Tamil Nadu

StateCommission

CC/114/2017

S.John Joseph - Complainant(s)

Versus

National Electricals, The Managing Director - Opp.Party(s)

S.Kathiravan & Others

15 Dec 2022

ORDER

                                                              Date of filing : 03.05.2016                                                                                                                                                                                                                                                                 IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:  Hon’ble THIRU. JUSTICE R. SUBBIAH  : PRESIDENT

                             Thiru R  VENKATESAPERUMAL : MEMBER

 

 

C.C.No.114 of 2017

Thursday, the 15^th day of  December 2022

 

Complaint filed on :  12.06.2017

S. John Joseph

S/o. Santhiyagu

No.18, Pudhuyary

     Varadarasanpettai             

Utayarpalayam Taluk

Ariyalur District - 621 805                                    .. Complainant

 

                                            

                                             - Vs –

1.  The Managing Director                                   

        National Electricals

        16, Junction Road

        Vridhachalam - 606 001

 

   2.  The Managing Director

        Usha International Ltd.

        Plot No.5, Institutional Area

        Sector -32, Gurgaon

        Haryana- 122 001.                                           .. Opposite Parties       

 

 

     Counsel for the Complainant               :  M/s.S.Kathiravan

     Counsel for the 2nd Opposite party    :  M/s.A.D.Sivagurunathan

             1st Opposite party                     :  Set ex-parte

 

     This complaint came before us for final hearing today, i.e., on 15.12.2022 and on hearing the arguments of the counsel for the complainant and the learned counsel for the 2nd opposite party and on perusing the material records, this Commission made the following :-

 

O R D E R

R.SUBBIAH J., PRESIDENT [Open Court]

       This complaint has been filed by the Complainant under Sections 17 of the Consumer Protection Act, 1986 praying for the following directions to the opposite party:

1. To refund the bill amount of Rs.16,000/- (with 18% interest per month), which was paid by the complainant for purchasing the Diesel motor pump after taking back the malfunctioning product;
2. To refund the bill amount of Rs.1,500/- (with 18% interest per month), which was paid by the complainant for the replacement spare parts;
3. To pay a sum of Rs.25,00,000/- towards physical, mental agony and the loss in business suffered by the complainant and his family members; and
4. To pay the litigation cost.

 

             2.  The case of the complainant is that he is basically a farmer and he was carrying on agricultural work for his source of income.  He owned agricultural lands in Varadarasanpettai, Utayarpalayam Taluk, Ariyalur District.  In the said land he was doing cashew cultivation and was also growing teakwood trees.  Since there was no sufficient water to carry on the agricultural activities, now he is working on daily wages, in a construction site in Chennai.  He purchased a water pump 'USHA - Ability' brand, Model No.AK-12, from the shop National Electricals/ the 1^st  opposite party, who projected himself as an authorised dealer of USHA brands.  He purchased the water pump for a sum of Rs.16,000/- by cash, on 04.01.2016.  Within 3 days from the date of purchase, the said diesel motor pump did not function properly.  Immediately, the complainant contacted the 1^st opposite party/ National Electricals from whom he purchased the said water pump and informed them that the pump is not functioning properly.  The complainant had also made a request to them, to send a service engineer to his house to repair the pump.  But, the 1^st opposite party asked the complainant to send a photograph of the malfunctioning spare parts via whatsapp, instead of sending the service engineer.  Hence, the complainant sent a photograph of the spare parts which was not functioning, to the 1^st opposite party.  Even after seeing the photograph, the 1^st opposite party was not willing to replace the malfunctioned spare parts.  The complainant was informed to go to Lingichetty Street in Parrys Corner, Chennai to buy new spare parts.  When the complainant went to the shop to buy the spare parts, the same were not available.  Again he contacted the 1^st opposite party but they asked the complainant to deposit Rs.1100/- to their bank account, enabling them to send the spare parts to him.  Accordingly, the complainant had also deposited the said amount.  The 1^st opposite party also sent the spare parts to the complainant but it was not of the same size to fit into the pump.  So, he again contacted the opposite party but there was no proper response.  Hence, on 14.01.2016, the complainant called the 2^nd opposite party/ the customer service centre of USHA, through the Toll Free number and lodged a complaint.  The complaint was registered under C.No.16022200959, Reg.No.9082 dated 22.02.2016.  As directed by them, the complainant contacted one Mr.Sekar, the Service Engineer, who also asked the complainant to share the photograph of the spare parts via Whatsapp.  On viewing the photographs, the service engineer informed the complainant that the motor pump is a duplicate one and only the label printed on the motor pump bears the name ‘USHA’ and hence they cannot give any guarantee for the spare parts.  After two days, again the service engineer Mr.Sekar contacted the complainant and directed him to deposit money, so that he will arrange a service engineer from Madurai to Salem to repair his motor pump.  Since the complainant felt that he would be cheated again, he denied the said offer.  Hence, a legal notice dated 01.03.2016 was sent to both the opposite parties.  There was no proper response to the legal notice and therefore he has come forward with the present complaint, stating that the 1^st opposite party cheated him by projecting themselves as if they are the authorised dealer of USHA products and sold the duplicate product and the 2^nd opposite party failed to restrict the unauthorised dealer from selling the duplicate products and thus prayed for the reliefs stated supra.

 

      3.   Though notice was served on the 1^st opposite party, he has not chosen to appear before the Commission and hence the 1^st opposite party was set ex-parte. 

 

      4.  The 2^nd opposite party had filed a version stating that the complainant is not a consumer of the 2^nd opposite party, since he had purchased a modified/assembled/refurbished product Diesel Motor Pump from the 1^st opposite party/ National Electricals.  The 2^nd opposite party is not the manufacturer of the product which is sold to the complainant by the 1^st opposite party.  Hence, the complainant is not a consumer of the 2^nd opposite party.  The complainant will not fall under the purview of 'Consumer' under Section 2(1)(d) of the Consumer Protection Act, 1986.   The 2^nd opposite party states that the 1^st opposite party had assembled a "Ability" make engine manufactured or marketed by some other entity with 'USHA' brand pump, which was dismantled from their GK 100 Diesel Engine.  The product sold by the 1^st opposite party was some assembled/modified product, which is not manufactured by the 2^nd opposite party and they cannot be held liable for the acts, deeds and actions done by the 1^st opposite party in its personal capacity.  The 2^nd opposite party has neither extended any guarantee or warranty nor 1^st opposite party is authorised to extend the same to its customers on behalf of the 2^nd opposite party in respect of such modified/assembled/refurbished products manufactured by them.  Therefore, the 1^st opposite party alone is solely responsible, if at all there is any defect in the product.    The complaint against the 2^nd opposite party is gross abuse process of law.  Hence, sought for dismissal of the complaint. 

 

     5.  In order to prove the case, the complainant, along with proof affidavit, has filed 4 documents and the same were marked as Ex.A1 to A4.  The 2^nd opposite party had filed proof affidavit but no documents were marked by them.

 

     6.  When the matter was taken up for consideration, counsel for the complainant made a detailed submission adverting to the averments made in the complaint.  The main submission of the complainant is that he had purchased a USHA Diesel Motor pump, Brand name 'Ability' from the shop of the 1^st opposite party, who projected himself as an authorised dealer of 'USHA'.  He purchased the said Diesel Motor pump on 04.01.2016 for a sum of Rs.16,000/-.  But within 3 days, i.e., on 07.01.2016 the Diesel Motor pump started to give problem and it was not functioning properly.  Hence, he complained about the repair of the Diesel Motor pump to the 1^st opposite party on 11.01.2016 and asked the 1^st opposite party to send a service engineer to attend the defects.  But, the 1^st opposite party instead of sending a Service Engineer, asked the complainant to send a picture of the spare parts that was not functioning properly.  After reviewing the picture of the same, the 1^st opposite party suggested the complainant to go to Linghi Chetty street to buy spare parts.  Since the complainant could not find the spare parts, again he approached the 1^st opposite party.  The 1^st opposite party after getting a deposit amount of Rs.1100/-, supplied new spare parts.  But the spare parts supplied by the 1^st opposite party were not the one which was already fitted in the motor pump.  When the complainant contacted the 1^st opposite party to inform the same, he did not respond properly.  Therefore, he contacted the 2^nd opposite party/manufacturer for the spare parts.  The service engineer of the 2^nd opposite party, also asked the complainant to share the picture of the motor pump.  On seeing the picture, the service engineer informed the complainant that only the label printed on the motor pump is USHA but the spare parts of the motor pump are all duplicate, to which guarantee cannot be extended by the 2^nd opposite party.  Thereafter, the complainant sent a legal notice to both the opposite parties.  Though the 1^st opposite party received the notice, they have not come forward with any reply.  A reply was sent only by the 2^nd opposite party stating that they do not have a model by name ABILITY Model No.AK-12 Water Pump.  Thus, the counsel for the complainant submitted that the complainant has been cheated by the 1^st opposite party by selling a duplicate product under the brand name USHA and the 2^nd opposite party, who is the manufacturer, has not taken any action against the 1^st opposite party to curtail the selling of duplicate products.  Hence, both the opposite parties are liable to pay compensation.

 

     7.  Denying all the allegations, the 2^nd opposite party submits that the product purchased by the complainant is a duplicate product.  The 2^nd opposite party is not the manufacturer of the said product which is sold to the complainant by the 1^st  opposite party.  The complainant has not produced a single piece of evidence like a warranty card issued by the 2^nd opposite party company to show that the motor pump was manufactured by the 2^nd opposite party.  The 1^st opposite party on his own accord was selling the assembled Diesel Motor pump and the 2^nd opposite party is no way connected with the same.  Thus, they sought for dismissal of the complaint as against the 2^nd opposite party.

 

     8.  Keeping in mind the submissions made by the counsel for the complainant and the counsel for the 2^nd opposite party, we have carefully gone through the entire material placed on record.

 

      9.  The sum and substance of the allegation of the complaint is that he had purchased a Diesel Motor pump on 04.01.2016 for a sum of Rs.16,000/-, USHA –Ability brand Model No.AK-12 from the shop of 1^st opposite party.  But, within 3 days from the date of purchase it was not functioning properly.  The said Diesel Motor pump was sold to him by the 1^st opposite party projecting himself as a dealer of USHA products.  When the complainant made a complaint to the 1^st opposite party about the non-functioning of Diesel Motor pump purchased from him, the 1^st opposite party has not properly responded.  Hence, the complainant contacted the 2^nd opposite party/ manufacturer and he came to know from the 2^nd opposite party that though the label printed on the Diesel Motor pump is USHA what was sold to him is only modified/assembled/refurbished Diesel Motor Pump.  The 2^nd opposite party has nothing to do with the said product and they are not having a model by name ABILITY.  Hence, it is the grievance of the complainant that he has been cheated by the 1^st opposite party by selling a duplicate Diesel Motor pump as if it is the product of USHA.  The 2^nd opposite party has failed to restrict the sale of duplicate product by the 1^st opposite party.  Therefore, both the opposite parties have conducted unfair trade practice and both are liable to pay compensation.  But it is the reply of the 2^nd opposite party that when they had come to know about the misuse of their name by the 1^st opposite party, they have initiated proceedings. 

 

      10.  Be that as it may, it is the specific stand of the 2^nd opposite party, what was sold to the complainant by the 1^st opposite party is not their product.  Hence, the complainant is not a consumer of the 2^nd opposite party.  We find some force in the said submission made by the 2^nd opposite party.  If the product, namely, Diesel Motor pump sold by the 1^st opposite party is manufactured by 2^nd opposite party, the complainant would have produced some evidence like warranty card issued by the 2^nd opposite party.  But, the complainant has not produced any evidence to show that the Diesel Motor Pump set purchased by him was manufactured by the 2^nd opposite party. When the product purchased by the complainant is not the product of the 2^nd opposite party, as contended by the counsel for the 2^nd opposite party the complainant cannot be construed as a consumer of the 2^nd opposite party.  But it is the grievance of the complainant that the 2^nd opposite party has not taken any action to restrict the sale of duplicate products by 1^st opposite party.  Therefore, the 2^nd opposite party is also liable to pay compensation. But, we are not inclined to accept this submission made by the counsel for the complainant, for the reason that the issue involved in this case is with regard to the defective Diesel Motor Pump sold by the 1^st opposite party and not with regard to any proposed action to be taken by the 2^nd opposite party against the 1^st opposite party.  Further, it is the submission of the 2^nd opposite party that they have already initiated proceedings against the 1^st opposite party for misusing the name of USHA.  So far as the 1^st opposite party is concerned though a legal notice was issued by the complainant stating that the product sold by them is not the product of USHA, the 1^st opposite party has not chosen to send any reply denying the allegation.  The legal notice sent by the complainant was also marked as Ex.A1.  In the present proceedings also, the 1^st opposite party has not chosen to appear before this commission to deny the allegations.  The conduct of the 1^st opposite party would clearly show that what was sold by him is only a duplicate product.  Therefore, it is clear that there is an unfair trade practice on the part of the 1^st opposite party.  Therefore, the complainant is entitled for compensation against the 1^st opposite party.  On perusal of the invoice marked as Ex.A3, it could be seen that the complainant has paid a sum of Rs.16,000/- towards the price of the Diesel Motor pump.  Therefore, the 1^st opposite party is liable to refund the cost of the Diesel motor pump with interest.  That apart the complainant is also entitled for compensation for the mental agony suffered by him.

 

      11.   In the result, the Complaint is allowed.  The 1^st opposite party is directed to refund the sum of Rs.16,000/- being the cost of the diesel motor pump, with an interest of 9% p.a., to the complainant from the date of complaint till the date of realisation and Rs.25,000/- as compensation towards mental agony.  The complaint against the 2nd opposite party is dismissed. 

 

 

 R  VENKATESAPERUMAL                         R.SUBBIAH, J.

MEMBER                                                     PRESIDENT

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT

 

Sl.No.       Date                 Description of Documents

 

Ex.A1        01.03.2016       Copy of legal notice sent to the opposite

                                        parties 1 & 2 with acknowledgement cards

 

Ex.A2        21.03.2016       Copy of reply notice from 2nd opposite

                                        party

 

Ex.A3        04.01.2016       Copy of the Invoice of product USHA Diesel

                                        Motor Pump

Ex.A4                -             Photo of the motor pump

 

 

 

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE OPPOSITE PARTY

 

•   NIL   -

 

 

 

 

 

R  VENKATESAPERUMAL                                        R.SUBBIAH

         MEMBER                                                      PRESIDENT

 

 

 

Index :  Yes/ No

AVR/SCDRC/Chennai/Orders/December/2022

 

 

 

 

 

 

 

 

 

 

 

C.C.No. 114 of 2017

HON’BLE  JUSTICE

THIRU R.SUBBIAH, PRESIDENT

     In the result, the Complaint is allowed.  The 1st opposite party is directed to refund the sum of Rs.16,000/- being the cost of the diesel motor pump, with an interest of 9% p.a., to the complainant from the date of complaint till the date of realisation  and Rs.25,000/- as compensation towards mental agony.  The complaint against the 2nd opposite party is dismissed.  No costs.

 

 

MEMBER                  PRESIDENT             

15.12.2022           15.12.2022