27.07.2017

MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.

          Instant appeal under Section 15 of the Consumer Protection Act, 1986 challenging the judgment and order dated 13.052016 passed by the Ld. District Forum, Howrah in Complaint Case No. HDF/269/2015 allowing the complaint on contest with cost against the O.P. Nos. 2 and 3 and ex-parte with cost against O.P. No. 1 with the directions as under:-

          “The O.Ps are jointly and severally directed to refund Rs.22,000/- to the complainant within one month from the date of this order.

          That the o.ps are further directed to pay an amount of Rs.3,000 as compensation and Rs.1,000 as litigation cost to the complainant.

          That the o.ps are further directed to pay the entire amount of Rs.26,000/- to the complainant within one month from the date of this order i.e., the aforesaid amount shall carry an interest @ 8% per annum till full realization.  The complainant is hereby directed to return the washing machine in question, to the O.Ps after receiving the awarded amount from them.  And O.Ps to take back the said goods at their own cost.

          The complainant is at liberty to put the decree into execution after expiry of the appeal period”.

          The brief facts of the case are that the Respondent/Complainant purchased from the Appellant No. 3/O.P. No. 1, a washing machine at a cost of Rs.22,000/-.  The machine developed a defect in its timer within a period of its warranty.  The machine was handed over to the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3 at their own risk on request for repairing the defect.  The machine which was received back after repairing through the messenger of the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3 without its functioning being checked, was found to have been severely damaged.  The Respondent/Complainant brought the matter immediately to the notice of the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3 and requested the machine to be replaced with a new one since the machine was within the period of warranty.  There being no response forthcoming from the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3, the complaint case was filed before the Ld. District Forum.

          Heard the Ld. Advocates appearing on behalf of both sides.

          The Ld. Advocate appearing on behalf of the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3 submitted that the machine was having a warranty period of 4 years.  The machine received three free services and developed the defect after constant use for three years.

          The Appellant Nos. 1 & 2/O.P. Nos. 2 & 3, as the Ld. Advocate submitted further, after inspecting the machine, wanted the same to be repaired at their end and requested the Respondent/Complainant to handover the machine to them accordingly.  The Respondent/Complainant yielded to the request and handed over the machine to the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3 after consuming a considerable period of time as he was insisting on the repairing to be made at his end.  The Ld. Advocate drew the notice of the Bench at page 25 of the case record and submitted that the Appellants showed good gesture by providing him a stand-by machine as a stopgap arrangement. 

          The machine which was delivered through the messenger at the residence of the Respondent/Complainant was not opened in presence of the said messenger.  The Respondent/Complainant, subsequently, on opening the machine, found that the machine had been damaged to a considerable extent.

          The Appellant Nos. 1 & 2/O.P. Nos. 2 & 3, after the matter being brought to their notice, apprehended that the damaged might have been caused due to mishandling of the machine by their messenger and requested the Respondent/Complainant to handover the machine once again to them for further repairing and assured the Respondent/Complainant that the warranty of the machine would be extended.  The Ld. Advocate contended that the Respondent/Complainant suppressed two successive communications made to him by the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3 which signified their honest motive for repairing the defect and extension of warranty and thereby resorted to an unlawful activity by suppressing the material facts.

          The Respondent/Complainant, as submitted, with an ulterior motive of getting the machine replaced even after constant and satisfactory service being rendered to the machine for three years, did not yield to the request of the Appellants/O.Ps appreciating the facts that it was beyond the authority of the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3 to entertain any proposal for replacement of a repairable machine. 

          The Ld. Advocate went on to submit that the Ld. District Forum resorted to material irregularity while passing the impugned judgment and order based on an erroneous finding that the machine had a manufacturing defect which the Ld. District Forum should not have concluded without the machine being tested and certified by any competent technical expert to that effect.    The Ld. Advocate, in this context, cited the decision of the Hon’ble National Commission in Revision Petition No. 3973 of 2012 [Sukhvinder Singh – vs. – Classic Automobiles and Anr. and Tata Motors Ltd.] wherein the Hon’ble National Commission was pleased to observe that the report of expert was essential or some other evidences showing manufacturing defect were required to be adduced.

          Ld. Advocate went on to cite further the observation of the Hon’ble National Commission in [Ajitha Chit Funds (P) Ltd. – vs. – Tata Engineering and Locomotives] decided on 01.12.2006 wherein the Hon’ble National Commission was pleased to observed that in absence of expert opinion to that effect, it would be wrong to decide a car was having manufacturing defect. 

          The Ld. Advocate, with the above submission, prayed for the appeal to be allowed setting aside the impugned judgment and order.

          The Ld. Advocate appearing on behalf of the Respondent/Complainant, per contra, submitted that it was not a fact that the Respondent/Complainant suppressed any material fact as alleged by the Ld. Advocate for the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3 in course of his argument.

          Drawing notice to the Bench to Para 30 of the running page 50 being the reply of the Complainant, the Ld. Advocate pointed out that all the facts having relevance with this case were detailed in the complaint. 

          It was not fact, as the Ld. Advocate continued, that the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3 wanted to take the machine to their service centre first.  Actually, they tried to repair the machine at the residence of the Respondent/Complainant first and thereafter, not being able to repair the machine on the spot, wanted to take the machine at their service centre.  In fact, as the Ld. Advocate maintained, the machine was damaged at the time of transit by the messenger which has been apprehended similarly by the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3.  There was no necessity of any report from the technical expert as emphasized by the Ld. Advocate for the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3 in course of his argument.

          With the above submission, the Ld. Advocate prayed for the appeal to be dismissed affirming the impugned judgment and order.

          Perused the papers on record.  It appeared that the defect in the machine was detected after a constant use of long three years.  Meanwhile, there was no complaint about any defect by the Respondent/Complainant in respect of the said machine.  The Ld. District Forum, however, observed the defect in the machine to be a manufacturing one while delivering the impugned judgment and order.  It is a settled fact that no defect can be concluded to be a manufacturing one till it is properly examined and certified to that effect by a competent technical person.

          The Ld. District Forum, as it appeared from the record, did not get the machine examined by any competent technical expert before arriving at a very delicate decision towards manufacturing defect of the subject machine.  There being material irregularity in arriving at the said decision, we are unable to accept the same as a tenable one.  We, however, are inclined to accept the facts that the defect of the machine which was developed within the period of warranty, could be repaired by the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3, neither at the residence of the Respondent/Complainant, nor at their end.  The machine, rather, was damaged through mishandling and the same by the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3’s messenger.  The defect in delivering due service by the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3 lies there. 

          The facts and circumstances narrated herein above, led us to believe that there was deficiency in delivering service to the Respondent/Complainant by the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3.

          Hence, ordered that the appeal be and the same is allowed on contest in part with cost of Rs.2,000/- to be paid by the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3 jointly and severally to the Respondent/Complainant.  The Appellant Nos. 1 & 2/O.P. Nos. 2 & 3 are jointly and severally further directed to repair the machine and handing over the same to the Respondent/Complainant and pay an amount of Rs.5,000/- as compensation as well to the Respondent/Complainant for the mental agony that he sustained due to the aforesaid deficiency on the part of the Appellant Nos. 1 & 2/O.P. Nos. 2 & 3.  The Appellant Nos. 1 & 2/O.P. Nos. 2 & 3are directed to extend the period of warranty for a further period of one year from the date of repairing of the machine.  The entire order has to be carried out within 45 days from the date of the order, failing which, simple interest @ 9% on Rs.5,000/- shall accrue from the date of default till the amount is fully paid.  The order of the Ld. District Forum stands modified accordingly.