PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding defective wrist watch sold by the Opposite Parties to the Complainant.
The facts of this complaint as stated by the Complainant are that, Opposite Party No.1 is the Authorized Agent/Representative of Rolex SA who is the manufacturer of the Rolex Watches. Opposite Party No.2 is the Authorized Service Centre of Opposite Party No.1 and Opposite Party No.3 is the Dealer of Opposite Party No.1. The Complainant purchased a Rolex GMT Master II watch from Rolex SA Geneva of which Opposite Party No.1 is the manufacturer with guarantee of two years on 05/08/09 from Opposite Party No.3, who is the dealer of Opposite Party No.2. Opposite Party No.2 has issued receipt for the said watch for Rs.2,80,000/- on 05/08/2009. Payment was made by cheque. Opposite Party No.2 also issued guarantee for two years.
2) The relevant portion of the guarantee reads as follows -
“Rolex SA certifies this watch to be in perfect condition and guarantees its dependable functioning for a period of two years from the date of purchase.”
3) It is further stated by the Complainant that the Rolex watches have the worldwide reputation that they are reliable and sturdy. Its official chronometer certifies that “For 360 hours, in five different positions and at three different temperatures, the movement of this Rolex Chronometer has successfully completed all the timekeeping tests carried out by Swiss Institutes for official chronometer testing (C.O.S.C.). This movement has therefore, earned the title of officially certified Swiss chronometer.” The said Rolex was required for accurate time in the occupation of the Complainant being the captain of the ship.
4) The Complainant has further alleged that, the reputed watch was found loosing 6-7 seconds every day from the day of purchase. He was checking the timing of this watch with GPS signals twice daily. This was not expected from such a reputed watch. Therefore, after observing it for one month he approached Opposite Party No.3. The watch was given to Opposite Party No.3. Opposite Party No.3 kept it for 45 minutes ad returned to the Complainant. Opposite Party No.3 told the Complainant that it is ok. But it was found losing 4 seconds after working for 4 days. From Dec. 2009 to April, 2010 he resumed his job on sea. During this period the watch was losing 7-8 seconds every day. The Complainant alleged that such time keeping of the said watch was causing errors in the working of the ship.
5) The Complainant has further stated that in May, 2010 he returned to India and got the glass of the watch replaced by Opposite Party No.3 as the said watch had a minor crack to its glass. For this repair of the glass the Complainant paid Rs.8,500/- to Opposite Party No.3 vide receipt No.129465 dtd.13/05/2010, as the guarantee excludes normal wear & tear, loss, theft, or damage due to mistreatment. At this time the Complainant showed dissatisfaction about the working of the said watch but no action was taken by Opposite Party No.3. At this time also the watch was losing 7 seconds all the time.
6) The Complainant further averred that he again joined his ship job on 25th August, 2010. The watch continued to lose timing. Finally it stopped totally. He returned to India on 20/02/2011 and on the same day he returned the said watch to Opposite Party No.3. Opposite Party No.3 assured him to do the best but till today the watch is with Opposite Party No.3. On the same day i.e. on 22/02/2011, he wrote a letter to Rolex SA, Head Quarters in Geneva narrating the entire episode. Opposite Party No.1 replied vide its letter dtd.10/03/2011. In this letter Opposite Party No.1 has praised the quality of the Rolex Watches manufactured by it. It has further added that the watch is undergoing mandatory QC procedure to meet up to our severe expectations. Your Rolex will henceforth perform to your entire satisfaction and that it will be your faithful companion for many years of unfailing service.
7) Opposite Party No.3 also replied by its letter dtd.25/03/2011 and informed the Complainant that the said watch was readjusted as per the specification of the Caleber prescribed by Rolex Geneva, checked for timing ad power reserve and it is performing within the specified norms.
8) The Complainant was not satisfied with the letters of the Opposite Party No.1 & 3. It appears that even he has not verified whether there is any truth in these letters which say that the watch is performing within specified norms. The Complainant has directly alleged that the watch had inherent defect. The Complainant then stated that there was no question of taking back the repaired watch from Opposite Party No.3. The Complainant demanded new defectless watch. The Complainant wrote a letter dtd.27/03/2011 addressed to Opposite Parties reiterating his demand. Then Complainant sent a legal notice to the Opposite Parties. Opposite Party No.1 replied the notice and informed that the watch is in perfect condition and ready for delivery. The request of the Complainant to replace the watch or refund the price amount was turned down by the Opposite Party No.1. Thereafter the Complainant refused to accept the repaired watch as he has demanded a new defect free watch or refund of the cost of the said watch.
9) The Complainant has further added that thus, the watch is defective and hence, he has prayed for replacement of a new defect free Rolex watch of the same make or reimbursement of Rs.2,80,000/-, the price of the said watch with interest, one lac Rs. compensation for mental agony, etc. ad cost of the complaint.
10) The Complainant has attached the xerox copies of the following documents alongwith his complaint –
a) Receipt dtd.05/08/09 of Rs.2,80,000/- issued by the Opposite Party No.2.
b) Guarantee Card.
c) Receipt dtd.13/05/2010.
d) Letters dtd.22/02/2011 & 10/03/2011.
e) Letter dtd.25/03/2011.
f) Letter dtd.27/03/2011.
g) Notice dtd.20/05/2011.
h) Reply to notice dtd.17/06/2011.
i) G-mail dtd.22/06/2011.
11) The complaint was admitted and notices were served on the Opposite Parties. Opposite Party No.1 filed their preliminary objection wherein it denied the allegations mentioned in the Complainant and stated that it is not concerned with the consumer dispute. Opposite Party No.2 also filed its say and stated that it has no role in this case. It is not a manufacturer, or seller, nor service provider. It is further pointed out that the Complainant has not produced any expert opinion about the defect in the watch. Complainant has not made any complaint till 13/05/2010. Lastly on 22/02/2011, for the first time, the watch was brought to Opposite Party NO.3 with complaint of losing time and stopping. The Complainant has never bothered to collect the watch which was given to Opposite Party No.3. The reply is supported by the affidavit.
12) Opposite Party No.3 also filed separate reply to the complaint. Opposite Party No.3 reiterated the points mentioned by Opposite Party No.2 in respect of experts opinion about the manufacturing defect. The Opposite Party No.3 has vehemently stated that the said watch is not defective. However, Opposite Party No.3 has admitted that the watch was purchased on 05/08/09 with two years guarantee. The Opposite Party No.3 has also pointed out that the complaint has been filed by the constituted attorney who has never worn the said watch, who has no personal knowledge of the said watch, its defects and implications of losing time by the said watch. Opposite Party No.3 has also admitted and stated that the Complainant had brought the said watch in May, 2010 with broken glass. Even at that time he did not complain about the losing time. The Complainant had not made ay complaint till 22/02/2011. The Opposite Party No.3 has also asserted that at this time, the watch was adjusted and was found to be working perfectly. The adjustment was done free of charge. Thereafter, instead of getting back the watch and even verifying if it is working properly, he indulged in the correspondence with Opposite Party No.1. It made repeated calls to the Complainant to collect the said watch but Complainant ignored to do so.
13) Thereafter, the Complainant filed his reply to the preliminary objection (reply) of Opposite Party No.1, wherein he has reiterated the facts mentioned in the complaint and denied the points raised by the Opposite Party No.1. He has also established the relations of the Opposite Parties as Opposite Party No.1 being authorized representative of Rolex SA Geneva. Complainant also filed affidavit of evidence on 13/01/2012 wherein he again reiterated the allegations of defective watch, deficiency in service and unfair trade practice. Thereafter Opposite Party No.1 filed its written statement wherein it has denied the allegations mentioned in the complaint. Written statement is supported by affidavit of Yogesh L. Shah. The Complainant has also filed his affidavit of evidence in respect of written version of Opposite Party No.1 wherein he stated that the letter dtd.10/ 03/2011 clearly shows that the Opposite Party No.1 is the authorized representative of the manufacturer Rolx SA Geneva. All the Opposite Parties filed their affidavits of evidence and written argument.
14) We heard the Ld.Advocate Smt. Thakoor for the Complainant, Ld.Advocate Shri. A. Mehta for the Opposite Party No.1 and Ld.Advocate Tarsem Sing for the Opposite Party No.2 & 3. We also perused all the papers filed by the parties and our findings are as follows –
The Complainant had purchased Rolex GMT Master II wrist watch from Opposite Party No.3. The consideration of Rs.2,80,000/- was received by Opposite Party No.2 through a cheque. Opposite Party No.1 has given reply to the Complainant’s letter dtd.22/02/2011 vide Opposite Party No.1’s letter dtd.10/03/2011 in respect of the alleged defective watch through the Complainant and addressed his grievances to the Rolex SA Geneva. The said watch was purchased by the Complainant on 05/08/09 under two years of guarantee. The important provision of this guarantee is “Rolex SA certifies this watch to be in perfect condition and guarantee its dependable functioning for a period of two years from the date of purchase.”
“The guarantee excludes normal wear and tear, loss, theft, or damage due to mistreatment”, etc.
15) The Complainant has alleged in his complaint that the said watch was losing 6-7 seconds every day from the day it was purchased. If this is true then why he did not returned the said watch on 06/08/09 itself ? It is the bare statement of the Complainant that he observed this shortcoming of the watch for one long month and then approached to Opposite Party No.3. The Complainant has not mentioned the date on which he approached Opposite Party No.3 with this grievance. Then the Complainant states that the Opposite Party No.3 kept it for 45 minutes and returned it to the Complainant stating that the watch is normal. The Complainant has failed to produce any document, job sheet, etc. for such his approach to Opposite Party No.3 after one month after the purchase. The Opposite Party No.3 has vehemently denied this allegation. The Opposite Party NO.3 has specifically stated that the watch was brought to it after 9 months for replacing the glass of the watch. At this time also the Complainant has not mentioned about losing of any seconds. Only on 22/02/2011 the Complainant brought the said watch with complaint that it stopped working. The watch was accordingly adjusted and checked. It was found working perfectly. Irrespective of the fact that it was adjusted and found working accurately, it is clear that the Complainant approached the Opposite Party No.3 on 22/02/2011 with complaint of losing second and stopping it.
16) Therefore, from the above facts it appears that, Complainant has no papers to show that the watch was losing timing between the period form date of purchase to 22/02/2011. Had it been the case that the watch was losing some seconds per day, the Complainant would have kept the said watch with the Opposite Party No.3 at this time only i.e. either on 06/08/09 or on 06/09/09. But, the Complainant has resumed his job in December, 2009. He has taken this so called defective watch with him on his voyage on the sea. This is not acceptable.
17) Again the Complainant has averred that he returned to India in May, 2010. The watch had a minor crack in its glass. So he replaced the glass on 13/05/2010 and he got the receipt for that on 13/05/2010 for Rs.8,500/- from Opposite Party No.3. The Complainant has admitted that he had to pay this amount because, the guarantee excluded normal wear and tear, loss, theft or damage due to mistreatment. Therefore, the glass must have a crack due to normal wear & tear or due to mistreatment. The Complainant had accepted this receipt and paid the cost for the glass. The Opposite Party No.3 has issued this receipt. However, there is nothing on record to show that even at this point of time the watch was losing some seconds. The Complainant was silent till 13/05/2010 also. However, in the complaint he has averred that at this time (13/05/2010) he showed his dissatisfaction about malfunctioning of the watch but Opposite Party No.3 did not take action in this respect.” The Complainant gets the glass replaced then who prevented him from complaining about the malfunctioning in writing to Opposite Parties ? When the Complainant can complain in writing to the manufacturer in Geneva in 22/02/2011 then what prevented him form making a simple complaint in writing to Opposite Party No.3 at Dadar on 13/05/2010 or earlier i.e. on 06/08/09 or 06/09/09 when there was a grievance of losing 6-7 seconds every day. The Complainant is captain of a ship, well travelled through out the world, a frequent flyer all over the world. It is unacceptable that he could remain silent with a defective watch on his wrist from the day of purchase till 22/02/2011.
18) On 22/02/2011, the Complainant has written a letter to Rolex SA Geneva, complaining about the losing of some seconds and also he has approached Opposite Party No.3 at Dadar and handed over the watch to Opposite Party No.3 with the complaint of complete stoppage of working of the watch. The Complainant has himself averred in para 13 of the complaint that Opposite Party No.3 assured him to look into the mater and the watch is still with Opposite Party No.3. From this averment itself it appears that the Complainant has not bothered about the watch after 22/02/2011. The Opposite Party No.3 in this respect has admitted plainly that the Complainant had brought the watch on 22/02/2011 with a complaint that the said watch has stopped working and Opposite Party No.3 adjusted the said watch and checked it. It found to be working perfectly. But the complainant did not collect it and preferred to make correspondence with the manufacturer. The Opposite Party No.3 has vehemently stated that the watch is still lying with it in a perfect working condition. The Opposite Party No.3 has again vehemently denied that there is any defect in the watch, there is any deficiency in service and denied that there is any unfair trade practice adopted by it. Therefore, if these averments of both the parties are taken into consideration it appears that the Complainant has not bothered about the said watch and has not tried to ascertain whether it is working correctly or otherwise. He has not bothered to know whether there is really any defect in the watch or not. Whether there is any manufacturing defect or only an adjustment was necessary for the accurate working of the said watch.
19) It is the contention of the Complainant that the watch was totally defective piece and it requires to be replaced. At the same time it is the contention of the Opposite Parties that it needed only a adjustment and it is in perfect working condition. Under such circumstances, it is the duty of the Complainant to bring some cogent expert evidence to substantiate that the watch was and is defective and it has got a manufacturing defect for replacement of his watch. But, in the instant case, the Complainant had simply handed over the watch to Opposite Party No.3 on 22/02/2011 i.e. after one and half year of the purchase and then had made only correspondence with Opposite Parties and then came to this Forum without any expert opinion to show that the aid watch is having a manufacturing defect. Apart from expert’s opinion, the Complainant has not produced any other cogent evidence showing the alleged defect in the said watch. Thus, the Complainant has miserably failed to establish that the said watch is having manufacturing defect. It appears that the Complainant has filed the present complaint only under his own presumption.
20) In para 15 of the complaint the Complainant has admitted that Opposite Party No.3 vide its letter dtd.25/03/2011 informed him that “the said watch is readjusted as per the specification of caliber prescribed by Rolex SA Geneva and that it would perform will within specified norm.” Inspite of such communication from the Opposite Party No.3, the Complainant remained passive and even did not see the watch whether it is doing perfectly or otherwise.
21) We have also considered the judgments of the other Fora in similar cases or cases of defective goods.
In Appeal No.938/09, Sai Service Station Ltd. V/s. Mrs. Corus India Ltd. & 2 Ors., and Appeal No.956/09, Maruti Udyog Ltd. V/s. Mrs. Court India Ltd. & Ors, the Hon’ble State Commission has observed in order dtd.06/03/2010 that –
“The Complainant who alleges manufacturing defect has to prove that there was manufacturing defect in car supplied to him by Opposite Party No.1 and manufactured by Opposite Party No.2. There is virtually no evidence of expert adduced by the Complainant/Company. It was duty of the Respondent/Complainant – Company to get the car inspected from expert from the field. There should have been Automobile Engineers report on record to prove that the car was having manufacturing defect on the date of incident. There is no evidence of any kind adduced in this behalf by Respondent No.1.
22) The Hon’ble National Commission in Scooter India Ltd. V/s. Manjulaben Kirit Bhai & Ors. C.C.C. 428 N.S. has observed as follows -
“The Complainant did not lead ay evidence to rebut the same. Even if the report of expert produced by the petitioner (manufacturer of the goods & not the consumer) is discarded, the fact remains that the respondent had failed to prove that there was a manufacturing defect. In absence of any such evidence, it cannot be said that there was any manufacturing defect in the vehicle.”
23) The Hon’ble National Commission in MRF Ltd. V/s. Bhalchandra Jamnadas Patel & Others 2010(2) C.C.C. 85 (N.S.) has observed that -
“The onus to prove that there was manufacturing defect in the tyres was on respondent No.1 (Consumer) which he failed to discharge by leading any expert evidence. As against this the petitioner (Manufacturer) had got the tyres examined from its engineer, who after examination, the same stated in his report that there was no manufacturing defect in the tyres.”
24) Therefore, the established principle in deciding the consumer cases that, whenever there is an allegation of manufacturing defect in the goods purchased by the consumer or an inherent defect as alleged in this complaint, it is the responsibility of the Complainant who alleges the same to establish it by adducing an evidence of an expert in that field. In the present case no such expert evidence is brought on record by the Complainant.
25) The Complainant has cited a case law, Case No.CRP1118 of 1960 dtd.29/03/62 of Hon’ble High Court of Kerala. We have gone through the said judgment. In this case, the watch was reported defective within 3 weeks and handed over to branch of defendant. It was kept for few days with the defendant at Trichur & returned to the Plaintiff. A few days thereafter it was taken to head office of the defendant. After several days the Complainant got back the watch through Trichur branch with assurance that that defects were set right. Within a week, the trouble reappeared. It was again handed over to Trichur branch. Endorsement was made on guarantee certificate to the effect that the watch was received at that branch for adjustment. The watch was not taken back. In the said case the Plaintiff agreed for the independent test of the watch but the Opposite Party (defendant) kept silent.
26) In the above said case the Plaintiff approached the defendant with Complainant s within 3 weeks. In the case in hand, there is nothing on record to show that the Complainant complained about the defects from 05/008/09 till 22/02/20011. In the above said case, inspite of repairs at Trichur and Ernakulam, the defects reappeared. In the case in hand, the Complainant has approached the Opposite Party No.3 1st time on 22/02/2011. It was readjusted and it is the contention of the Opposite Party No.3 that it is fine and working perfectly. The Complainant has not bothered to see the watch whether the contention of Opposite Party No.3 is correct. In the above said case cited by the Complainant, the Opposite Party after offering an independent test withdrew from doing the same. Here in the instant case, the Opposite Party is vehemently saying that the watch is perfectly working. Under such circumstances it is the obligation of the Complainant to bring a cogent evidence to establish that the watch is defective. Therefore, in our candid view, the case law cited by the Complainant is not applicable to the case in hand and hence, considering all the above facts and circumstances, as well as the cases cited above we pass the order as follows –
O R D E R
1. Complaint No.247/2011 is hereby dismissed for want of merits as the complainant could not established that the watch in question is defective.
2. Certified copies of this order be furnished to the parties.
