BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.68/2009

Dated this the 6^th day of March 2015.

Dr.T.V. Anbalagan, S/o.R.T.Velu

No.15/A, V.O.C. Street, Koranadu

Mayiladuthurai Town, Tamil nadu.                                  ….       Complainant

Vs.

1. M/s.Muthu Traders,

   No.105, 106, Bharathiyar Street,

   Karaikal-609 602.

2. The Dealer

    Naresh Marketing,

    Chetty Street, Puducherry.                                              ….     Opposite Parties

BEFORE:

            THIRU.A.ASOKAN, B.A., B.L.,

            PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

FOR THE COMPLAINANT          :  Thiru.S.Vimal, Advocate.

FOR THE OPPOSITE PARTIES  : OP.1: Exparte

      OP.2: Thiru.T.Gunasegaran, Advocate

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying :

1. Directing the opposite party to pay a sum of Rs.1600/- towards the cost price of the cooker to the complainant with interest at the rate of 12% per annum on the said amount of Rs.1600/- from 01.03.2007 till the realisation of the entire amount u/s.14(c)of the Consumer Protection Act.
2. Directing the opposite party to pay an amount of Rs.50,000/- to the complainant towards compensation with 12% interest on the said amount of Rs.50,000/- from the date of this complaint till the realisation of the entire amount u/s.14(d) of the Consumer Protection Act, 1986.
3. To award the cost of Rs.3000/- for this complaint u/s.14(i) of the Consumer Protection Act, 1986
4. To pass such other orders deems fit in the circumstances of the case.

2.  The case of the complainant is as follows:

            The complainant had purchased a Bajaj Majestic Rice Cooker for Rs.1600/- on 01.03.2007 under cash bill No.16063.  On the date of purchase itself the cooker was malfunctioning and not upto the standard i.e. water is gushing out whenever it is put into operation.   This fact has been complained to both opposite parties in order to attend the defects, but the opposite parties were dodging. With the view to rectify the defect, the complainant gave the cooker to the first opposite party on 17.11.2007 and on the same very day, the said cooker was handed over to the complainant stating that the said defect was rectified.   But when the complainant put the said cooker in use, he found the same defect recurred and water gushed out whenever it was put in use.  As per the Warranty, the first opposite party is bound to rectify the faults or to reimburse the cost of the cooker or to deliver a new piece with good condition.  The complainant issued an advocate notice to the opposite parties on 13.12.2007.  After acknowledging the said notice, the first opposite had sent his representative and took the cooker with on 26.12.2007, but till date the first opposite party had neither supplied a new cooker nor reimbursed the cost of the cooker inspite of the complainant's repeated demands.  The complainant once again issued another advocate notice dated 03.01.2008.  Though the said advocate notice was received by the opposite parties, they have neither chosen to reply for the same or to replace/rectify the defect in the pressure cooker, which amounts to deficiency and negligence in service.  Hence this complaint.

3.         The reply version of the second opposite party is as follows:

            This opposite party denies all the allegations contained in the complaint except those that are specifically admitted in the reply version. This complaint is improper and incorrect and is not maintainable on facts or under law and lacks bonafideness and thus liable to be dismissed with cost.  The manufacturer of Bajaj Majestic Rice Cooker, namely Bajaj Electricals Limited having office at Mumbai is the necessary party to the proceedings and due to the non-joinder of necessary party, this complaint is liable to be dismissed.  The complainant gave the cooker to the first opposite party on 17.11.2007 and when the first opposite party with the help of the service person, after verification with the complaint made by the customer, found no manufacturing defect in the product and had returned it. Each product of Bajaj appliances comes with a warranty card which clearly says that, in case of manufacturing default, the customer should first approach the authorised service centre and Consumer Affairs Cell of Bajaj Electricals Ltd., Mumbai but the complainant failed to do so.  After receipt of advocate notice dated 13.12.2007, the first opposite party met the complainant at his residence alongwith the service technician from Bajaj Service Center and took the electric rice cooker on 26.12.2007 and noticed no defect at all and this fact was also informed to the complainant immediately and the complainant had said that he would take delivery in couple of days.  Instead of taking delivery of the cooker, the complainant has filed this complainant with the motive of extracting money.

4.         Both the first and the second opposite party are in business for more than 20 years and have a good customer support and goodwill in and around Pondicherry region.   The second opposite party is the sole distributor for M/s.Bajaj Appliances at Puducherry for more than a decade and had sold lakhs of Bajaj electric rice cooker of different models to several dealers both in Puducherry and Tamil nadu and had never come across the alleged defect in the complaint.  It is further submitted by the opposite party that this electric 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 the rice.  The complainant had mistook the excess water coming out of the lid when he used the cooker. There is a water level indicator marking inside the vessel of the cooker and if the water used exceeds the recommended level and disproportionate to the rice added for boiling, it is quite natural that water will definitely gush out through the hole in the lid and at the peak time of boiling, the steam generated will even lift the lid.   Absolutely there is no defect in the electric rice cooker purchased by the complainant.  Eventhough there is no defect in the cooker, the second opposite party offered a new cooker as replacement, since the complainant was very adamant about it in his lawyer notice immediately after receiving the summons from this Forum, but the complainant refused the offer and was firm in demanding Rs.25000/- as settlement.  Hence prayed to dismiss the complaint with compensatory cost.

5.         The averments in the additional reply version of the second opposite party are as follows:

            In the main reply version filed by the opposite party, it is by oversight mentioned that the said electric rice cooker is vested with the service station but infact the cooker is with the first opposite party and the said fact is admitted by the complainant in the complaint. The very filing of this type of complaint is an intentional act for unjust enrichment.  Hence prayed to dismiss the complaint with compensatory cost.

 6.        On the side of the complainant,  Exs.C1 to C7 marked. On the side of the second opposite party, one Mr.Naresh M.Jain has been examined as RW.1 and Exs.R1 to R3 marked through him and Mr.Ramesh Babu has been examined as RW.2.

7.         Points for determination are:

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?

8.         Point No.1:

            The complainant has purchased one Bajaj Majestic Rice cooker for valid consideration of Rs.1600/- from the first opposite party on 01.03.2007 vide Ex.C1.  Hence as per section 2(i)(d)(i) of the Consumer Protection Act, the complainant is the consumer to the first opposite party. 

9.         The second opposite party has taken the plea that they are the distributors for the manufacturer of the said Rice cooker and no cause of action arose against them in respect of the defect in the cooker.  The second opposite party further alleges that they only service provider and no way directly connected with the consumer.  If the complainant claims defect in goods he ought to have implead the manufacturer as party to the proceedings.  This Forum determined that the second opposite party was only an intermediary between the first opposite party and the manufacturer.  In this regard this Forum relied the observation reported in I(2010) CPJ N.C- 235 in Classic Automobiles Vs.Lilanand Mishra and another. Hence the complainant is not the consumer to the second opposite party.

9.         Point No.2:

            We have perused the pleadings and reply version and Exs.C1 to C7 and Exs.R1 to R3 and the written arguments filed by both the parties.

            It reveals from the pleadings and exhibits filed by the complainant that the cooker purchased by the complainant from the opposite party allegedly defective one.  Being the cooker purchased by the complainant is defective one, he has to array the manufacturer as a party to the proceedings.  This plea has taken by the second opposite party in the reply version.  This Forum is also relied the decision reported in 1(2005)CPJ -585 in Lakshmi Electro Channel Authorisation Vs.Fabionix India Pvt. Ltd., the manufacturer is liable for any defect in goods sold irrespective of the fact that whether there was any privity of contract between the purchaser and the manufacturer or not.  In view of the above observation, the complainant ought to have impleaded the manufacturer as the party to the proceedings.  Hence this complaint is bad for non-joinder of the manufacturer as necessary party.

10.       Point No.3:

            The complainant has not filed any supportive documents or evidence that the said cooker purchased by him is defective one.  The nature of the defects claimed by the complainant is also not clearly established by the complainant.  Even no oral evidence adduced by the complainant.  Eventhough the first opposite party set exparte the onus to prove the manufacturing defect is lying on the complainant.  The complainant has to prove the defects in goods on the basis of testimony.  Without such testimony, this Forum cannot decide suo moto. The alleged defective cooker also not placed before this Forum. The complainant has not proved his claim that the cooker purchased by him is defective one.

11.       Point No.4:

            In view of the decision taken in point no.2 and 3, this complaint is hereby dismissed. No cost.

Dated this the 6^th day of March 2015.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

COMPLAINANTS WITNESS:  Nil

OPPOSITE PARTY S WITNESS: 

RW.1              18.06.2014    Naresh M Jain

RW.2              18.06.2014    Ramesh Babu

 COMPLAINANTS EXHIBITS:

OPPOSITE PARTYS EXHIBITS:   

(A. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER