Tripura

StateCommission

A/4/2016

Hindustan Sanitaryware & Industries Ltd. - Complainant(s)

Versus

Smt. RinkuSarkar (Dey) & Others, - Opp.Party(s)

Mr. Pradip Rathor, Miss. Titu Rani Shil

08 Feb 2017

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

PRESENT

 

HON’BLE MR. JUSTICE U.B. Saha,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR. NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

APPEAL CASE No.A/4/2016

 

 

 

1. Hindustan Sanitaryware & Industries Ltd.,

Unit No.301-302, 3^rd Floor,

Park Centre, Sector 30,

N.H-8, Gurgaon, Haryana-122001.

                                                      ….    ….    ….    Appellant/Opposite PartyNo.1.

                                                           

        Vs

 

 

 

 

1. Smt. Rinku Sarkar (Dey),

W/o Sri KoushikDey,

of West Joynagar,

Near UpendraVidyaVawan

P.S. West Agartala, District - West Tripura.

….    ….    ….    ….   Respondent/Complainant.

 

2. M/s MPS Trading Group

37, Thakurpalli Road, Krishnanagar

(Near Sangam Marriage House)

P.O. Agartala, District- West Tripura,

•  

    ….    ….    ….   Respondent/Opposite PartyNo.2.

 

 

 

 

 

 

 

 

APPEAL CASE No.A/5/2016

 

 

 

1. Hindustan Sanitaryware & Industries Ltd.,

Unit No.301-302, 3^rd Floor,

Park Centre, Sector 30,

N.H-8, Gurgaon, Haryana-122001.

 

                                                      ….    ….    ….    Appellant/Opposite PartyNo.1.

 

 

              Vs

 

 

1. Sri Manish Chandra Roy (Editor Tripura Khabar),

S/o Ranjit Ch. Roy, O/F - 15 Kalyan Kutir,

Office Quarter Lane, Agartala,

Dist. West Tripura,

 

….    ….    ….    ….   Respondent/Complainant.

 

 

2. M/s MPS Trading Group

37, Thakurpalli Road, Krishnanagar

(Near Sangam Marriage House)

P.O. Agartala, District- West Tripura,

•  

    ….    ….    ….   Respondent/Opposite PartyNo.2.

 

 

 

For the Appellant                   :         Ms. Titu Rani Shil, Adv.

For the RespondentNo.1       :         Mr. Sukanta Debnath, Adv.

 

For the RespondentNo.2       :         Mr. Gautam Giri, Adv.

Date of Hearing & Delivery of Judgment: 08.02.2017.

 

 

 

 

 

 

 

J U D G M E N T  [O R A L]

 

 

U.B. Saha,J,

Both these appeals have been filed by the appellant, Hindustan Sanitaryware & Industries Ltd. under section 15 of the Consumer Protection Act, 1986 against the Judgments dated 05.10.2015, passed by the Ld. District Consumer Disputes Redressal Forum, West Tripura, Agartala (hereinafter referred to as District Forum) in Case No.C.C.37 of 2014 and Case No.C.C.38 of 2014 respectively, whereby the Ld. District Forum allowed the complaint petitions filed by the respondent no.1 (in Appeal No.A/4 of 2016), Smt. Rinku Sarkar (Dey), the complainant of Case No.CC.37/2014 and respondent no.1 (in Appeal No.A/5 of 2016),Sri Manish Chandra Roy, the complainant of Case No.CC-38/2014,directing the appellant Hindustan Sanitaryware & Industries Ltd. (hereinafter referred to as opposite party no.1) and respondent no.2 M/s M.P.S. Trading Group (hereinafter referred to as opposite party no.2) to jointly and severally make payment of Rs.17,990/- to the complainant, Smt. Rinku Sarkar (Dey) (hereinafter referred to as complainant in CC-37/2014) as the price of defective Rubella 90 Chimney and in addition to pay compensation of Rs.5,000/- for mental agony and harassment with Rs.2,000/- as cost of litigation. In Case No.C.C.38 of 2014, the Ld. District Forum also allowed the complaint of the complainant, Sri Manish Chandra Roy (hereinafter referred to as complainant in CC-38/2014) and directed the opposite party nos.1& 2 to jointly and severally make payment of Rs.11,491/- to the complainant of CC-38/2014 as the price of the defective Oil Collector 2 mpc Pipe and in addition to pay compensation of Rs.5,000/- for mental agony and harassment with Rs.2,000/- as cost of litigation. In both the aforesaid cases, the Ld. District Forum also directed to pay the awarded amount within a period of 3 weeks from the date of receipt of the copy of judgment, failing which the amount payable will carry interest @9% per annum till the payment is made in full.

As the facts involved in both the cases are similar and the questions of law involved are also same, both the appeals are taken up for disposal by this common judgment.

2. Heard Ms. Titu Rani Shil, Ld. Counsel appearing for the appellant, Hindustan Sanitaryware & Industries Ltd. in both the appeals and Mr. Sukanta Debnath, Ld. Counsel appearing for both the complainants, the respondent no.1 in both the appeals and also heard Mr. Gautam Giri, Ld. Counsel appearing for the opposite party no.2, the respondent no.2 in both the appeals. 
3. The facts needed to be discussed are as follows:-

Both the complainants filed their petitions under section 12 of the Consumer Protection Act, 1986 before the Ld. District Forum, which were registered as Case No.CC-37/2014 and Case No.CC-38/2014 respectively.

4. The allegations of the complainant in Case No.CC-37/2014 is that on 07.09.2012, she had purchased a Rubella 90 Chimney from the opposite party no.2, M/s M.P.S. Trading Group who was then the Distributor and authorized service centre of the products manufactured by opposite party no.1, i.e. the appellant herein, for an amount of Rs.17,990/-. The said chimney had warranty for a period of 12 months starting from the date of purchase. It is also alleged that just after one and a half months of purchase, the said chimney stopped functioning completely and immediately thereafter, she had reported the matter to the opposite party no.2. She was repeatedly informed by the opposite party no.2 that the defect of the chimney could not be removed as the spare parts were not available with them and requested her to wait for 15 to 20 days. The complainant visited the service centre run by the opposite party no.2 on a number of occasions, but the defect of the chimney could not be rectified due to non-receipt of the required spare parts from the opposite party no.1, Company. Finding no other alternative, she served a legal notice upon the opposite party nos.1 and 2 for their failure to repair the product manufactured by opposite party no.1 and purchased by her from the opposite party no.2 within the warranty period. As the conduct of the opposite parties constituted negligence and deficiency in rendering service, she filed complaint case under section 12 of the C.P. Act, 1986 before the Ld. District Forum claiming compensation of Rs.92,990/-.
5. The case of the complainant in Case No.CC-38/2014 is that on 29.01.2013, he had purchased an Oil Collector 2 mpc Pipe from the opposite party no.2, M/s M.P.S. Trading Group who was then the Distributor and Authorized Service Centre of the products manufactured by the opposite party no.1, the appellant herein, for an amount of Rs.11,491/- and the said oil collector pipe had warranty for a period of one year starting from the date of purchase. It is also alleged that just after one and a half months of purchase, the said oil collector pipe stopped functioning completely. He had immediately reported the matter to opposite party no.2. He was informed by the opposite party no.2 that the defect of the oil collector pipe could not be removed, as required spare parts were not available with them. The opposite party no.2 requested him to wait for one month more. Accordingly, he waited and thereafter visited the service centre run by the opposite party no.2, on a number of occasions, but the defect of the oil collector pipe could not be rectified due to non-receipt of the required spare parts from the opposite party no.1, the appellant herein. Finding no other alternative, he served a legal notice upon the opposite party nos.1&2 for their failure to repair the product purchased by him from the opposite party no.2 within the period of warranty. As the conduct of the opposite parties constituted negligence and deficiency in rendering service on the part of the opposite parties, he filed the complaint case under section 12 of the C.P. Act, 1986 before the Ld. District Forum claiming compensation of Rs.1,31,491/-.
6. The complaints filed by both the complainants were contested by the opposite parties resisting the claim made by the complainants. In both the cases, the opposite party no.1-appellant, Hindustan Sanitaryware & Industries Ltd. the Manufacturer of the products in their written objection stated inter alia that the complainants never informed their grievances to them during the period of warranty. After expiry of the warranty period, they issued legal notice to them demanding the replacement of the product in question along with Rs.80,000/- respectively as compensation without giving them any opportunity to inspect the products. It is also stated that they are not entitled to claim the benefit of warranty as they complained about the non-functioning of the product after expiry of the period of warranty. As per norms, after expiry of warranty, the complainant is to avail paid services from the opposite party. It is denied that the products suffered from any inherent mechanical defect. It is also asserted by the opposite party no.1 that since 11.10.2012, the Company discontinued its business with opposite party no.2, as he defaulted in making payment against the products purchased from opposite party no.1 on credit. Thus, the opposite party no.1 is not responsible for the action or inaction of the opposite party no.2. It is also denied that the Company was negligent and deficient in rendering service to the complainants in any manner whatsoever. The opposite party no.2, in both the cases in its written objection admitted the facts that the complainant, Rinku Sarkar (Dey) had purchased the Rubella 90 Chimney manufactured by the opposite party no.1 from its firm on 07.09.2012 and the complainant, Manish Chandra Roy had purchased a Oil Collector 2 mpc Pipe manufactured by the opposite party no.1 from its firm on 29.01.2013 and within one and a half months of purchase, the said Rubella 90 Chimney and Oil Collector 2 mpc Pipe purchased by the complainants respectively went out of order. It is also admitted by the opposite party no.2 that the complainants placed the defective chimney and the defective oil collector pipe with its service centre for rectification of defect, but due to non-receipt of the spare parts from opposite party no.1, they could not put the defective products in order. It is alleged that they gave requisition to the opposite party no.1 on a number of occasions for sending the spare parts to remove the defects of the products purchased by the various customers, but the opposite party no.1 did not supply the required spare parts on demand. It is also asserted by the opposite party no.2 that the complainants have suffered mental agony and harassment due to lapses of opposite party no.1. It is denied that he was negligent and deficient in rendering service in any manner whatsoever.
7. In support of the case, both the complainants have examined themselves as P.W.1 respectively and have proved and exhibited the documents submitted by them by Firisti. Which were also exhibited.
8. The opposite party no.1 has examined one Smt. Monomita Karmakar, State Service In-charge of the Company as O.P.W.1. No documentary evidence has been adduced on behalf of the opposite party no.1.
9. The opposite party no.2 has examined its Proprietor Sri Kalyan Dey as O.P.W.2. and has proved and exhibited the documents filed by him vide Firisti dated 24.03.2015 and 11.05.2015 in Case No.CC-37/2014 & CC-38/2014 respectively which were exhibited as Exhibit-A series.
10. The Ld. District Forum after considering the evidence adduced by the respective witness of the parties and documents including the records of warranty of the products passed the impugned judgment as stated (supra).
11. Ms. Shil, Ld. Counsel appearing for the appellant-opposite party no.1 in both the appeals submits that the opposite party no.1 discontinued its business with opposite party no.2 since 11.10.2012 and opposite party no.1 is in nowhere responsible for any deficiency in service on behalf of the opposite party no.2. She further submits that the opposite party no.2 was not the agent of opposite party no.1 being a Distributor. According to her, the Ld. District Forum committed error while fixed the liabilities upon the opposite party no.1. She admitted that both the products are manufactured by the opposite party no.1 and the transactions between the Manufacturer opposite party no.1 and Distributor opposite party no.2 were principal to principal and not only that the opposite party no.2 used to accept the amount for the products on his own behalf. Thus, the opposite party no.1 is in nowhere responsible for deficiency of service as complained by the complainants. She has also submitted that there was no agreement between the opposite party no.1 and opposite party no.2 for selling the products of the opposite party no.1.
12. Mr. Debnath, Ld. Counsel appearing for the complainants in both the appeals while supporting the impugned judgments passed by the Ld. District Forum would contend that it is the admitted position that both the products namely Rubella 90 Chimney and Oil Collector 2 mpc Pipe purchased by the complainants are the products manufactured by the opposite party no.1 and both the products were stopped functioning completely just after one and a half months of the purchase of the products i.e. within the warranty period. He also submits that form the documents submitted by the opposite party no.2, particularly, the letter dated 06.12.2011 written by the opposite party no.1 through their authorized person to opposite party no.2, it would appear that opposite party no.2 was a Single Point Distributor for the whole State of Tripura at the point of purchase of the products and not only that from the said letter it is also admitted position that the opposite party no.2 was authorized to provide initial service to the customer. Thus, in no way, the opposite party no.1 can shift its responsibility for deficiency in service to the complainants regarding their products on the part of opposite party no.2. He further submits that if any product is found defective within the warranty period, then the manufacturer is bound to replace the products by itself and/or through their Dealer/Distributor/Agency and their Service Centre.
13. Mr. Giri, Ld. Counsel appearing for the opposite party no.2, the sole Distributor of opposite party no.1 while supporting the impugned judgments submits that neither the opposite party no.2 nor the opposite party no.1 can disown their responsibility regarding the products in question as both the products purchased by the complainants were stopped functioning within its warranty periods and even on several requests made by the opposite party no.2, the opposite party no.1 did not send the spare parts of the products manufactured by it and purchased by the complainants and other customers for which, the opposite party no.2 could not rectify the defect of the products and/or replace the products though admittedly, both the products were found defective within the warranty period. He has also placed few lines from the letter dated 06.12.2011 of the opposite party no.1 which was written to opposite party no.2 by which the opposite party no.2 was appointed as a Distributor and Service Provider of opposite party no.1. He finally contended that the opposite party no.1 though in their written statement has contended that they have discontinued the business with opposite party no.2 since 11.10.2012, but that is not correct, and also no such document in support of their contention was submitted before the Ld. District Forum. It is apparent from the evidence of O.P.W.1, Smt. Monomita Karmakar that in her cross-examination, she specifically stated that vide letter dated 29.11.2012, the opposite party no.2 gave requisition to her for sending spare parts, but she expressed her inability to supply the same free of cost without getting details of the customers for whom the spare parts were required, meaning thereby, the opposite party no.1 has admitted that the business transaction was continued with them.
14.  We have considered the submission of the Ld. Counsel appearing for the parties. According to us, the opposite party no.1 cannot shift its burden on opposite party no.2 for the products manufactured by them which were found defective within the warranty period. We have gone through the warranty documents of both the products, namely, Rubella 90 Chimney and Oil Collector 2 mpc Pipe from which it appears that both the Consumers-complainants approached the opposite party no.2 within the warranty period of products for removing the defects of respective products and/or replace the same. We have also gone through the evidence of the O.P.W.1. In her evidence, it is specifically stated that she is working as State Service In-charge of the opposite party no.1. She has also admitted the letter dated 06.12.2011 that the opposite party no.2 was appointed as a Distributor for the products of opposite party no.1 and also to render emergency service to the customers. She has also admitted that the opposite party no.2 Distributor of the opposite party no.1 used to send mail for sending spare parts for replacement of the damage parts of the products. According to us, the Ld. District Forum in its judgments gave well reasons for holding negligent and deficiency in rendering service to the complainants by the opposite party nos.1 & 2. The opposite party no.1 being the principal cannot escape the liability for the action or inaction of his agent. We are of the further opinion that the consumers are not in a position to always purchase any products direct from the manufacturer. Sometimes, they have to purchase the product from the Dealer/Distributor and for any defect of the purchased products, they cannot approach the Manufacturer, but only to Service Provider. Here admittedly, the opposite party no.2 is the Distributor and Service Provider of the opposite party no.1 at the relevant time. The decision relied upon by Ms. Shil passed by the National Consumer Disputes Redressal Commission in M/s Hero Honda Motors Ltd. Vs K.B. Murleedharan and another (Revision Petition No.305 of 1993) is in no way to help the appellant being the facts of that case is totally different than the case in hand. In that case, the complainant who was the respondent in the Revision Petition had booked a Hero Honda Motor Cycle manufactured by the M/s Hero Honda Motors Ltd. through its dealer and the vehicle was not delivered to him up to the date of filing of the complainant. He has filed the complaint and the National Commission found that “According to the agreement arrived at between the Manufacturer and the Dealer, it is clear that the transactions between the Manufacturer and the Dealer were as principal to principal. Thus, the Dealer did not accept the amount from the customers as agent of the Manufacturer.” In the instant case, except the letter dated 06.12.2011 written by the opposite party no.1 which was produced by the opposite party no.2, no other document was submitted by the opposite party no.1 in support of their case to prove that they had discontinued the contract with the opposite party no.2. As we stated earlier that a consumer is always not in a position to approach the manufacturer regarding the defective products within the warranty period, here the complainants of these cases had rightly approached the Distributor and the Service Provider/Service Centre, the opposite party no.2 regarding the defective products and in no way, the opposite party no.1 & 2 can shift their responsibility to each other. Both the opposite parties i.e. the Manufacturer and the Distributor of the products are equally negligent and deficient in rendering service to the complainants and the Ld. District Forum rightly allowed the complaint cases filed by the complainants.                

In view of the above, both the appeals are dismissed being devoid of merit and in consequent thereto, the impugned judgments are affirmed. No order as to costs.

Send down the records to the Ld. District Forum, West Tripura, Agartala.