BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
THURSDAY, the 28th day of April, 2016
FIRST APPPEAL No. 17/2015
T.V.Anbalagan, S/o R.T.Velu,
No.15/A, V.O.C.Street,
Koranadu, Mayiladuthurai Town,
Tamilnadu. ……….. Appellant
Vs.
1. M/s Muthu Traders,
No.105, 106, Bharathiar Sreet,
Karaikal.
2. The Dealer,
Naresh Marketing,
Chetty Street, Puducherry. ……….. Respondents
(On appeal against the order passed in C.C.No.68/2009, dt.06.03.2015 of the District Consumer Disputes Redressal Forum, Puducherry)
C.C.No.68/2009
T.V.Anbalagan, S/o R.T.Velu,
No.15/A, V.O.C.Street,
Koranadu, Mayiladuthurai Town,
Tamilnadu. ……….. Complainant
Vs.
1. M/s Muthu Traders,
No.105, 106, Bharathiar Sreet,
Karaikal.
2. The Dealer,
Naresh Marketing,
Chetty Street, Puducherry. ……….. Opposite Parties
BEFORE:
HON’BLE THIRU JUSTICE K.VENKATARAMAN,
PRESIDENT
TMT. K.K.RITHA,
MEMBER
THIRU S.TIROUGNANASSAMBANDANE,
MEMBER
FOR THE APPELLANT:
Mr.S.Vimal, Advocate, Puducherry
FOR THE RESPONDENTS:
1st respondent - Exparte
Mr.S.Ganesh Gnanassambanthan for 2nd respondent.
O R D E R
(By Hon'ble Justice President)
This appeal is directed against the order of the District Forum, Puducherry, dated 06.03.2015 made in Consumer Complaint No.68/2009.
2. The complainant therein is the appellant and the opposite parties are the respondents in this appeal.
3. The appellant has moved the District Consumer Disputes Redressal Forum claiming a sum of Rs.1,600/- towards the cost of cooker with interest; for payment of Rs.50,000/- towards compensation with interest and costs of Rs.3,000/-.
4. The case of the complainant is that he had purchased Bajaj Majestic Rice Cooker for Rs.1,600/- on 01.03.2007. On the date of purchase itself the cooker was malfunctioning and water was gushing out whenever it was put into use. It has been complained to both the respondents to attend to the defect. However, the respondents were dodging. For rectifying the defect, the appellant gave the cooker to the 1st respondent on 17.11.2007 and on the same day, the cooker was handed over to the complainant stating that the said defect was rectified. However, when the appellant put the cooker in use, he found the very same defect. Therefore, the appellant issued lawyer's notice to the respondents on 13.12.2007. After acknowledging the said notice, the 1st respondent sent his representative and took the cooker on 26.12.2007 for rectifying the defect, but, however the same has not been returned. Therefore, the appellant has issued another lawyer's notice, dated 03.01.2008. Though it has been received by the respondents, they have neither chosen to reply nor rectified the defect in the cooker and returned to the complainant. This amounts to deficiency and negligence in service. Therefore, the complaint was laid before the District Forum.
5. The 2nd respondent has filed the reply version setting out the following facts:
All the allegations stated in the complainant are denied. The complaint is neither proper nor maintainable. The manufacturer, namely Bajaj Electricals Limited, is a necessary party. Since the appellant has not impleaded the necessary party, this complaint is liable to dismissed for non-joinder of necessary party. When the appellant gave the cooker to the 1st respondent on 17.11.2007, 1st respondent with the help of service man found that there is no manufacturing defect. The appellant failed to approach the authorized service centre and Consumer Affairs Cell of Bajaj Electricals Limited. After receipt of the legal notice, dated.13.12.2007, 1st respondent met the appellant at his residence along with service technician from Bajaj Service Centre and took the cooker on 26.12.2007 and noticed no defect at all and the said fact was informed to the complainant immediately.
6. Both the respondents are in business for more than 20 years and have a good customer support and goodwill in and around Puducherry region. As a dealer, they never come across such alleged defect in the complaint. The electrical cooker is different from the conventional rice cooker which comes with a rubber casket lining on the inner side of the top cover in which a whistle is fixed to let out the steam. The electric rice cooker does not have a casket and does not have a whistle to let out the steam but instead it has a small hole on the top lid to vent out the steam and excess water due to boiling of rice. The complainant mistook the excess water coming out of the lid when he used the cooker. Absolutely, there is no defect in the cooker purchased by the appellant. Therefore, 2nd respondent in his version sought for the dismissal of the complaint.
7. An additional version was filed by the 2nd respondent in which it has been pleaded that by oversight they mentioned in the reply version that the electrical rice cooker is vested with the service station. In fact, the cooker is with the 1st respondent. The filing of the complaint is intentional and for unjust enrichment. The 2nd respondent prayed for the dismissal of the complaint.
8. On the side of the appellant, Exs.C1 to C7 were marked and no one has been examined as witness. On behalf of the respondents, RWs 1 and 2 have been examined and Exs.R1 to R3 were marked.
9. The District Forum has framed following four points for determination:
1) Whether the complainant is the consumer to the opposite parties?
2) Whether the complaint is bad for non-joinder of manufacturer as
necessary party?
3) Whether the complainant has proved that the cooker purchased
from the first opposite party is defective one?
4) To what relief the complainant is entitled for?
10. As regards first point, it has been found by the District Forum that the appellant is a consumer to the 1st respondent and not a consumer to the 2nd respondent. As regards point No.2, the District Forum found that the complaint is bad for non-joinder of manufacturer as a necessary party. As regards point No.3, the District Forum found that the appellant has not proved that the cooker is a defective one and decided that the complaint is liable to be dismissed and accordingly dismissed the complaint filed by the appellant.
11. As stated earlier, the present appeal is laid against the order of the District Consumer Disputes Redressal Forum.
12. On behalf of the appellant, the learned counsel appearing for the appellant, contended that the cooker that was purchased from the 1st respondent was a defective one and the same has not been rectified, even though on one occasion the service men sent by the 1st respondent tried to rectify the same. Later, when it was handed over to the 1st respondent, it was not returned either rectifying the defect or without rectifying the same. Therefore, according the counsel appearing for the appellant, there is deficiency and negligence in service on the part of the respondents. On the side of the respondents, it has been strenuously contended that without impleading the manufacturer of the cooker, the complaint is not maintainable. In our considered view, leaving open the said question, we have to see that admittedly the cooker was handed over to the 1st respondent which was not returned to the appellant. The 1st respondent should have returned the cooker to the appellant either rectifying the defect pointed out by the appellant or returned the cooker by saying that it has no defect by giving some acceptable reasons. But, unfortunately, the 1st respondent, as stated already has not returned the cooker to the appellant. This is nothing but deficiency and negligence in service on the part of 1st respondent. For the said act of 1st respondent, definitely 1st respondent has to pay compensation to the appellant.
13. As regards the 2nd respondent, no acceptable materials have been placed before us to fasten the liability on the 2nd respondent. In fact, 2nd respondent was willing to hand over a new cooker to the appellant and the same has been brought before this Commission by 2nd respondent. However, the appellant refused to take the said cooker. That will not however, absolve the liability of 1st respondent for the reasons set out earlier.
14. Considering the above aspects, we are of the view that 1st respondent has to return the value of the cooker, namely, the sum of Rs.1,600/- with interest at 9% p.a. from the date of purchase of cooker till the date of payment. Further, 1st respondent has to pay Rs.10,000/- to the appellant for the mental agony caused to him besides making the appellant to run pillar to post. As far as cost is concerned, the 1st respondent has to pay a sum of Rs.3,000/- to the appellant for making the appellant to approach the Consumer Forum and engaging a counsel to contest his case.. Thus, we hold that the 1st respondent is liable for deficiency and negligence in service and liable to pay the aforesaid sum. As far as 2nd respondent is concerned, we hold that it is not liable to pay any compensation since there is no deficiency or negligence in service on its part.
15. In fine, the order of the District Forum referred to above is set-aside and the appeal is allowed to the extent indicated above.
Dated this the 28th day of April, 2016.
(Justice. K.VENKATARAMAN)
PRESIDENT
(K.K.RITHA)
MEMBER
(S.TIROUGNANASSAMBANDANE)
MEMBER
