Assam

Nagaon

CC/28/2022

GUNA SAIKIA, SON OF DADHIRAM SAIKIA - Complainant(s)

Versus

PARESH KALITA, PROPRIETOR, KARENG - Opp.Party(s)

SATYA PRASAD SARMAH

14 Nov 2024

ORDER

J u d g e m e n t

1. This complaint petition under section 35 of the Consumer Protection Act, 2019, has been filed by Sri Guna Saikia (hereinafter referred to as the petitioner) against the opposite party Paresh Kalita (hereinafter referred to as the opposite party), alleging the deficiency in service against the above opposite party arising out of non-refunding the purchase price praying for recovery of money, compensation and other reliefs.
2. Fact and circumstances for filing of the aforesaid petition as narrated by the petitioner are as follows:-

The complainant purchased a 1.5 ton air conditioner of Voltas Brand bearing model number EU183VXAZP dtd. 16.07.2022 from KARENG Electronics for a consideration of ₹ 36,500/-. After installation and using the air conditioner, the cooling system of the Air Conditioner worked for 2 (two) days only. The petitioner then complained about the problem to the opposite party, i.e. the seller of the air conditioner. On the request of the petitioner, the opposite party sent 2(two) mechanics to repair the air conditioner but it worked 3-4 days only. Thereafter, the petitioner again informed about the problem to the said opposite party and the opposite party again sent 2(two) mechanics to the petitioner to repair the air conditioner. Then again, the same occurrence started happening and thus the petitioner requested the opposite party, i.e. seller of the air conditioner to replace the malfunctioned air conditioner with a new one as there is a provision of replacement.  However, the opposite party did not take any action in this regard. A pleader’s notice dtd.11-10-2022 was sent to the opposite party in this regard but the opposite party neither took any action nor gave any response to the aggrieved. Thus, being aggrieved by the conduct of the opposite party, petitioner filed this complaint petition praying for relief as under: -

a) To direct the opposite party for payment of ₹ 37,500/- as sum assured;.

b) To direct the opposite party for award an interest of 10% per annum on the sum assured from the date of the installation; 

c) To a compensation of ₹ 50,000/- for harassment and mental agony and for ₹ 20,000/- as the cost of litigation; and

d) Any other relief or reliefs to which the Commission deemed fit, just and proper.

 

3. On receipt of the notice, the opposite party did not turn up before this commission to contest the proceeding by filing a written statement. Hence, the case proceeded ex-parte against the opposite party.
4. In the course of ex-parte hearing, the petitioner submitted his evidence- in - affidavit of his own and also exhibited 02 (Two) documents, Ext.-1 is the Challan/Cash Memo of the air conditioner and Ext.-2 is the warranty card. As the opposite party did not turn up to contest the case, we have no other alternative materials to counter or rebut the complaint petition.
5. We have heard the petitioner.
6. Perused the pleadings and evidence in record.
7. On perusal of the evidence in record, it appears that it is an admitted fact as emerged from the complaint petition and the documents submitted by the petitioner that the petitioner purchased a Voltas air conditioner bearing model number EU183VXAZP dtd. 16.07.2022 from the opposite party for a consideration of ₹ 36,500/-. But the petitioner has neither submitted any documents or other evidence regarding the repairing of the air conditioner nor placed any expert report to corroborate his claim that there are any inherent defects in the air conditioner. It has been held by Hon’ble National Commission in Sabeena Cycle Emporium Chennakhada -Vs- Thazes Ravi M.R. Pacchavilla Veder Ezkhone P.O (1992) ICPJ 97, wherein it was held that “where a complainant alleges defects in the goods, forum is bound to determine this fact on the basis of clear evidence or by way of expert evidence”. Thus, initial onus to prove that the air conditioner suffered from any inherent or manufacturing defect is upon the petitioner. Although from the reading of the complaint petition as well as his deposition, it appears that the air conditioner was repaired many times, but the petitioner did not provide any expert report or further evidence to substantiate his claim of a manufacturing or inherent defect. The Hon’ble National Commission in M/S Bharath Earth Movers Limited -Vs- Thiru R Sekar & Anr. Case No.F.A.  No.157/2019, where it is held that “The State Commission found an inherent  manufacturing defects without following Sec 3 (1) (C) of the Act and without  specifying if the machine suffered from defects alleged in the complainant or if  any manufacturing defect allegation were proved. The commission emphasized that the State commission awarded relief for deficiency without satisfying procedure u/s Sec 3(1) (C) of the Act. The commission observed that the State Commission’s order was liable to be set aside as it was based on a fallacious appreciation of facts to conclude the machine suffered an inherent manufacturing defect in the absence of any expert opinion. Hence the Hon’ble National Commission allowed the dealer’s appeal and set aside the State Commission’s order”.
8. It is evident from the record that the petitioner purchased an air conditioner from the opposite party. The Challan/Cash Memo (Ext.-1) submitted by the petitioner also proved the above facts. The main allegation of the petitioner is that the air conditioner, which was purchased from the opposite party, is defective and those defects could not be repaired.  To prove this fact, no substantive evidence has been produced by the petitioner.  The petitioner has tendered his own affidavit, which is as per the averments in the complaint petition and exhibited only 02 (Two) documents, i.e. Ext.-1 is the Challan/Cash Memo of the air conditioner and Ext.-2 is the warranty card. To establish any deficiency in service from the part of the opposite party, the petitioner must substantiate his claim with proof of the same. For proving the facts of manufacturing defects, expert opinion is necessary which is lacking in the present case.
9. The petitioner has also argued that the petitioner has suffered mental agony and harassment and also financial loss because the opposite party had supplied a defective air conditioner.  The petitioner had argued that the petitioner had purchased an air conditioner from the opposite party, but after a few days the air conditioner malfunctioned. He also argued that a pleader’s notice was sent to the opposite party to either replace or refund the price of the air conditioner. Hence, the Comp is entitled to get compensation for the defect in the air conditioner.
10. A perusal of case record reveals that the name of the manufacturing  company has been mentioned in the Challan/Cash Memo ( Ext.-1) and the petitioner also exhibited the warranty card ( Ext.-2) of the air conditioner, wherein it is stated that  the repair or replacement of any parts of the air conditioner under the petitioner’s entitlement would be carried out by the nearest Voltas service Station but  surprisingly the petitioner has neither impleaded the manufacturer as a party in this complaint  petitioner nor submitted any documents to show that the petitioner contacted the manufacturer to repair his air conditioner.  Also, the warranty card which is produced by the petitioner in support of his case which is exhibited as Ext.2 is given by the company i.e., the manufacturer not by the seller. Thus, the Voltas Company being the manufacturer of the air conditioner, ought to have been impleaded as a necessary party in this complaint petition. However, if there is any defect in the air conditioner, the manufacturing company is liable, who is not a party in this case.  Hon’ble National Commission in Consumer Case No.139 of 2014 case titled DR.  VINITA SINGH -Vs- PARASVNATH DEVELOPERS LTD. AND OTHERS,  decided on 10/03/2022 categorically stated that ‘’we hold that the consumer  complaint is not maintainable due to non-joinder of necessary party, complaint is therefore dismissed as not maintainable”.
11. After going through the record, we find that regarding the issue of non-joinder of the necessary party, it is necessary to mention here that the petitioner bought the air conditioner from the opposite party i.e. the seller. Accordingly, the opposite party issued Challan/Cash Memo against the purchase of the said air conditioner which was not working properly and got defective during the warranty period. Admittedly, the grievance of the petitioner is with regard to the defective air conditioner, which is manufactured by the Voltas Company.  Thus, the present complaint petition is not admissible in view of the National  Commission Judgement titled N.C Singhal -Vs- Dr. L. M. Prasad reported as 2003  (1) CPR 275 (NC) held that “a complaint must fail for non-joinder of a necessary  parties”. The Hon’ble Supreme court has categorically held in Moreshar Yadaorao Mahajan -Vs- Vyankatesh Sitaram Bhedi (D) Thr LRs. And others, 2022 AIR (SC) 4710 that “if a necessary party is not impleaded the suit itself is liable to be dismissed”.
12. Thus, after considering the entire facts and material available in the record, this commission finds that the complaint petition is devoid of any merit, as the petitioner has prima facie failed to establish that there was a deficiency in service on the part of the opposite party. That being the position, we are constrained to hold that it is not possible for us to give any relief to the  petitioner.at present and therefore, we have no other option but to dismiss the complaint petition on the ground of non-joinder of necessary party and also for  not submitting  any expert report relating to the defective air conditioner.
13. Accordingly, the prayer made by the petitioner U/S 35 of the Consumer   Protection Act, 2019 is dismissed without any cost.
14. Inform the party concerned.

Given under the hand and seal of this Commission, we signed and delivered this Judgement on this 14th day of November, 2024.