Orissa

Rayagada

CC/69/2017

Sri Satish Kumar Fundanani - Complainant(s)

Versus

Proprietor Sagar General Store - Opp.Party(s)

Self

26 Dec 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

                                      PO/DIST; RAYAGADA,   STATE:  ODISHA ,Pin No. 765001

C.C. Case  No.   69 / 2017.                             Date.    26.        12   . 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                                   President

Sri GadadharaSahu,                                                                        Member.

Smt.Padmalaya  Mishra,.                                                              Member

 

Sri Satish Kumar  Fundanani @ Ajaya, S/O:Sri  Kishore Kumar Fundanani, Main Road,  Po/  Dist:    Rayagada, State:  Odisha.                                                               …….Complainant

Vrs.

1.The Proprietor, Sagar General  Store, Main Road, Rayagada(Odisha).

 

2.The  Service Manager, Customer Service Centre, Liyaqat Ali Electronics, Kent &  Usha  Service centre, Hathipathar Road,  Po/Dist: Rayagada.        

 

3.The Care  Manager, Kent RO Sysems Ltd., A -2, Sector-59, Noida 201309, State Utter  Pradesh.                                                                   .…..Opp.Parties

Counsel for the parties:                                 

For the complainant: - Sri R.K.Senapati, Advocate, Rayagada

For the O.P No.1 & 2  :- Set exparte.

For the O.P.No.3:- Authorised  agent of the  O.P. No.3.

                                                JUDGEMENT.

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non refund of price of the Kent RO Water purifier set a sum of Rs.19,500/- towards found defective during warranty period     for which  the complainant  sought for redressal of the grievances raised by the complainant. The brief facts of the case are summarized here under.

The complainant had  purchased  the  Kent RO Water Purifier bearing Pearl Model from  the O.P. No. 1  on payment of consideration   a sum   for Rs.19,500/- to the  O.P. No.1.   The above set becomes  found defunct on Dt. 23.10.2016 i.e. the water purifier does not starts, and not delivered the  water properly, the inlet of the purifier receives the water and does not deliver the purified water, and more over the said water purifier is a defective water purifier. The  complainant  in their petition  mentioned that  he had   complained   to the  O.P. No.2`(Service centre of the O.P. No.3)  regarding  defective  of the  above set  in turn  the O.P. No.2 attended  for service .    Inspite of repairing the set  it is not at all in working  condition. So the  complainant  had requested    the O.P. No.2 & 3   to replace or refund purchase  price of the above set but the O.P. No.2     turned deaf ear. Hence this C.C. case.

Upon  Notice, the O.P No.  1 & 2  neither entering in to appear before the forum nor filed their  written version inspite of more than  10 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No. 1 & 2.  Observing lapses of around 11/2 year  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.Ps 1 & 2. The action of the O.P No. 1 & 2  are against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P No.  1 & 2 was set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

Upon  Notice, the O.P No. 3   put in their appearance and filed  written version through their authorized agent working as Area Service Manager in which  they refuting allegation made against them.  The O.P No. 3   taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P No. 3 .   Hence the O.P  No.  3 prays the forum to dismiss the case against  them  to meet the ends of justice.

Heard arguments from the learned counsel for the    complainant      and from the O.P No.3.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                                    FINDINGS.

                There  is no dispute that   the complainant had  purchased  the  Kent RO Water Purifier bearing Pearl Model from  the O.P. No. 1  on payment of consideration   a sum   for Rs.19,500/- to the  O.P. No.1 (copies of the  Retail invoice No. 442 Dt.26.10.2016    inter  alia   warranty  card  is in the file which is marked as Annexure-I).

                The main grievances of the complainant is that due to non  rectification of the  above  set perfectly   he wants  refund  of price of the above set. Hence this C.C. case.

                The O.P. No.3 in their written version contended that  the FOC services  were always given to the complainant during the warranty period of the machine and no charges were ever taken for replacement of spare parts, if any, but the  complainant started pressurizing the O.Ps from February, 2017 onwards for replacement of his  machine alleging manufacturing defect. On  Ist. complaint No. 170204-03204 was lodged  by the   complainant the customer care centre  on Dt. 4.2.2017. Though  the R.O. was  made  operational and a filter was changed FOC by the service  technician but the complainant started asserting  for  replacement  stating that the RO  is  defective   and has same manufacturing defect.  Subsequently the other complaint  No. 170421-05020   Dt. 21.4.2017 was also attended by the  O.P. No.2  but the complainant never showed his satisfaction  with the repair just because he was  insisting on replacement of  the above set.  The last call was registered on Dt. 19.7.2016   by the  complainant but   had not allowed  the service technician to check  his machine.   The O.P. No.3  in their written version   further contended that  the changes of   filters /membrane   in   the   RO   can not be  termed  as defect in  RO machine as their frequency of cnange depend  on the quality of    raw water used  for  filtration and quantity  of daily   consumption of the filtered water.  If the raw water  contains more  dirt and other impurities, it will block  the  micro-size  pores of the filters/membrane early  and they   would have to be changed.  The O.P. No.3  made sincere efforts to redress the grievances of the complainant  if any,  prejudice to its legal  rights  and contention even after receipt of notice from the  forum, but the complainant refused    for further repair of the machine.      

In this context  this forum for better appreciation relied citations which are mentioned here to support the present case in hand.

                It is held and reported  in C.P.R. 2009 (4) page No.88  in the case of  Hyundai Motor India Ltd. Vrs. M/S. Om Prakash Kidar Nath   the Hon’ble State Commission, Punjab   where  in observed  “Manufacturing  defect(s) should be repaired or removed. Replacement or refund of price is not justified in every case”.

                Further it is held and reported in   National Commission and Supreme Court on Consumer Cases  1986-94 page No. 1367 (NS)   in the case of  M/S. Tata Engineering  & Locomotive Co. Ltd. And another  Vrs. M.Moosa the  National Commission where in observed  “If the manufacturing defects pointed out then the  manufacturers  should be directed to repair the manufacturing defects and not replacement of the  vehicle or refund  of its price. 

Again  it is settled proposition of law as held in the case of Ravneet Singh BaggaVrs. KLM Royal Dutch Airlines, 1999(3) CPJ- 28 (SC), it was  held that the burden of proving  the  deficiency in service  is upon the   person who alleges it.  In case of   bona  fide    disputes to willful fault,  imperfection, shortcoming or inadequacy in the quality,  nature or manner of performance in the service can be informed. If on facts it is  found that the person or authority rendering service had taken all  precautions and considered all relevant facts and circumstances in the  course of the transaction and that their  action or the final decision was  in good faith, it can not be said that there  had been any deficiency in service in the case in hand the complainant has failed to prove any  deficiency in service on the part of the O.Ps.

Further in the case of   Maruti Udyog Ltd. Vrs. Susheel  Kumar Gabgotra and others (AIR-2006)S.C 1586 where in the Hon’ble Supreme Court observed “Warranty conditions clearly refers to replacement of defective part not the  car – Not a case of silence of a contract of sale to warranty”.

Again in the case of Bajaj Tempo Ltd Vrs. Shri  Ajwant Singh & Another reported in  2014(3) CPR- 724  N.C.,  the  Hon’ble National Commission opined that “Manufacturing defect must be proved by expert opinion”.

The O.P. No. 3  vehemently argued that in this case there is no defect in the  above set of the complainant, but the complainant has filed this fabricated complaint only to  tarnish the reputation of the O.P No.3 within  warranty period    and to secure the unlawful gains from the O.Ps.

Admittedly the  purchase of the above  set   by the complainant is not denied.  The O.Ps have given an undertaking that they are  ready to  give the free  service and change the parts  with out charging  any price  as per the conditions of the warranty given to the said set within warranty period  but the  complainant    had not allowed  the service technician    of the O.P  No. 3  to check  his machine.

In the present case  in hand the complainant   has failed to establish any negligence and deficiency in service on the part of the  O.Ps.  Further  we find that  there is no reliable expert evidence to hold that   the above set suffered from any manufacturing defect    inter alia no  sustentative pleading have been incorporated  in the complaint to prove negligence on the  part of the   O.Ps. 

This forum agree with the views taken by the O.P No.3  in their written version. 

Keeping in view all the facts and circumstances, we are of the decisive opinion that the instant case  is devoid  of merit.  Further  this forum do not find any other legal issue involved in the matter. In the circumstances, we do not see any reason which would call  for our interference.

So  to meet the  ends of justice    the following order is passed.

                                                                                                O R D E R

                In  resultant the complaint petition  stands  disposed off on contest against the O.Ps. 

The O.P No. 3  is  directed to remove all  the defects  of the above  set including  replacement of defective parts if any free of cost enabling the complainant to use the same in perfect running condition like a new one  if the complainant  approached  the O.Ps  to rectify the defect of his   set  and shall provide all sort of after sale service to the complainant as per the terms and conditions of the  warranty of the afore said   set  with  extended further one year fresh warranty.  There is   order to pay  Rs.1,000/- towards litigation  expenses.

Serve the copies of the  above order to the parties as per rule.

                Dictated and corrected by me.

            Pronounced in the open forum on     26th.      day  of    December, 2018.

MEMBER                               MEMBER                                                       PRESIDENT

 

 

 

                 

 

 

 

 

 

 

 

 

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