Sri Satish Kumar Fundanani filed a consumer case on 26 Dec 2018 against Proprietor Sagar General Store in the Rayagada Consumer Court. The case no is CC/69/2017 and the judgment uploaded on 11 Mar 2019.
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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