<br /> <br /> By SRI.K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> This is a complaint filed by the complainant for returning of the cost of Mixi purchase, compensation and cost.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The friend of the complainant informed him that he can purchase consumer durable items from the first opp.party at wholesale rate under their Multi Trade Marketing Scheme. Accordingly the complainant purchased a Mixie, [Sharp Mixie from the company’s Franchisee shop owned by the 2nd opp.party, on 26.1.2006 for Rs.2300/- as per the bill No.7. The complainant was informed by the franchisee that the product is that of Sharp Company of Japan. When the complainant put to use the mixie it is noticed that the same was not working properly. Thereupon the matter was informed to the franchisee and he took back the defective mixie to opp.party 2 who supplied a new mixie of the same brand to the complainant. When the replaced mixie was put to use the same was also found no properly working and not fit for the purpose for which it was purchased. The complainant took the Mixie to an electrician known to him who after checking its performance and the materials used in it informed him that it is a sub standard product. It was also informed that the Sharp Company of Japan do not manufacturer and sell such cheap substandard product in the Indian market. The complainant took the mixie to the franchisee again with a request to take the mixie and pay back the amount of Rs.2,300/- which the 2nd opp.party refused to do. Thereafter the complainant informed the matter to the first opp.party by the way of registered notice. But he also did not respond to the request. By supplying a faulty substandard mixie the opp.parties cheated the complainant. Hence the complaint <br /> <br /> The first opp.party filed a version contending as follows: The complaint is not maintainable either in law or on facts. The complaint is liable to be dismissed as manufacturer of the mixie is not made a party. The averments in the para first is not fully correct and hence denied. The allegation that the product which has been defective and the same was replaced by the franchisee on the very next day is also notcorrect The defects was not manufacturing defect and it is due to the mistake in the handling of the mixie by the complaint. The mixie was not replaced. The allegations that the mixie was again replaced as the same was not working on the next day is also not correct. The allegation in the 2nd para of the complaint is false and hence denied. The allegation that the mixie was a substandard one and its quality is very poor are also false and hence denied. The averment that the opp.party is giving wrong information and propaganda that they will be supplying quality consumer durable items at most affordable rate and thereby cheating the complainant by supplying a defective product at high price is false and hence denied. The allegation that the opp.party refused to take back the defective material during the warranty period is in correct. The opp.party has not cheated the complainant. If the warranty conditions are satisfied by the complaint he will get the benefit of the warranty. At the time of delivery of goods a warranty card is also given to the complainant a copy of the same is produced. The servicing centre of the manufacture company is functioning at Kollam and the complainant can very well avail the service from that service centre. The opp.party is not liable to compensate the complainant for his travelling expense. The complainant is filed on an experimental basis to harass the opp.party Hence this opp.party prays to dismiss the complaint.<br /> <br /> The 2nd opp.party filed a separate version contending as follows: The complaint is not maintainable either in law on or facts. The allegation that the complainant purchased a Mixer Grinder from the 2nd opp.party on 26.1.2006 is admitted and at the time of delivery working of the mixie was displayed to the complainant who was fully satisfied and became aware of proper use and working condition. The cost of said mixie is Rs.2290/- The allegation that on the very next day it was taken back due to defect to the same branch and was supplied another mixe is denied. The defect in the mixie was not manufacturing defect but it was due to mistake in the handling of the mixie by the complainant. The 2nd opp.party is only a franchise of Good Way Business Corporation Ltd. They are supplying many products to the 2nd opp.party and this opp.party is not fully aware of the originality or quality. They are only a dealer of Good Way Business Corporation Ltd and he is not responsible for any loss or damages to the products issued through this opp.party. The manufacturer is responsible for the defect if any of the product. The allegation that the mixie was replaced on the next day is false. The 2nd opp.party supplied an original conditioned product to the complainant. If the mixie was not properly working it would have to be reported to the opp.parties before its repair. This opp.party would have been responsible. The allegation that this opp.party refused to take back the defective material during the warranty period is incorrect. The allegation that the registered notice was issued to the 2nd opp.party and after receiving did not respond is incorrect and hence denied. The allegation that the product introducing to the consumer by a wrong propaganda that the mixi is from the famous shard company is also incorrect and hence denied. The allegation that the opp.party is giving wrong information and propaganda that they will be supplying quality consumer durable items at most affordable rate and there by cheating the complainant by supplying a defective product at high price is false and hence denied. This opp.party has not cheated the complainant. If the warranty conditions are satisfied by the complainant he would have benefited. The manufacturer is also not made a party and therefore the complaint is bad for non joinder of necessary party. There is a service centre of the manufacturers company functioning at Kollam and the complainant is fully aware of this fact and he could approach them when the mixie was damaged. This opp.party made arrangements to rectify all the defects of products which are supplied by them without delay. But there is nobody having any complaint regarding the products issued through this opp.party. This opp.party is not bound to compensate the complainant for any expenses incurred by him. This complaint is an experimental one. Hence this opp.party prays to dismiss the complaint.<br /> <br /> <br /> <br /> <br /> Points that would arise for consideration are:<br /> <br /> 1. Whether there is any deficiency in service on the part of the opp.parties<br /> 2. Reliefs and costs<br /> <br /> <br /> <br /> For the complainant PW.1 is examined. Ext.P1 to P3 are marked.<br /> <br /> <br /> <br /> Points1 and 2:<br /> <br /> The complainant has filed proof affidavit in which he has stated that he purchased a mixer grinder from the Shop of opp.party as per Ext.P1 on 26.1.2006 and opp.party 2 explained to him the functioning of the same and displayed its working. But when he put to use the mixe at home it was found that it is not suitable for the purpose for which the same was purchased. On informing this matter opp.party 2 gave another mixie which was also not working properly. However, when the complainant was cross examined he has stated that he has purchased the mixie from one Vijayan who is a friend of his and asserted that the same was not purchased from the shop of opp.party.2 He has further stated that the mixie was put to use at his house by the said Vijayan and that he had paid the prize of the mixie to the said Vijayan. At the close of cross examination he has asserted that he did not purchase the mixie from the shop of opp.party 2. To use his own words “ Mixie BlR 2nd opp.party ujH rjr\rkA Srgj}k ilbjuj}jh\h” Therefore, as argued by the opp.party the complainant cannot be said to be a consumer of the opp.parties as defined in sec. 2 [1][d] of the Consumer Protection Act.<br /> <br /> Now the question is whether there is any deficiency in service on the side of the opp.parties. As a matter of fact the warranty card of the mixie is not produced for reasons best known to the complainant. It has also come in evidence that the mixie was taken to an electrician before production of the same to the 2nd opp.party. It is also worth pointing out in this context that PW.1 who has admitted in cross examination that the mixie had one year warranty, did not produce the warranty card. His version that opp.party2 has taken back the warranty card cannot be believed. All these would indicate that there is violation of warranty conditions. It is well settled that when there is violation of warranty conditions it cannot be said that there is deficiency in service. For all that has been discussed above we find that the complainant is not a consumer within the meaning of sec. 2 [1] [d] of the Consumer Protection Act 1986 and that there is no deficiency in service on the side of the opp.parties. Point found accordingly.<br /> <br /> <br /> In the result the complaint fails and the same is hereby dismissed. No. costs.<br /> <br /> <br /> Dated this the 1st day of November, 2008 <br /> <br /> <br /> <br /> I N D E X<br /> <br /> List of witnesses for the complainant<br /> PW.1. – Thankachan<br /> <br /> List of documents for the complainant<br /> P1.- Bill dated 26.1.2006<br /> P2.- Letter dated 6.4.2006<br /> P3. – Acknowledgement card. <br />