Date of filing : 26-11-2012
Date of order : 11-05-2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.324/2011
Dated this, the 11th day of May 2012
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT. K.G.BEENA : MEMBER
K.T.Sudhakaran, Kanakkil, } Complainant
Kuttamath, Cheruvathur.Po.671313,
Kasaragod.Dt.
(In Person)
Proprietor, } Opposite party
Biomedicals, Cheruvathur Bus Stand,
Cheruvathur. Po. Kasaragod.Dt.
(Adv.Arjun, Hosdurg)
O R D E R
SRI.K.T.SIDHIQ, PRESIDENT
In nutshell the case of complainant is as follows:
Complainant asked a baby Teether manufactured by Johnson & Johnson company with opposite party on 21-10-2011 at about 8 PM. The opposite party then packed a Baby Teether and collected it’s cost `60/- without issuing any bill. But when he checked the teether from his home it is found to be another brand and unfit for use since its edges were sharp which may cause cuts on gums of the baby if used. Within 10 minutes he came back to opposite party and returned the product. But opposite party insulted the complainant and behaved him rudely. He refused to issue bill also to the complainant. Therefore the complainant claiming compensation and costs.
2. According to opposite party the complainant approached in a hurry and asked for the product given to the babies to bite before teething. At that time opposite party was busy in dispensing medicines to other customers so he did not answer to the query of complainant. The complainant then became angry and at that time opposite party asked what he want and on hearing the demand he immediately shown him the baby teether manufactured by Small Wonder. Then the complainant asked to open it and when the complainant was examining it after opening it opposite party again gone for dispensing medicines to others. At that time complainant asked its price and it was packed and given to the complainant with it’s bill. But within 15 minutes complainant returned with the Baby Teether and asked the refund of amount stating that its edges are sharp and cause wounds to the baby. At that time opposite party expressed his helplessness to replace it and told that when the representatives of the company, came to his shop, he will ask about the replacement. At that time Anoop and Govindan were in the shop and Govindan told that he purchased the same teether for his baby and his baby used it. Then complainant started quarrelling with him. The opposite party interfered and told that he will call the police, if he quarrel in front of his shop. Then the complainant scolded with filthy language and left the place. This was the reason for the complaint. He never asked for the Baby Teether manufactured by Johnson & Johnson company. He purchased the teether after taking it out from the cover. Had the complainant got any grievance about the manufacturing of the product then he should have impleaded the manufacturer. Further it is his duty to prove the manufacturing defect of the product and opposite party is only a dealer. The intention of the complainant is only to tarnish the image of the opposite party in the society. Hence the complaint is liable to be dismissed.
3. Complainant tendered evidence as PW1. He faced cross-examination by the learned counsel for opposite party. Exts A1 to A2 & MO-1 the baby teether marked. On the part of opposite party DW1, DW2 and DW3 examined. Both sides heard. Documents perused.
4. The issues to be settled are :
1. Whether the complaint is bad for non-joinder of necessary parties?
2. Whether the opposite party committed any unfair trade practice?
3. What order as to relief & costs?
5. Issue No.1. According to opposite party he is only a dealer and if the complainant has any complaint against the manufacturing opposite party the Baby Teether then he manufacturor should have been impleaded. This contention is not acceptable. The complaint is not only against the manufacturing defect but is against the rude and indecent behaviour of the opposite party also. Further as far as a consumer is concerned the dealer is the frontman in relation to his transaction and his privity of contract is with the dealer. Moreover, the Hon’ble Kerala State Commission has held in the case of Pioneer Motors (Pvt Ltd) V. N. Chandra Winspot Tailors & Anr reported in 2010 CTJ 344 CP(SCDRC) that dealers are usually absolved from liability in cases where manufacturing defects are alleged by the purchaser and this is not a correct approach. The dealers are as much responsible for the sale of products as their manufacturers. Therefore it is not necessary to implead a manufacturer as necessary party. Hence this issue is found against the opposite party.
6. Point No.2: The specific case of the opposite party is that complainant returned with the product Small Wonder Baby Teether and told that its edges are sharp and it cause wound on the gum of the baby if used and his wife is scolding him in purchasing it and at that time Govindan (DW2) tried to understand the complainant that he already purchased another piece of the same product earlier for his baby. Then complainant started to quarrel with him. But DW2 in cross-examination has deposed there was no issues between him and the complainant. This statement cuts the very root of the contention of opposite party that complainant and Govindan were quarrelling before his shop and hence he interfered and told that he will call the police and that was the reason for the complaint.
6 So from the evidences adduced by DW1, 2&3 it is clear that opposite party was planting DW2 & DW3 as witnesses to foist a false defense to negate the case of complainant and they were not in the premises of the opposite party’s shop when the complainant came to purchase the Baby Teether and returned it. The further defense of opposite party is that the complainant opened the cover of the Baby Teether and after examination of the same he purchased it. The said defense is also not appears to be true. Usually no seller will allow to open the well adhered transparent cover to check the product before purchasing it. If some one do so no other customer will purchase it if the pack is found opened. Hence this contention is also not believable.
7. From the discussion above it is clear that opposite party committed unfair trade practice and deficiency in the service envisaged under Consumer Protection Act.
8. The opposite party claims to be a social figure and bearing several official posts of different organizations. Such a seller/trader ought to have been more polite when behaving with customers and should have been more consumer friendly in dealing consumer complaints. At this juncture it is worth to hearken the wisdom of our father of nation. Mahathma Gandhi who considered commerce without morality as a deadly sin.
“A customer is the most important visitor on our premises. He is not dependant on us. We are dependent on him. He is not any interruption in our work. He is the purpose of it. He is not an outsider on our business. He is a part of it. We are not doing him a favour by serving him. He is doing a favour by giving an opportunity to do so”.
9. Issue No.3 Reliefs & Costs: The complainant who asked for a baby teether manufactured by Johnson & Johnson company was dispensed with another make and brand of baby teether which was found not fit for the use of the baby as its edges are seen sharp. MO-1 is the baby teether with sharp edges. The opposite party ought not have supplied any other product other than the product asked by consumer. In common parlance It is a custom of the medical shop pharmacists and shop owners to dispense alternative brand medicines than that is prescribed by doctors if the medicines prescribed by the doctors are in their stock. The opposite party not only supplied an alternative baby teether but when it is returned he acted in a hostile manner to the complainant. We do not find any reason to disbelieve the testimony of PW1 in this regard. The act of opposite party caused loss hardships and mental agony to the complainant. Therefore opposite party is liable to compensate the complainant.
In the result, complaint is allowed and opposite party is directed to refund the price of baby teether `60/- to the complainant together with a compensation of `5,000/- and a cost of `2000/-. Time for compliance is 30 days from the date of receipt of this order. Failing which `5,000/- will carry interest @ 9% from the date of complaint till payment. After paying the amount to the complainant on application opposite party can take back the Ext.MO-1 baby teether produced by the complainant before the Forum.
MEMBER MEMBER PRESIDENT
Exts.
A1. No.13147 bill issued by OP for an amount of 60/-
A2. Photocopy of receipt issued by Drugs Inspector, Kanhangad.
MO-1. Teether.
PW1.Sudhakaran.K.T.
DW2. Govindan.
DW1. Pavithran.P.P.
DW3. Anoop.M.,
MEMBER MEMBER PRESIDENT
Pj/
