| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION FAZILKA.
Complaint No. : RBT/CC/114/2023 – CC/356/2021 Date of Institution : 10.09.2021 Date of Decision : 28.11.2024
Sonu aged 25 years S/o Mahesh Kumar R/o St.No.3, H.No.1074, Abohar, District Fazilka, Prop. Khariwal Dairy. ...Complainant
Versus Sanjeev Electronics, Jain Nagri Road, Near Hotel Sen Nite, Abohar, District Fazilka through its Partner/Prop. Chadha Sales Pvt. Ltd., Dairy Equipment, 137, Rajindra Market, Tees Hazari, New Delhi through its M.D.
...Opposite Parties. Complaint U/s 35 of the Consumer Protection Act, 2019.
Quorum: Sh.Vishal Arora, President. Sh.Raghbir Singh Sukhija, Member. Smt.Tajinder Kaur, Member.
Present: Sh.Gagan Goklany, counsel for Complainant. Sh.Parkash Makkar, counsel for opposite party No.1. Opposite party No.2 Ex-parte.
ORDER
(Vishal Arora, President) Complainant has filed the present complaint U/s 35 of the Consumer Protection Act, 2019 against the opposite parties for seeking directions to the opposite parties to refund the total cost of machine alongwith interest @15% per annum till actual payment of the amount besides compensation to the tune of Rs.40,000/- and Rs.5000/- as costs of litigation. Briefly stated, the case of complainant is that he purchased one ball bearing Milk Separator machine alongwith its accessories for Rs.30,900/- vide bill No.202 dated 14.11.2019 from the opposite party No.1, which has been manufactured by the opposite party No.2. It was assured by the opposite parties that the machine is manufactured by a reputed company and there would not be any defect and if at all any defect would occur, the defect would be rectified. There are springs in the machine on which a container is mounted and milk is poured in the container and thereafter, the machine is put to use with the help of electricity. It has been pleaded that after a few days of the installation of the machine, it started giving trouble as its springs on which the container was mounted, came out of the machine, which stopped working and milk processing was stopped. The matter was reported to the opposite parties for rectification of defect/replacement of the machine. The representative of the opposite parties visited the premises of the complainant and inspected the machine in order to find out the defect but the defect could not be rectified despite his efforts. As the representative could not rectify the machine, there seems to be some major defect in the machine which could neither be detected nor rectified. It has further been pleaded that the complainant requested the opposite parties that since the machine went out of order within a few days of the working/installation and their representative could neither detect nor rectify the machine to bring in proper working condition from which it is quite evident that the machine is defective and there is some major problem due to bad workmanship. It is the responsibility of the seller i.e. opposite party No.1 to sell the defect free goods. Non-replacement/non-rectification of defect in the machine by replacing parts even after making number of representations amounts to deficiency in services on the part of the opposite parties and if any loss or injury is caused to the complainant, he is entitled to be compensated. Hence, this complaint. The learned counsel for complainant was heard with regard to admission of the complaint and vide order dated 15.09.2021, complaint was admitted and notice was ordered to be issued to the opposite parties. Upon notice, opposite party No.1 appeared and filed written statement to the complaint by raising certain preliminary objections inter alia to the effect that there is no warranty or guarantee on the machine in question either written or oral and the present complaint is not maintainable. The complaint has been filed after about two years from the purchase of the machine. Before filing of the present complaint, the complainant never reported or complained about any defect in the machine. It has not specifically been stated as to what is the defect in the machine and complainant has not placed on file the expert opinion qua defect in the machine. The complainant has not come to this Commission with clean hands and has suppressed the material facts which disentitles him from seeking any relief. Infact, the complaint has been filed in order to harass the opposite party No.1 or for some ulterior motive, without any defect in the machine. There is neither deficiency in service on the part of the opposite party No.1 nor complainant has brought any material on record to show that there was any deficiency in service on the part of the opposite party No.1 except bald allegations. The complaint is false and frivolous and is liable to be dismissed with costs. On merits, it has been pleaded that the dairy was set up for earning huge profits, product was purchased for the commercial purposes and as such, the present complaint is not maintainable. It is admitted that the complainant purchased one ball/milk separator on 14.11.2019, but it was for Rs.30,400/- and not for Rs.30,900/-. The complainant never complained about any defect in the machine at any point of time prior to filing of the present complaint nor the representative visited the premises of the complainant, so the question of not detecting the defect or not rectifying the machine does not arise at all. No representation was made nor any defect was reported at any point of time. After denying all other averments of the complainant, opposite party No.1 has prayed for dismissal of the present complaint. Opposite party No.2 has filed written statement raising certain preliminary objections to the effect that the present complaint is liable to be dismissed as it suffers from Suppressio Falsi Suggestio Veri, the same is not maintainable and is liable to be dismissed or name of the opposite party No.2 needs to be removed as the complainant has misled and concealed the material facts from this Forum. The complainant filed the instant complaint against the opposite party No.2 without presenting/attaching evidence on record that how the opposite party No.2 is connected with this complaint. Neither the content nor evidence on record constitute the liability on part of the opposite party No.2 as it is not a "Product Seller", "Manufacturer" and "Service provider" of the product. The complainant filed the baseless complaint, which has no locus-standi against the opposite party No.2 and the basic requirement of the 'Act' has not been fulfilled. The complainant alleged that the opposite party No.2 is the manufacturer of alleged Cream Separator/Product whereas it is not the manufacturer of any alleged Cream Separator/Product. It does trading of Cream Separator which is of Lakshmi Make and it has no nexus with the alleged Cream Separator/Product. For constituting the liability under 'Act', the complainant needs to prove the relation of consumer and manufacture/supplier/service provider among them and opposite party No.2 is not the manufacture/seller/service provider of the machine in question. Opposite party No.2 has also reproduced Sections 34 and 35 in the written statement. It has been pleaded that no cause of action has ever arisen in favour of the complainant and against the opposite party No.2 as the opposite party No.2 never sold the product to the opposite party No.1. Even, after receiving the information of the instant complaint, the opposite party No.2 contacted the opposite party No.1 and apprised it about the complaint, but the opposite party No.1 denied the fact that the product was made or purchased by the opposite party No.2. Even the bill/invoice presented before this Commission is not issued/generated by the opposite party No.2. It has further been pleaded that the complainant without showing the connection with the actual seller or supporting evidence maliciously with cunning intentions added the name of the opposite party No.2, which is wrong and unlawful. The present complaint is an abuse of process of law and has been filed to take undue advantage of this Forum. On merits, allegations of the complaint have been denied and in the end, the opposite party No.2 has prayed for dismissal of the present complaint. After filing the written statement, nobody appeared on behalf of the opposite party No.2 either in person or through counsel, therefore, the opposite party No.2 was proceeded against ex-parte vide order dated 27.11.2024. Parties were given proper opportunities to prove their respective case. The complainant alongwith complaint has produced his affidavit and bill only. Per contra, the opposite party No.1 has produced affidavit of Sanjeev Kumar, Proprietor of Sanjeev Electronics (Ex.OP1/1). Opposite party No.2 has produced affidavit of Mr.Amit Verma and authorization letter (Ex.OP2/1). We have carefully gone through the record and heard the learned counsel for the parties, who have argued on the same lines as per their pleadings and careful consideration has been given to their respective submissions. The allegations of the complainant are that he purchased one Milk Separator machine alongwith its accessories vide bill dated 14.11.2019 from the opposite party No.1. After a few days, the machine stopped working as the springs on which the container was mounted came out of the machine and its milk processing stopped. The complainant reported the matter to the opposite parties for rectification of defect/replacement of the machine. The representative of the opposite parties visited the premises of the complainant and inspected the machine in order to find out the defect, but the defect could not be rectified despite his efforts. Opposite parties have denied all these allegations of the complainant. Opposite party No.2 has also denied in the written statement that it is manufacturer of the machine in question. The onus to prove the present case is upon the complainant and to prove the same, the complainant has produced on record only his affidavit and bill which are not sufficient to prove the averments made in the present complaint regarding defect in the machine in question. The complainant has neither produced on record any documentary evidence such as job sheet, e-mail or message etc. to prove lodging of any complaint with the opposite parties regarding the defect in the machine nor any expert opinion to prove the alleged defect has been given. So, the complainant has failed to prove his case by producing any cogent and convincing evidence and case of the complainant cannot be said to be proved merely on the basis of averments in the affidavit and purchase bill. It has been argued by the learned counsel for the complainant that the opposite party No.2 has categorically denied having sold the machine in question to opposite party No.1 nor he is franchisee holder. It has further been argued that the logo which opposite party No.1 has used has been used unauthorizedly in order to fetch better price as opposite party No.2 is a reputed brand carrying premium in the market. The opposite party No.1 has sold unbranded machine of inferior quality by using the logo of reputed manufacturer to attract the buyer and allure them to purchase the said machine and has misled claim regarding quality, nature of performance of machine and name of manufacturer, thus, misled the complainant. The said arguments of the learned counsel for the complainant carries no weight as neither there is any pleading of the complainant in this regard in the present complaint nor any photograph of the machine in question bearing the alleged logo has been placed on file by the complainant. As such, the complainant is not entitled to any relief as prayed for. In view of what has been discussed above, the present complaint fails and is hereby dismissed without any order as to costs. Copy of order be sent to the parties concerned free of costs and file be indexed and consigned to the record room.
Announced in Open Commission 28.11.2024 (Vishal Arora) President (Raghbir Singh Sukhija) Member (Tajinder Kaur) Member | |
