(None for the O.P No.2 ).
.….Opposite Parties (O.Ps)
ORDER U/S- 39 R/W SECTION- 64 OF THE C.P.ACT,2019
Delivered:- Hon’ble President: Shri Rajendra Kumar Panda
Brief facts of the case:-
Case in hand is the allegation of deficiency in service and unfair trade practice by the O.Ps for non refund of purchase price a sum of Rs.1,79,450/- KYK Higen 2 + Hydrogen water Generator vide its Sl. No.H-302006071 which was found manufacturing defect with in warranty period which the complainant sought redressal.
The Back ground facts in a nutshell are that the complainant had purchased a KYK Higen 2 + Hydrogen water Generator vide its Sl. No.H-302006071 from the O.P. No.1(Dealer) bearing invoice No.SJA/7/20-21 Dated.25.09.2020 on payment of consideration a sum of Rs.1,79,450/- . Even after changing of three alkaline and Hydrogen water machine, they did not worked at all. After purchase of the above said Alkaline and Hydrogen water machine the complainant did not used the same in peace mind. The above machine is found defective and contained manufacturing defects in all the three machines having been replaced by the O.Ps. The complainant has invested a huge amount in purchasing Alkaline and Hydrogen water machine, expecting to have good return from the same. At last the complainant lost faith in the brand of the O.Ps. The complainant approached the O.Ps through E-mails to refund the purchase price of the above product, but the O.Ps had paid deaf ear to the genuine complaint. Hence, the complainant finding no option approached this Commission to get relief alleging deficiency in service on the O.Ps prayed to direct the O.Ps to replace with a new one or refund the purchasing price of Rs.1,79,450/- for said above set and further claimed Rs.50,000/- for physical and mental harassment besides other reliefs . To substantiate its complaint, the complainant filed Invoice, Warranty card.
On being noticed the O.P. No. 1(Dealer) has appeared before the Commission and submitted that the O.P. No. 2(Manufacturer) had sold the above above set to the complainant through the O.P. No.1 (Dealer)on receipt of consideration from the complainant. After receipt of the complaint from the complainant regarding non functioning of the above set I had intimated the same to the O.P. No.2(Manufacturer) for necessary action. So there is no deficiency in service on my part & prayed the hon’ble commission to dismiss the above petition against the O.P. No.1(Dealer) for the best interest of service.
The Notice served on the O.P No.2 (Manufacturer) through the Postal service and returned with a postal remark “not available”. Hence this commission sent notice through E-mail on Dated.14.12.2023 but the O.P. No.2(Manufacturer) neither appeared before the commission nor filed written version. Hence the O.P. No.2 (Manufacturer) made expartee.
Heard from the learned counsel for the complainant.
Basing on the pleadings of the parties this commission framed the following issues for determination.
ISSUES:-
- Whether the complainant is a consumer under the O.Ps.?
- Whether the services of the O.Ps are deficient towards the complainant?
- Whether the complainant is entitled to any reliefs from the O.Ps?
Issue No.1.
As per Consumer Protection Act a person can be deemed to be a consumer when he hires or avails of any services for consideration which has been paid or promised to be paid. In the instant case there is no dispute that the complainant had purchased the KYK Higen 2 + Hydrogen water Generator vide its Sl. No.H-302006071 from the O.P. No.1 (Dealer) on payment of consideration of Rs.1,79,450/- bearing invoice No.SJA/7/20-21 Dated.25.09.2020 issued by the O.P No.1 (Dealer) infavour of the complainant. Therefore the complainant falls within the definition of consumer.
In view of the discussion above, the complainant is a Consumer under the O.Ps as envisaged U/S-2(7)(1) & (ii) of C.P. Act, 2019 corresponding to Section of the erstwhile Act of 1986.
Accordingly issue No. 1 is answered.
Issue No.2& 3 .
These two issues invite common discussion and hence they are being taken up together.
There is no dispute that there is a warranty of two years and the date of expiry of warranty was Dated.25.09.2022 and the complainant filed the consumer complaint before this commission on Dtd.24.02.2022 i.e. within the warranty period.
The O.P. has not produced any supporting documents as per the reply in respect of prompt service provided by the O.Ps. As such in absence of the supporting documents as per averment, this commission have not taken into consideration the pleas of reply.
The O.P. No.2(Manufacturer) has neither appeared before this commission nor filed written version but replaced the same with a new one. Inspite of repeated repair and replacing the new machine by the O.P the above product again started giving same trouble such as leakage of water as there has been manufacturing defect in the product.
The criteria of declaring manufacturing defect no more rests only expert opinion. Circumstances and facts of the case also play its role in reaching to the find result. There can not be a mechanical or straight Jacket approach that each and every case of alleged defects must be referred to expert opinion, if decision is taken to obtain expert opinion in all cases and defects is proved on the basis of expert evidence, the efficacy of remedy provided under this Act would be illusory.
In the medical negligence case also the Hon’ble Supreme Court reverses its own order saying “Expert opinion no more mandatory in V.Krishna Rao Vrs Nikhil Super Speciality Hospital & others pronounced on Dtd. 8.3.2010.
This Commission perused the documents filed by the complainant and it proves that the complainant has purchased above set from the O.P. No.1(Dealer) and after its purchase when the above set was found defective and the O.P No.2 (Manufacturer) failed to remove the defects of the above set. At the time of selling their products the O.Ps ensure that they would provide after sale service to the consumer, but in this case the O.Ps sold their product and failed to give after sale service which is clear deficiency in service on the part of the O.Ps.
At this stage we hold that if the above product require service immediately after its purchase then it can be presumed that it is manufacturing defect and if a defective product is supplied , the consumer is entitled to get refund of the price of the product/article or to replace a new one and also the consumer is entitled and has a right to claim compensation and cost to meet his mental agony, financial loss.
In the instant case as it appears that the above product which was purchased by the complainant had developed defects immediately after its purchase and the O.Ps were unable to restore its normal functioning during the warranty period.
It appears that the complainant invested a substantial amount and had purchased above product with an expectation to have the effective benefit of use of the product, but in this case the complainant was deprived of getting beneficial use of the article and deprived of in using the above set as the defects were not removed by the O.Ps.
It is pertinent to mention that relationship between the dealer, manufacturer and service provider/care centre is reciprocal to each other, they are principal to principal and not as principal and agent. Hence all the O.Ps are liable for their own wrongs.
Hence it is ordered.
O R D E R
In resultant the complaint petition stands disposed off on contest against the O.Ps.
The complaint is partly allowed with the direction to the O.P. No.2( the Manufacturer) to take back their product and refund purchase price a sum of Rs.1,79,450/- to the complainant. Parties are left to bear their own cost.
The O.P. No. 2(Manufacturer) shall comply the order with in a period of 45 days from the date of receipt of this order.
Miscellaneous order if any delivered by this commission relating to this case stands vacated.
Pronounced in the open court of this Commission today on this 21st.. Day of February, 2024 under the seal & signature of this Commission.
Dictated and corrected by me.
PRESIDENT
A copy of this order be provided to all the parties at free of cost as mandated by the Consumer Protection Act, 2019 or they may download same from the confonet.nic.in to treat the same as if copy of order received from this Commission.
The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
File be consigned to the record room along with a copy of this Judgment.
PRESIDENT
PRONOUNCED ON Dated. 21.02.2024
