Haryana

Panchkula

CC/94/2018

SARIKA DHINGRA - Complainant(s)

Versus

NEW JINDAL CROCKERY HOUSE - Opp.Party(s)

S.K JATAV

09 Apr 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA

                                                       

Consumer Complaint No	:	94 of 2018
Date of Institution	:	17.05.2018
Date of Decision	:	09.04.2019

 

Sarika Dhingra aged 49 years wife of Sh. Sohan Lal Dhingra, resident of House No.370, Sector 17, Panchkula.                             ….Complainant

 

Versus

1. New Jindal Crockery House, SCO No.8, Sector 10, Panchkula, through its Proprietor.
2. Morphy Richard through Bajaj Electronics Ltd. 701, Rustomjee Aspiree, Bhanu Shankar Yagnik Marg, Off Eastern Express Highway, Sion (E), Mumbai, through its Authorized person/signatory.

….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:              Mr.Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr.Sushma Garg, Member.

 

For the Parties:   Mr. S.K.Jatav, Advocate for complainant. 

                        Mr. Abhineet Taneja, Advocate for Op No.1.

                        OP No.2 already ex-parte vide order dated 11.12.2018.

ORDER

(Satpal, President)

1.     The brief facts of the present complaint are that on 09.12.2017, the complainant had purchased a Microwave Oven 23 MCG of Morphy Richards company from the OP No.1 vide Bill No.12263 for an amount of Rs.8990/- and the same carried 02 years warranty. But after 2-3 days, the said Microwave oven stopped functioning. The complainant visited the OP No.1 and informed about the defect and then the mechanic of the OP No.1 had checked the said oven and found that there was manufacturing defect in it. Thereafter, the OP No.1 had directed the complainant to take the same to her house and further advised to register a complaint with the company in this regard and thereafter the complainant registered the complaint with the company vide complaint No.14096891, dated 10.04.2018 but till date no action has been taken on the complaint of the complainant. Thereafter, the complainant again visited the OP No.1 and requested to replace the defective microwave oven with new one as it was not working. But the OP No.1 had again directed the complainant to make the second complaint with the company and then he will replace the said defective microwave oven with the new one. Thereafter, the complainant again lodged a complaint with the OP. But in spite of lodging the second complaint no step has been taken by the company as well as the OP No.1 to replace the defective microwave oven. Thereafter, the complainant along with her husband again visited the OP No.1 and requested to change the said defective microwave oven, but this time the OP No.1 had refused for the same; this act and conduct of the Ops amount to deficiency in service on their part; hence, this complaint.

2.     Upon notice, the OP No.1 has appeared to contest the complaint and has filed the written statement taking some preliminary objections that the complainant has not approached this Forum with clean hands as the same has concealed and suppressed the material facts from this Forum; the complainant is stopped from her own act and conduct to file the present complaint. It is stated that complaint is liable to be dismissed as no evidence whatsoever has been placed on record by the complainant to prove that the microwave oven purchased by the complainant is defective. In case, the complainant proves that the product is defective, the OP No.2 has to repair the defective product as per the terms and conditions of the warranty, and in case, it is not repairable, the product will be replaced with the new one. Further, as per the procedure, in order to get the defects checked, the customer has to approach OP No.2 or in case, the customer approaches the OP No.1, the OP No.1 being the customer-oriented organization also forwards the complaint of the customers to the OP No.2-company. However, in the present case, the complainant approached the OP No.1 only after lodging the complaint with OP No.2 and asked the OP No.1 to replace the product. When the OP No.1 contacted OP No.2, it was informed by them that the complainant has not allowed the mechanic to repair the oven. In case, the OP No.2 certifies that there is any defect in the oven, which was not repairable, the OP No.1 would replace the produce with the new one. Since no evidence has been led by the complainant to the effect that the microwave oven purchased by her is defective and also no evidence has been led by her to show that the product is not repairable, the present complaint is not maintainable and liable to be dismissed.  

        On merits, it is specifically denied that the microwave oven stopped functioning after 2-3 days. It is denied that the complainant approached the OP No.1. It is also denied that any mechanic of the OP No.1 ever stated that there is any manufacturing defect in the oven. It is submitted here that as per own version of the complainant, she lodged the first complaint with the company on 10.04.2018 i.e. after four months of purchasing the oven. Further, the complainant approached the OP No.1 only after lodging the complaint with the company and asked the OP No.1 to replace the product. It is denied that the OP No.1 ever asked the complainant to take the oven to her house. It is wrong that the complainant approached the OP No.1 for replacement of the product. It is also wrong that the OP No.1 ever asked the complainant to lodge the second complaint with OP No.2. It is denied that any mental agony and harassment has been caused to the complainant; thus, there is no deficiency in service on the part of OP No.1 and as such, the complaint of the complainant is liable to be dismissed with costs. 

3.     Notice was issued to the OP No.2 through registered post on 02.11.2018 vide registered post No.RH335953221IN, which was not received back either served or unserved despite the expiry of 30 days from the issuance of notice to OP No.2; hence, it was deemed to be served and thus, due to non appearance of Op No.2, he was proceeded ex-parte by this Forum vide its order dated 11.12.2018.

4.     To prove her case, the complainant has tendered her affidavit as Annexure CA, affidavit of her husband Annexure CB along with documents Annexure C-1 to C-4 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.1 tendered affidavit Annexure R1/A and closed the evidence.  

5.     We have heard the ld. counsel for the complainant and ld. counsel for the Op No.1 and gone through the record minutely and carefully.

         It is evident that the complainant has purchased a Microwave Oven 23 MCG of Morphy Richards Company for an amount of Rs.8,990/- from the OP No.1 vide bill dated 09.12.2017. It is also evident that said oven carried a warranty of 02 years vide warranty card Annexure C-2. As per the version of the complainant, said oven stopped functioning due to some defects in it after 2-3 days from its purchase and in this regard she approached the OP No.1 with regard to the said defect in the oven, who advised the complainant to lodge a complaint with the OP No.2; upon asking of OP No.1, a complaint No.14096891 dated 10.04.2018 was lodged by the complainant with the OP No.2. It is alleged that she lodged a complaint No.14096891  with the OP No.2 at the asking of OP No.1. The grievances of the complainant are that neither the defective oven has been repaired nor the said oven has been replaced.

6.     The OP No.2 has preferred not to defend the present complaint by way of absenting himself from the hearing of the present complaint despite the service of registered notice to him.  Due to absence of OP No.2, he was proceeded ex-parte vide order dated 11.12.2018 passed by this Forum.

7.     The OP No.1 has appeared and denied the contentions of the complainant stating that the complainant had approached the OP No.2 first instead of him, by way of lodging the complaint with regard to defects if any in the oven in question. The ld. counsel appearing on behalf of OP No.1 contended that the complainant did not permit the technical person/mechanic of the OP No.2 to inspect and repair the micro wave oven. The ld. counsel vehemently argued that in the absence of any finding of the OP No.2 regarding the defects being not repairable the micro wave oven cannot be replaced as per the terms and conditions of the warranty. The ld. counsel asserted that there was no lapse on the part of the OPs as the complainant herself did not permit the mechanic of the OP No.2 to repair the product/oven in question.

8.     Having gone through the entire record available on the file and keeping in view the arguments advanced by the ld. counsel for the parties, we find that the claim of the complainant with regard to replacement of the oven in question being defective has been declined only on the ground that the complainant did not allow the mechanic of OP No.2 to inspect and repair the product/oven. We do not agree with the said plea of the OP no.1 as we do not find any details of conversation between the OP No.1 and 2 substantiating the said plea. It has also not been brought on record by the OP No.1 as to when the mechanic of the OP No.2 visited the house of the complainant. Further, the OP No.1 is also silent with regard to the name and post of the technical person/mechanic, who was allegedly deputed by OP No.2 to repair the oven in question. Moreover, there is no report of any such alleged mechanic or technical person showing the refusal on the part of the complainant that she did not want to get the oven repaired. We do not come across any job sheet on record in support of the contention of the OP No.1 that the complainant had declined to avail the services of the mechanic of OP No.2. It is well settled proposition of law that mere bald assertions not corroborated by credible and cogent evidence carries no evidentiary value and thus, the plea of the Op No.1 that complainant herself declined to avail the services of the mechanic, deputed by OP No.2, is rejected.

9.     Moreover, the OP No.2 did not appear to contest the claim of the complainant and preferred to be proceeded ex-parte, for which adverse inference is liable to be drawn against OP No.2. The non-appearance of the OP No.2 despite notice shows that it has nothing to say in his defence or against the allegations made by the complainant. Therefore, the assertions made by the complainant go unrebutted and uncontroverted.

On the other hand, the version of the complainant is fully supported and corroborated by her affidavit Annexure CA, affidavit of her husband Annexure CB along with documents Annexure C-1 to C-4.

10.    In view of the fact that the OP No.2 neither responded to the notice nor has he opted to controvert the precise cognizable averments made by the complainant having a very relevant bearing upon the adjudication of the grievance, the only distilled view is that the complainant has been able to prove the genuineness of the grievance that the OP No.2 had committed deficiency in service, the manner whereof has been detailed in the complaint, as also the affidavit in support thereof. With regard to liability of the OP No.1 we may rely upon the order of Hon’ble State Commission, West Bangal in case titled as Printer Traders Pvt. Ltd. Vs. Kartick Chandra Das and others., reported in 2017(3) CLT 411, wherein it has been held that the dealer is equally responsible along with manufacturer to supply the defect free goods to the consumers so that the later get proper value of their hard-earned money. Thus, we hold that both the OPs are jointly and severally liable for the deficient services rendered by them to the complainant; hence, the complainant is entitled to relief.

11.    As a sequel to the above discussion, we partly allow the present complaint against OPs with the following directions:-

1. That the OPs will replace the Microwave Oven in question of the complainant as purchased vide bill Annexure C-1 with new one of the same model having the same features and in case, the Ops are not able to replace the same with new one then in that eventuality the OPs shall refund the amount of Rs.8990/- to the complainant without any interest.
2. The OPs shall pay lump sum amount of Rs.3000/- to the complainant on account of mental agony, harassment and as litigation charges.

12.    The OPs shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OPs. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 

Announced

09.04.2019    Dr.Sushma Garg   Dr. Pawan Kumar Saini           Satpal

                            Member              Member                              President

 

Note: Each and every page of this order has been duly signed by me.

                                         Satpal

                                         President