bringing the new one and taking away the old one, i.e the transportation charges shall have to be borne by the O.Ps.

       Further, while assessing and determining the cost of proceedings, we have kept in our mind that the Complainant has conducted the case by his own and for that purpose he has to incur expenses towards drafting, printing, copying etc and he has to appear on each and every date in the Commission and for that reason he could not concentrate in his business. Apart from that he had to make payment to the Expert concerned for expert opinion. 

      Now, from the above discussion, we are of the view that the Complainant is able to prove his case and the evidences adduced by him are convincing, reliable and trustworthy. The unchallenged testimony of the Complainant proves his case. The case of the Complainant is, thus proved. Both the O.Ps( O.P No:1 & O.P No:2)  are jointly liable to redress the Complainant as per the following order.

 All the points have been elaborately discussed and disposed of in favour of the Complainant.

Hence,

it is ordered that,

      The Consumer Complaint, being No: C.C- 06 of 2023 is allowed ex-parte against the O.P No:1 & 2, but in part.

       The O.P No:1 & 2, are jointly and severally, directed to replace the commode cum flushing system( Cistern) of Jaquar Brand, which has been purchased by the Complainant from O.P No:1 and installed at the bathroom/toilet/washroom in the residential house of the Complainant and which is a defective item lying thereon, with a same make and model of the Jaquar Brand and hand it over to the Complainant within 60 days from the date of this order.

       In such a case, the expenses required for fresh installation shall be borne by the Complainant only. The Complainant is directed to return the existing defective commode cum flushing system ( Cistern) of Jaquar Brand to either of the O.Ps after receiving the new product and after dis-installation/removal of the existing system.

      Be it mentioned that, the transportation charges for bringing the new product to the premises of the Complainant and taking away the old one from the premises of the Complainant for to and fro journey shall be borne by the O.Ps only.

      Further, the O.P No:1 & 2 are, jointly and severally, directed to pay compensation to the tune of Rs. 15,000/ ( Rupees Fifteen Thousand only) and cost of the proceedings to the tune of Rs.7,000/( Rupees Seven Thousand only), totaling Rs.22,000/( Rupees Twenty Two Thousand Only) to the Complainant within the aforesaid period of 60 days, which shall be counted from the date of this order, failing which the entire amount /defaulted amount shall carry an interest @ 6% p.a, which shall be computed from the 61th day from this day of order till the date of realization.

      In the alternative, the O.P No:1 & 2, are jointly or severally, directed to refund an amount of Rs.25,000/( Rupees Twenty Five Thousand only) as cost of the goods purchased, to the Complainant within the aforesaid period of 60 days from the date of this order, in default, the above amount shall carry an interest @ 6% p.a, which shall be calculated from the 61th day from this day of order till the date of realization.

       In such a case, the Complainant is directed to return the old existing commode cum flushing system to the O.Ps, after receiving the money from the O.Ps, as aforesaid. The cost of installation of a new one and removal of the system shall be borne by the Complainant only.        Be it mentioned that, the transportation charges for taking away the old one from the premises of the Complainant, after paying off the refund amount, as aforesaid to the Complainant, shall be borne by the O.Ps only.

       Further, it is to be cleared that in case the O.Ps prefer to make refund of the purchase amount of Rs.25,000/ to the Complainant, within the period as mentioned herein above, the O.Ps ( O.P No: 1 & 2) have to pay the Compensation and litigation charges also, as aforesaid within the time frame as mentioned hereinabove( 60 days), in default the entire amount i.e Rs. 25,000/+ Rs.15,000/ + Rs.7,000/= Rs. 47,000/ or the  defaulted amount, shall carry an interest @6%p.a, which shall be reckoned from the date of this order, till the date of  realization.

       In default of the entire order or any part of the order by the O.Ps, the Complainant is at liberty to put this order into execution after filing an Execution Application, as per the provision of the C.P.Act,2019 and the Rules made there under.

      Let free copies of this final order be given to each of the parties as per the provision of Regulation-21 of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020.