Judgment : Dt.24.8.2017
Shri S.K. Verma, President
This is a complaint made by Somenath Das, 17/A, Aswini Nagar, P.O.- Regent Park, P.S.-Jadavpur, Kolkata-700 040 against – (1) M/s Panasonic India Pvt. Ltd., “SPIC BUILDING” Annexe, 6th fl., 88, Mount Road, Guindy, Chennai-600 032, OP No.1 and (2) M/s Great Eastern Appliances Pvt. Ltd., 41-C, Netaji Subhas Chandra Bose Rd., P.S.-Regent Park, P.O.-Regent Park, Kolkata-700 040, OP No.2 and (3) Bajaj Finance Ltd., 1201, 12th fl., Infinity Bench Mark, Plot G01, E.P. & G.P.Sector-5, Salt Lake near RDB Cinema Hall, S.D.F.More, Kolkata-700 091, OP No.3, praying for replacing the defective split A.C. by a new one, alternatively to return the purchase amount of Rs.35,700/- to the Complainant and for compensation of Rs.2,00,000/- and litigation cost of Rs.10,000/-.
Facts in brief are that OP No.1 is a manufacturer of split A.C. and OP No.2 is an authorized distributor of OP No.1, proforma OP No.3 is a financial company carrying one business of financial assistance. Complainant is a patient suffering from severe disorders and was compelled to purchase A.C. for lwhich he made payment of Rs.5,000/- on 16.4.2016 and further paid Rs.5,000/- on 17.4.2016 against the total purchased money of Rs.35,700/-. After adjusting the payment of Rs.10,000/- Complainant agreed to pay the balance Rs.25,700/- in EMI of Rs.1,836/- to OP No.3 and Complainant continued EMI without break. Complainant was provided with a warranty certificate on 17.4.2016. A.C. was installed, but, since installation it did not work. Complainant contacted OP No.2 on several occasions but no fruitful result could be achieved. On 20.8.2016 one person, claiming to be a technical person, examined the A.C. and Complainant signed the job sheet but again since 21.8.2016 the A.C. did not work. On this Complainant issued a letter to OP No.2 on 24.8.2016. Complainant was denied for any services from OP No.2. Complainant did not get response of the letter. So, Complainant filed this case.
OP No.3 filed written version and has stated that he has nothing to do with service deficiency or the manufacturing defects. OP No.2 filed written version and denied all the allegations. Further, this OP has stated that Complaint is not covered under C.P.Act but OP No.2 has admitted that Complainant purchased A.C. Machine at a price of Rs.35,700/- and paid Rs.10,000/- in cash and balance though Bajaj Finance Ltd. company was full satisfied with the demonstration given by OP No.2. OP No.2 has further submitted that it being the dealer and not the manufacturing has any liability regarding the replacement of the A.C. Machine excepting showing the service centre. Only manufacturer is liable for manufacturing defects. In addition, OP has denied and prayed for dismissal of this complaint.
OP No.1 has also filed written version and denied the allegations of the complaint. Further, this OP has stated that all the allegations are baseless and false. This OP has specifically denied the allegations and prayed for dismissal of the complaint.
Decision with reasons
Complainant filed a petition praying for treating the contents of Complaint as affidavit-in-chief and the prayer was allowed.
OP No.1 filed questionnaire against this OP No.3 and OP No.2 also filed questionnaire. Complainant replied to the questionnaires. OP No.2 files evidence for proving the allegations of written version. Other OP also filed evidence. To this Complainant filed questionnaire and OPs files reply.
Main point of determination is whether Complainant is entitled to the reliefs as prayed for.
First prayer of the Complainant is replacement of the defective A.C. by a new one. In this regard, there is no dispute that Complainant purchased the A.C. by paying Rs.35,700/- either in cash or through finance company and the same did not work properly for which Complainant made several complaints. But, defects could not be corrected and Complainant suffered for about eight months after which he was compelled to file this complaint.
Ld. Advocate for OP No.2 referred certain decisions reported in 2016(4) CPR 206(NC) which relates to manufacturing defects of a vehicle. Ld. Advocate further attempted to impress upon the Forum that his client being the dealer has no liability if at all there is manufacturing defect. Further, Ld. Advocat e referred another case reported in (2000) 10 Supreme Court Case 654 where also Hon’ble Court directed Appellants to comply with the State Commission’s order for refund of money along with interest, compensation and costs.
In the present case no argument was made on behalf of OP No.1, so, the picture emerges that OP No.2 being the authorized dealer intends to avoid his liability by referring these two decisions which do not appear to be in consonance with the observations made by the Hon’ble Judges in the above mentioned decisions.
We as judges of the District Consumer Forum are expected to deal with the ground realities where a consumer suffers and dealers sell the product, accept money both for the manufacturer and for themselves. They run their business on the basis of payment received from the consumers and so they do not have right to avoid liability. The reality is that a person buys a product for either necessity or for relief and pays the money to the dealer and not to the manufacturer. If there is any manufacturing defect, it was the duty of the dealer to examine the product at the initial stage and refused to accept it for selling it to the consumers. If a dealer fails to do this, it takes liability of running its business under unfair trade practice and in such circumstances, the dealer is bound to make contact with the manufacturer and resolve the dispute raised by the consumer who pays the money to the dealer and not to the manufacturer. No doubt, it is the obligation of manufacturer also to supply the products which are workable as per the requirements and if any deviation takes place, it can be held that manufacturer and dealer are in unholy alliance and the object of their may be treated as unfair trade practice. As such, the contention raised by OP No.2 is not sustainable.
OP No3 is proforma defendant and Complainant entered into a separate agreement with Bajaj Finance which is not concerned in the present case because no relief is sought against it. So, we are of the view that OP Nos. 1 & 2 are liable for replacing the split A.C. with a new one within a month of this order, if they fail to comply the order, they are bound to refund Rs.35,700/- with litigation cost of Rs.5,000/- and compensation of Rs.15,000/- within another one month.
Hence,
ordered
CC/20/2017 is allowed on contest.
OP No.1 & 2 are directed to replace the split A.C. with the same model within a month of this order, in default they are directed to pay Rs.35,700/- as price of split A.C. and Rs.20,000/- as compensation and litigation cost within another one month, failing which the total amount shall carry interest @ 10% p.a. from the date of this order.
The liabilities of the OPs are joint and several.
