Orissa

Cuttak

CC/206/2013

Ramesh chandra Dash - Complainant(s)

Versus

R K Gadanaik - Opp.Party(s)

P K Singh

24 Feb 2015

ORDER

OFFICE OF DISTRICT CONSUMER DISPUTES REDRESAL FORUM:CUTTACK.

C.C.Case No206/2013

Sri Ramesh Ch. Dash,

O.T.,M.Labour Colony Qr. No.C22,

P.O/P.S:Choudwar,Dist:Cuttack.                                      … Complainant.

 

                                                                Vrs.

1.      R.K.Gadnai,

    WaterIndia,Manisahoo Chhak,

    Buxibazar,Cuttack.

 

2.    Managing Partner,

   M/s. Texmo Industries,

   P.B.No.5303,G.N.MILLS POST

   METTUPALAYM ROAD,

   COIMBATORE,INDIA.                                                              … Opp. Parties.

 

Present:               Sri C.K.Kar,President.

 Sri B.K.Padhiary,Member.

 

For the complainant:           Mr. P.K.Singh & Associates.

For the O.P No.1:                  Sri B.P.Dash & Associates.

For the O.P No.2:                  Sri N.K.Dash & Associates.

 

Date of filing:  27.09.2013

Date of Order: 24.02.2015

                                                                                JUDGMENT

Sri C.K.Kar,President.

 

This is an application U/S-12 of the C.P.Act,1986  filed by the complainant alleging deficiency in service on the part of the O.Ps.

1. The complainant constructed a house on obtaining a loan of Rs.10.00 lakhs from the Bank over plot Nos.1552/1673/2158, Khata No.281/530.  The complainant has dug a boring of 140 feet depth @ Rs.250/- per feet amounting cost of Rs.35,000/- along with the material of fibre pipe of 8 pieces @ Rs.3250/- per piece amounting Rs.26,000/- in order to get the lift water for the purpose of water supply to the rental house.  The complainant has purchased a submersible pump set amounting of Rs.19,195/- on 15.4.2013 and obtained money receipt from the O.P with the condition that the pump set shall be installed by the O.P for the purpose of lifting water.    It is alleged by the complainant that though the O.P has installed the said pump set but it was not functioning properly.  Then the complainant brought this fact to the notice of O.P to examine it by some experts.  After some days, the O.P brought some persons and they tried to bring out the water but they could not succeed.  The O.P told the complainant that the pump set is not in good condition and hence it should be brought out.  The complainant tried to bring out the submersible pump set but could not bring it out from the boring.  The complainant again requested the O.P to come and solve the matter but the O.P avoided to come and remove the defect.  The O.P told the complainant to come on 26.8.13 but did not turn up.  The complainant time and again approached the O.P but the O.P turned a deaf ear and did not do the needful as requested by the complainant to replace the submersible pump set.  Therefore the finding no other alternative the complainant approached this Forum alleging deficiency in service against the O.P and also prayed to pay compensation of Rs.90,195/- for mental agony and harassment.  Hence the case.
2. Upon notice, the O.P No.1 entered appearance and filed written version and interalia contended that the present complaint is not maintainable in the eye of law.  It is further contended that the complaint is barred for non-joinder of necessary party as the manufacturer of the submersible pump set namely Texmo Industries not being arrayed as a party.  It is further contended that all the grievances of the complainant has been attended properly by the O.P from time to time.  It is further contended that the O.P is merely a dealer of various pump set including the Texmo Industries pump set and usually sell the pump set to intending customers.  Hence he has no role to install the pump set as alleged by the complainant.  It is further contended that the complainant has been informed to contact the manufacturing company and it’s authorized service centre at Cuttack and the manufacturer assured to rectify the same.  It is further contended that the O.P No.1 is no way responsible for any negligence to rectify the problem as alleged by the complainant.  It is further contended that the complainant has to prove that the submersible pump set purchased by him has got manufacturing defect and the Company did not rectify the defect within the warranty period.  Therefore under the facts and circumstances, the O.P No.1 prayed that the complaint petition being devoid of merit should be rejected out rightly.
3. Upon notice O.P No.2 entered appearance and filed written version and interalia contended that the complaint petition is not maintainable in the eye of law.  It is further contended that there is no transaction with the O.P of any kind or any material.  It is further contended that there is arbitration clause and as such the O.P No.2 is not responsible for inaction of the O.P No.1.  It is further contended that the complainant has not lodged any complaint with O.P No.2 nor brought any manufacturing defect to their notice.  It is further contended that the O.P No.2 who is manufacturer of the submersible pump set is no way responsible as alleged by the complainant.  It is further contended that O.P No.2 is no way responsible whatsoever for any indirect or consequential damage or loss as per the warranty policy.  Therefore the under the facts and circumstances, the O.P No.2 prayed that the complaint petition being devoid of merit should  be rejected out rightly with cost.
4. We have heard the learned counsel for the complainant and O.Ps and perused the relevant documents filed by both the parties in this case.
5. Now the point for determination in this case is whether the O.Ps 1 & 2 committed any deficiency in service in not removing the manufacturing defects noticed in the submersible pump set of the complainant after its installation in his residential house purchased from the O.P No.1
6. Admittedly the complainant purchased the submersible pump set from O.P No.1 but strangely enough the complainant had not produced the warranty card issued in respect of the submersible pump set.  In absence of any warranty card no inference can be drawn as to O.P No.1 or O.P No.2 are responsible for any defect noticed in the pump set purchased by the complainant.  Since the warranty has not been produced  before the Forum for its necessary perusal, it is not possible on our part to examine the warranty period fixed to liable either on O.P No.1 or on O.P No.2 for the negligence in not rectifying the defects as alleged by the complainant.  Be that as it may, if the warranty card gives benefit to the consumer, we are with him but it is the consumer i.e. complainant who is avoiding to attend before the Forum inspite of sufficient time given to him and failed to produce the warranty card.  Under the circumstances, there is no other alternative left with us but to disbelieve the complainant’s allegation in toto as alleged in the complaint petition.  Furthermore, the complainant has not adduced any expert evidence to establish that the said submersible pump set is not functioning and it is not due to the faulty use by him.  So we are constrained to come to a specific conclusion against the O.P for want of warranty card or guarantee card and secondly no expert evidence is adduced to prove the case of the complainant.  Therefore the complainant fails to make out a case against the O.Ps that they committed deficiency in service in not rectifying the defect of the submersible pump set within the warranty period.  As such the complaint petition merits no consideration and stands rejected.

In the result, the complaint petition is dismissed on contest against the O.Ps but without cost.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 24^th day of February, 2015 under the seal and signature of this Forum.

                                                                                                                                                      (Sri C.K.Kar )

                                                                                                                                                        President.

 

                                                                                                                                                 (Sri B.K.Padhiary ) 

                                                                                                                                               Member.