DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BOLANGIR.
…………………….
Presents:-
- Sri P.Samantara, President.
- Sri G.K.Rath, Member.
- Smt. S.Rath, Member.
Dated, Bolangir the 26th day of October 2016.
C.C.No. 86 of 2015.
Bibhisan Behera, aged about 45 years son of Kashinath Behera Resident of
Village-Baghala P.O.Chandanvati., P.S.Bolangir Sadar Dist- Bolangir.
.. .. Complainant.
-Versus-
M/S. Virendra Trading Co At- Sambalpur Road,
Near Durga Mandap, Bolangir Town, P.O/P.S &
District- Bolangir.
.. .. Opp.Party.
Adv. for the complainant- Sriprakash Mishra.
Adv.for the Opp.Party - Sri B.K.Nanda & Associates.
Date of filing of the case- 20.11.2015
Date of order - 26.10.2016
JUDGMENT.
Sri P.Samantara, President.
1 The complainant purchased a water pump of USHA company from M/S Virendra trading co, Sambalpur road , Bolangir .On dated 07th OCT 2015. Consideration Rs 5,500 with one year of warranty, model N0-40 x 40 ST and bearing Sl.no-641220069. It is complained the pump did not work in post installation .The complained was lodged with the dealer and same was neither removed or rectified to visit the spot and also not replaced with repeatative approach.
2. So it is a averred, the seller has sold a defective product and remain callous in rendering service as per the law. Such callousness within the expressed warranty period and deaf as to the problem surfaced has created harassment and mental agony, which needs to be recuperate properly in giving relief as deemed fit and proper.
3. In pursuant to notice, the authorized dealer, M/S. VIRENDRA TRADING COMPANY appeared . Not made any version or submission in adjudication tenure of hearing having giving sufficient opportunity.
4. Heard the complainant and proceeded to decide u/s 13 sub section (2) & (3) the consumer protection act 1951.
5. The O.P appeared and avoided in giving submission, ample speaks steps are deliberate and ill willed one.
6. The complaint in purchase the pump from the authorized dealer against the consideration of Rs 5500 to an agricultural pump is a consumer. The defect in non functioning of the product is against the norms of the warranty. That the product is free from any defect . We also found in selling the product no receipt has been issued to the purchase , which is a mandatory provision of law , besides being an authorized dealer has incurred enormous loss harassment and mental agony after the selling a reputed branded product. We deemed the expressed warranty conditions as expressed in the warranty card and non observation of the same is breach of contract and commission of negligence under sales of goods ACT. The avoidance in implementing the expressed terms and conditions is s defect within the terms of provision as laid down in 2 (f) of that reads- “defect” means any fault , imperfection or shortcoming in quality, quantity, potency , purity or under any law for that time being in force or under any contract , express or implied or as is claimed by the trader in any manner , what so ever in relation to any goods.
7. We observed the defects are substantive and defects not rectified or removed after repeated approach even after institution of the case, the dealer is uncomprised, callous, intransigent and did not bother to attend to call or made any submission does prove the authorized dealer did not respect law rather interested to sell and amass defrauded money in unscrupulous way. In this case, the non-attendance and to ignore and omits the entire issue on the sold product is gross deficiency of service in non rendering service willfully. The irresponsibility is ineffable, proved and established to the core.
8. Further we consistent in view that whenever a branded new product is sold to a consumer there is an implied contract the product/goods being sold does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming. It is bounded duty of both manufacturer and dealer to attend to defect and make it defect free goods and if they are not in position to do so, they should either refund cost of the goods/product or provide a new goods to the consumer and the manufacturer and dealer permitted to carry out necessary repairs, as they are the competent to do so within the warranty period make it defect free and hand it over to consumer along with certificate of repairment. There is no way in wriggle out from this responsibility which has been further made out in this case. Even the USHA Hologram posted warranty card last clause stipulates “ in any event, if the company becomes liable for damages, incurred in connection with this agreement, then the liability of the company will be limited to the amount equal to the sale invoice amout paid by you” which neither honoured by VIRENDRA TRADING CO. nor intimated to the manufacturer in any way in making a resolute endeavour.
9. In view of the above noted findings, we can say the O.P has not responded as per the law. The O.P has not rendered any service & commission of breach of trust kept the pump at his end without intimating the status of rectification to the consumer with repeated approach. It all shows that defects have generated during the period of warranty and it was the duty of the respondent to cure such defects within a reasonable time. Too belated effort has no role to play. Failure to honour promise to replace defective unit constitutes deficiency of service. Adonis Electronics Pvt Ltd. Vs Nikhil Gargan- 2010 (1) CPR 65.
10. The nature of O.P is against the principles as laid out in the Consumer Protection Act. Thus his deliberate omission and willful ignorance paves the way for liability. Hence ordered’
ORDER.
The O.P is directed to supply one new brand of USHA pump in place of the defects surfaced one, of same specification, feature standard and performance along with afresh warranty card in extension, within 30 days of this order in intimating to this forum in instant. No order as to compensation and cost.
In alternate, in non-supply of the pump to the petitioner, the O.P is liable to pay the cost i.e Rs 5,500/-(Rupees Five thousand five hundred) only, along with a sum of Rs 2,000/-(Rupees Two thousand) only, towards agricultural loss, harassment and mental agony sustained hitherto within the above time frame, failing which a penalty of Rs 10/- per day will accrue till realization or payment to the petitioner.
ORDER PRONOUNCED IN OPEN FORUM THIS THE 26TH DAY OF OCTOBER 2016.
(S.Rath) (G.K.Rath) (P.Samantara)
MEMBER. MEMBER. PRESIDENT.
