CC/525/2017
Dt. of filing – 08/09/2017
Dt. of judgement – 14/08/2018
Mr. Ayan Sinha, Member.
This is a complaint case under section 12 of the CP ACT 1986 ( as ammended upto date ) made by Smt. Jyoti Gopalka, wife of Alok Gopalka and residing at 246/247, Lake Town, Block-A, P.S. Lake Town, Kolkata – 700089 against (1) The Chairman and Managing Director M/S. Franke Faber Limited, Gate no. 1086/1/2, Nagar Road Sansawadi Tal Shirur, Pune – 412208(OP NO. 1),(2) The General Manager (Operation) Franke Faber India Ltd., 204 , Pentagon-2, Magar Patta City, Hadaspur Pune-411013 (OP NO. 2),(3) Mr.Sanjay Sur, Area Service / Sales Manager, Kolkata Region, C/o M/S Franke Faber India Ltd., Kolkata, (OP NO.3),(4) M/S. Karni Marketing Pvt. Ltd. 1, Abdul Hamid Street, Kolkata- 700069 also known as 1, British Indian Street, Kolkata- 700069 (OP NO.4),(5) Mr. Dinesh Burman, Director, M/S. Karni Marketing Pvt. Ltd. Having office at 1, Abdul Hamid Street, ( British India Street), Kolkata- 700069 (OP NO.5),(6) M/S. Avon Marketing Authorised Service Provider 55 B, Shyama Prasad Mukherjee Road, 2nd Floor, P.S. Tollygunge, Kolkata- 700026 (OP NO.6) praying for direction upon OPS to pay Rs. 1,00,000 as reimbursement expenses, mental agony, harassment and litigation costs and any other order may deem fit and proper for the ends of justice.
Facts in Brief are that the complainant purchased one pressure cooker 3 Ltrs. Along with Crystal 40 CT AI – HE (Faber Gas Cooking Stove) bearing no. P-1506005124 on 25/09/2015 from Karni Marketing Pvt. Ltd. For Rs. 8650 against tax invoice and a money receipt issued by op no.4 along with warranty for 12 months. On 28/10/2015, the complainant lodged a complaint bearing no.1512387572621 for malfunctioning of the said cooking stove against which a technician Mr. Ajay Kumar Shaw attended at complainant’s residence and assured that the defects will be removed very soon.
Thereafter the complainant has mentioned in the petition of complaint that without removing the defect or replacing the goods, the technician and the staff of the op abused and defamed her before the members of the family.
After repeated mails and telephonic conversations, with customer care Dept. since 03/11/2015 & 04/11/2015 the complainant was assured by the Customer Care Manager from Kolkata for resolving the issue but no result. The complainant also informed all ops through letter Dt. 12/03/2016 about this matter. The complainant has further made online complaint with the Dept. Of Consumer Affairs, Ministry Of Consumer Affairs, Food & Public Distribution, Govt. of India but no resolution. The complainant being frustrated again sent letter dt. 21/08/2017 to all ops but no reply is being received. She has also stated that due to this cooking stove problem she has to procure meals from outside and other sources.
Since the OP NO.3 refused to replace the product, so the complainant filed this case.
Notices were served upon ops.
OP NO. 1, 2 & 3 contested this case by filing Written Version.
OP NO. 4 & 5 contested this case by filing Written Version.
OP NO. 6 also contested this case by filing Written Version.
OP no. 1, 2 & 3 in their written version denied all allegations. In their written version, stating, inter alia, that the technician inspected the disputed product and noticed that the jet of the machine was open and another screw of the burner was also found open and so they have stated that the outsider has tampered the disputed machine and so the replacement was not acceptable to them and moreover they gave a proposal for repairing since the alleged cooking stove was repairable but complainant intended to enjoy the provision of replacement and so prayed for dismissal of the case.
OP no. 4 in their written version, stating, inter alia, that they are dealer and not the manufacturer of the of the cook top gas cooking stove and the instant case is barred by misjoinder of necessary parties. OP no.4 also alleged that this case has no territorial jurisdiction for proceeding against them.
They have also mentioned in their written version that the complainant has bought the said product on 25/09/2015 and the same was installed on 28/09/2015 with running in full satisfaction of the complainant without any tampering. They have denied all disputes by stating that this instant petition is fabricated by the complainant and so prayed for dismissal of the complaint case with exemplary cost.
OP no. 6 in their written version, stating, inter alia, that the complainant had purchased the cooking stove on 25/09/2015 and the same was installed on 28/09/2015 with full satisfaction of the complainant and there was no tampering at the time of installation. They have mentioned themselves as service provider of OP no.1, 2 & 3 and not the manufacturer of the said product. They have also stated that on 25/10/2015 the complainant lodged a complaint regarding the said cook top gas stove against which the technician of OP no. 6 visited on 29/10/2015 and found that the cook top was tampered by the customer / complainant and some parts were not the said cook top gas stove.
Since the complainant has tampered and some parts were not there in the gas stove, so there were no latches & deficiency in their service. As such denied all allegations against them and prayed for dismissal of this case.
The complainant has also filed one Misc. Application praying for leave to file Original Documents for the photocopies which she has already filed while registering this case. Written objections were also filed by all the Ops but the prayer of the Complainant was allowed under the provision of ORDER XIII RULE I of the C.P.C for filing Original documents of the photocopies.
The complainant has filed affidavit in chief to which OP No.1-6 have filed questionnaire against which complainant filed affidavit in reply. OPs filed evidence to which complainant filed questionnaire against which OP No.1, 2 & 3 filed Affidavit in reply.
Complainant has filed BNA.OP No.1, 2 & 3 have also filed BNA.
Main Points for Determination is to:
- Whether the Complainant is a Consumer
- Whether the case is maintainable for Territorial jurisdiction
- Whether there is any Deficiency of Service on part of Ops
- Whether the Complainant is entitled to the reliefs as prayed for
Decision with Reasons:
Point No. (i)
On perusal of the records in file, it appears that the complainant has purchased One Crystal 40 CT AI - HE – Faber Gas Cooking Stove & one Pressure Cooker 3 ltrs for a Total Price of Rs. 8650 from KARNI MARKETING PVT.LTD. i.e. OP no.4 and accordingly op no.4 issued a Tax Invoice Cum Challan no. #1355 Dt. 25/09/2015. A money receipt no.260 dt.26/09/2015 for Rs. 8650 issued by op no4 is filed by the Complainant. The Complainant has filed the Originals also to prove her case.
So there is no dispute that the Complainant is a Consumer as per CP ACT 1986.
As such point no. (i) Answered accordingly.
Point no. (ii)
OP No. 4 has alleged that this forum has no Territorial Jurisdiction for proceeding of this case against them. As per CP ACT 1986 Sec 11 (2) “A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction –
- The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
- Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be acquiesce in such institution; or
- The cause of action, wholly or in part, arises.”
Since OP NO.6 have admitted in their written version that they are the Service Provider of the Manufacturer M/S. Franke Faber and the address op no.6 is in P.S. Tollygunge which is within the Territorial jurisdiction of this Forum, so the instant case does not suffer from the Limitation of Territorial Jurisdiction.
As such Point no. (ii) Answered accordingly.
Point No. (iii) & (iv)
On perusal of the Affidavit in Reply filed by OP no.1, 2 &3 against the questionnaire no. 6 & 7 by the complainant, it reveals that the ops tried to solve the alleged defect.
On perusal of other records in file, it appears that both sides have alleged that there was some tampering in the disputed machine. Neither the Complainant nor the OPS have sought for any technical expert from where it can be ascertained whether any tampering was done or not from any of the sides.
For the sake of argument, if at all the tampering was done from Complainant’s end but the Ops have not shown any Technical expert documents showing that their product has been really tampered by an outsider instead of raising the issue of Tampering. On the other hand Complainant has also not filed any Technical expert report showing the product was defective or tampering was done.
In NCDRC TATA MOTORS VS RAJESH TYAGI & Anr in 2013 where Hon’ble NCDRC was pleased to observe
“9. It is further observed that the Consumer Protection Act, 1986 is a benevolent social legislation as held by the Hon’ble Apex Court in their judgements from time to time and is aimed at providing for better protection of the interests of the consumer as defined in the preamble to the act itself. Given the facts in hand, the interests of the consumer in the present case can be protected only if he is provided a vehicle which is free from defects from angles and he is not subjected to the technicalities of proving whether any manufacturing defect exist or not.”
Based on the above Judgement of HON’BLE NCDRC, So We hold that the Ops could have acted fast to satisfy their consumer with technical data/Report of tampering if any, before alleging that the same has been done at Complainant’s end. The Complainant knows very well it is under warranty and one will always prefer to avail free service as per the warranty conditions instead of taking service from an outsider by paying extra.
On the other hand it is admitted by the complainant that he purchased the said product on 25/09/2015 and lodged the complaint on 28/10/2015, that makes it clear that the said cooking stove was working for One month approximately.
We have perused the unsigned Printed Warranty Card issued by the Manufacturer which is also filed in Original by the Complainant. The conditions of the Warranty are as follows:-
In clause no. 1) The warranty period will be 12 months from the date of purchase. Manufacturing defects will be rectified free of cost during the said period.
In clause 5) This warranty does not cover damages traceable to alterations, unauthorised repair, tampering or alteration of any part, failure to follow instructions in installation or operation, misuse or negligence in use of the appliance or damages caused by the act of God, Lightening, fire or flood.
If there is any tampering done by the outsider, as alleged by the OPS, due to which leakage has been caused, then why the OPS were ready to repair the defect by replacing the spares as admitted by op no.1,2 & 3 in their written version which is deviating from their warranty conditions in clause no. (5).
Considering all Facts & circumstances, we hold that it was the bounden duty of the manufacturer, the dealer and the service provider to resolve the problem of the consumer instead of compelling the complainant to file this case and also being so aggrieved, she has to write letters to the CMD & GM of the manufacturing Co. for the alleged dispute.
In this matter we have relied upon Judgement passed by HON’BLE NCDRC in 2013 in TATA MOTORS VS RAJESH TYAGI & ANR where HON’BLE NCDRC was pleased to observe and passed an Order
“ 8. From the entire factual matrix of the case, it is very clearly brought out that the vehicle in question is a defective vehicle when judged from the definition of defect as contained in section 2(1)(f) of the Consumer Protection Act,1986.In reply to the legal notice dated 18.07.2003,sent by the petitioner to the Complainant, there is a non-ambiguous admission on the part of the OPs that the allegation levelled in the complaint about the defect of water accumulation inside the vehicle are true. The basic question is whether this kind of situation about the vehicle as admitted in the reply to the show cause notice cane be categorized as manufacturing defect or not. In the strict technical terminology, this kind of situation may not lead to the conclusion that there is a manufacturing defect, but still, it goes without saying that whatever defect has been observed in the vehicle for which the Complainant had to suffer the mental agony of taking the vehicle to the workshop so many times, has to be attended to in proper prospective. It is the bound duly of both the manufacturer and the dealer to attend the said defect and make it a defect- free vehicle and if they are not in a position to do so, they should either refund the cost of the vehicle or provide a new vehicle to the consumer. We, therefore, agree with the conclusion arrived at by the State Commission that whenever the brand new vehicle is sold to a consumer, there is implied contract that the vehicle being sold does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.
9. It is further observed that the Consumer Protection Act, 1986 is a benevolent social legislation as held by the Hon’ble Appex Court in their Judgements from time to time and is aimed at providing for better protection of the interests of the consumer as defined in the preamble to the act itself. Given the facts at hand, the interests of the consumer in the present case can be protected only if he is provided a vehicle which is free from defects from all angles and he is not subjected to the technicalities of providing whether any manufacturing defect exist or not.
10. Based on the discussion above, we find that it shall be fitness of things if the petitioner and the Respondent No.2 dealer who has chosen not to put appearance before this Commission, jointly make an endeavour to remove the defects in the vehicle and give a clear cut certificate signed by a senior Officer of the manufacturer, not below the rank of a General Manager, declaring in categorical terms that the4 vehicle is free from any defects. We, therefore, order accordingly and manufacturer and the dealer are permitted to carry out the necessary repairs in the vehicle, make it defect-free and handed over to the consumer along with the certificate as mentioned above within a period of three months from today.”
While perusing the documents filed by Ops, they have stated everywhere that the defective cocking gas stove can be repaired.
So we are of the opinion that there is certainly a Deficiency of Service on part of the OPS as they have could have resolve the problem of the complainant without shrugging off their responsibilities by raising the issue of tampering and therefore the complainant is entitled to the reliefs.
As such Point nos. (iii) & (iv) answered accordingly.
Complainant has prayed for Rs.1,00, 000 reimbursement expenses, mental agony, harassment which is exaggerated & no other relief is sought for in the prayer portion of the petition of complainant.
In this matter we have relied upon Judgement In Charan Singh v. Healing Touch Hospital and Others, reported in (2000) 7 SCC 668, where the HON’BLE Supreme Court was pleased to hold as follows:
“12. …... Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.”
In the instant case the Complainant has not filed any evidence showing the quantum of losses or the expenses she has to incurr for the alternative arrangement of buying food or sourcing food for her and her family due to the non functioning of the cooking stove except suffering, mental agony and mental harassment.
In our view if a direction be given upon Ops to Ascertain the defects of the Gas Cooking Stove and thereafter remove the defects for smooth functioning with a fresh warranty along with compensation of Rs.5000 and litigation costs of Rs.5000 justice would be served.
HENCE ORDERED,
CC/525/2017 and the same is allowed in part on contest against OP NO.1, OP NO.2, OP NO.3, OP NO.4, OP NO.5 & OP NO.6 with costs.
The OPs are directed to Ascertain the defects of the said GAS COOKING STOVE and remove such defects FREE OF COST and make it smooth functioning within 40 days from the date of this order.
The OP nos.1, 2 & 3 are directed to issue Fresh Warranty certificate for 12 months from the date of handing over the Defect free Gas Cooking Stove to the Complainant’s address through OP nos. 4, 5 & 6 jointly.
The OPs are further directed to pay compensation of Rs.5000 and litigation costs of Rs.5000 to the Complainant within the aforesaid period.
The liabilities of OPs are joint and several.
