Versus
- Lalit Mourya authorized person/Manager/Owner of M/s. Orwal Soap, situated at #133, Paldi Meena, Agra Road, Jaipur-302012.
- M/s. JM KNITWEARS, 1133/33/2-A Bank Colony, Shiv Puri Road, Opposite Maggu Department Store, Ludhiana-14008. …..Opposite parties
Complaint Under Section 35 of the Consumer Protection Act, 2019.
QUORUM:
SH. SANJEEV BATRA, PRESIDENT
SH. JASWINDER SINGH, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : Sh. Sandeep Vaid, Advocate.
For OPs : Exparte.
ORDER
PER SANJEEV BATRA, PRESIDENT
1. In nutshell, the facts of the complaint are that the complainant purchased Orwal washing soap vide invoice bearing No.41 dated 14.02.2022 for a price of Rs.88.50 inclusive of GST from opposite party No.2. According to the complainant, when she started using the product and washed the clothes, the clothes got decoloured and she also suffered pimples on her hands, resulting in financial loss and physical pain and discomfort. Further the complainant served legal notice to opposite party No.2 asking him to compensate the value of the soap along with interest and compensation but the opposite parties did not respond. The complainant further alleged the defect in the product and deficiency in services and claimed the purchase price of Rs.75/- excluding GST along with interest @18% per annum from the date of purchase till actual realization and also claimed compensation to the tune of Rs.1,00,000/- on account of physical pain and mental agony. Hence the present complaint.
2. Notice of the complainant was issued to the opposite parties but the opposite parties did not appear despite service and this Commission vide order dated 06.07.2022 proceeded both the opposite parties as exparte
3. In support of her claim, the complainant tendered her affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. Along with the affidavit, the complainant also tendered Ex. C1 legal notice dated 22.02.2022 in which she sought the refund of value of the product and compensation from the opposite parties, Ex. C2 and Ex. C3 are the postal receipts, Ex. C4 is the invoice dated 14.02.2022 whereby the complainant purportedly purchased the soap, Ex. C5 to Ex. C7 are the photographs of the clothes and closed the evidence.
4. We have heard the arguments of the counsel for the complainant and perused the record carefully.
5. The counsel for the complainant has contended that the complainant is a lady of 57 years of age and purchased the soap considering it to be of good quality and which will not cause any harm to her body or the clothes. The counsel for the complainant has further contended that there is an implied warranty with regard to the quality and usage of the product. Further the usage of the product has resulted irritation on her hands and also spoiled her clothes and as such, the complainant is entitled to the reliefs claimed for.
6. We have weighed the contentions raised by the counsel for the complainant and gone through the record.
7. A product liability action can be brought by any consumer against the product manufacturer and a product seller for any harm caused to him/her on account of the defective product. Section 84 of the Consumer Protection Act provides for the liability of a product manufacturer, which is reproduced as under:
“84. Liability of product manufacturer: (1) A product manufacturer shall be liable in a product liability action, if
the product contains a manufacturing defect; or
- the product is defective in design; or
- there is a deviation from manufacturing specifications; or
- the product fails to contain adequate instructions of correct usage to prevent any harm or any warning regarding improper or incorrect usage.
(2) A product manufacturer shall be liable in a product liability action even if he proves that he was not negligent or fraudulent in making the express warranty of a product.
Section 86 of the Act also provides the liability of product seller, which is reproduced as under:-
86. Liability of product sellers. A product seller who is not a product manufacturer shall be liable in a product liability action, if
(a) he has exercised substantial control over the designing, testing, manufacturing, packaging or labeling of a product that caused harm; or
(b) he has altered or modified the product and such alteration or modification was the substantial factor in causing the harm; or
(c) he has made an express warranty of a product independent or any express warranty made by a manufacturer and such product failed to conform to the express warranty made by the product seller which caused the harm; or
(d) the product has been sold by him and the identity of product manufacturer of such product is not known, or if known, the service of notice or process or warrant cannot be effected on him or he is not subject to the law which is in force in India or the order, if any, passed or to be passed cannot been forced against him; or
(e) he failed to exercise reasonable care in assembling, inspecting or maintaining such product or he did not pass on the warnings or instructions of the product manufacturer regarding the dangers involved or proper usage of the product while selling such product and such failure was the proximate cause of the harm.
8. In order to prove her case and to bring within the ambit of the aforesaid sections, the complainant was required to adduce cogent and convincing evidence regarding the harm caused to her. The complainant did not produce any evidence in the form of any medical treatment or prescription showing that when she used the washing soap, she not only suffered irritation, pain on her hands but clothes were got faded. However, clothes were not produced for inspection of the Commission at the time of filing the complaint or at the time of leading evidence in this regard. Even no independent evidence has been lead to show that it is due to the usage of that very soap which was purchased from opposite party No.2 was causing harm to her and the clothes. As such, the complainant fails to prove that the product so purchased by her was defective one or that she is entitled to refund of price or compensation as claimed in the complaint.
9. As a result of above discussion, the complaint fails and the same is hereby dismissed. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
10. Due to huge pendency of cases, the complaint could not be decided within statutory period.
(Jaswinder Singh) (Sanjeev Batra)
Member President
Announced in Open Commission.
Dated:10.11.2022.
Gobind Ram.
Amarjit Vs Lalit Mourya CC/22/104
Present: Sh. Sandeep Vaid, Advocate for complainant.
OPs exparte.
Arguments heard. Vide separate detailed order of today, the complaint has been dismissed. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
(Jaswinder Singh) (Sanjeev Batra)
Member President
Announced in Open Commission.
Dated:10.11.2022.
Gobind Ram.
