Orissa

Rayagada

CC/102/2017

Sri Maheswar Patra - Complainant(s)

Versus

The Manager, Ambica Motors - Opp.Party(s)

Self

22 Dec 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 102/ 2017.                                            Date.   22     .     12  . 2018

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                       President.

Sri  Gadadhara  Sahu,                                           Member.

Smt. Padmalaya  Mishra,                                     Member.

Sri Maheswar Patra,  S/O: Purusotam Patra, At:Paik  Street, Po:Durgi,   Dist: Rayagada,Pin No. 765019, Cell No. 98611-44145.                                                                                                                                      …Complainant.

Versus.

The Manager, Ambica Motors, At/Po;Muniguda, Dist:Rayagada, State:Odisha, Pin No. 765 020.                                                                                                                                                                                 … Opposite parties.

Counsel for the parties:                         

For the complainant: - Self.

For the O.P:- Set exparte.

                                                                               

JUDGEMENT

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for non refund of Rs.2,091.00 which was charged  during the warranty period  towards repair and replacement of spares to the two wheeler for which  the complainant  sought for redressal of the grievances raised by the complainant.

Upon  Notice, the O.P   neither entering in to appear before the forum nor filed their  written version inspite of more than  10 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P.  Observing lapses of around 1 year  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.P.  The action of the O.P  are against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P   was set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

We therefore proceed to dispose of the case, on its merit.

Heard.  We perused the complaint petition and the accompanied  document filed by the complainant.

FINDINGS.

Undisputedly the complainant had purchased one Hero HF Deluxe drum self start  from the O.P.  vide Invoice  No. 188-2016-2017  Dt. 7.11.2016   after making  payment  of Rs.  47,353/-(copies of the  invoice is in the file which is marked as Annexure-I).   The O.P.  gave  warranty  of one year and assured the complainant  to carry out repairs/replacements of the spare parts free of cost in case of any fault within the warranty period. The above  two wheeler  developed  some defects  on Dt.  26.6.2017.  The complainant sent the  above two wheeler on Dt. 26.6.2017 to the O.Ps premises  for  carrying out repairs  but the O.P. insisted  for payment.  The O.P. has replaced some parts of the above two wheeler and charged of Rs. 2,091/- (copies of the  retail invoice dt.26.6.2017   is in the file which is marked as  Annexure-2).  Alleging deficiency in service, the complainant  filed complaint   against the O.P  for refund of amount a sum of Rs.2,091/- which was charged by the  O.P.  within warranty  period. Hence this C.C.case.

For better appreciation  this forum  relied citations  which are mentioned here under:-

It is held and reported in Current Consumer Case  2005  Page No. 527 (NS) in the case of Meera &Co Ltd. Vrs. Chinar Syntex Ltd  where in the Hon’ble National Commission  observed “Consumer-    Generating set purchased -  defects developed  during  warranty  period - repairs done on payment - dealer can not be absolved from his liability   because manufacturer has not  been impleaded- dealer deficient in service- order  to dealer   refund   amount with interest to the complainant.”

Again It is held and reported  in CTJ-2005, Page No. 1208 where in  the hon’ble  National Commission   observed  “Both the dealer & manufacturer of the  product having defects  in it, are jointly and severally liable to the  purchaser, because he knows only the dealer from whom he purchased that  product and not its manufacturer”. 

 

Further   It is held and reported in CPR- 2009 (2) Page No. 42  where in  the Himachal Pradesh  State Commission  observed “ we may mention here that it is by now well settled that the C.P. Act, 1986 is a welfare  legislation  meant to give  speedy  in expensive and timely justice to the parties. Similarly it is also well know that where  two views are possible, one favourable to the consumer needs to be followed.”

           

            Again it  is  held and  reported in  Consumer Law today 2014(1) page No. 153 where in the  Hon’ble  Goa State Commission observed “The tax invoice duly   signed by dealer can be considered to be an agreement between the parties subject to which the   sale was   made to the  consumer – liability for defect in article sold both the dealer and manufacturer  are jointly and severally. 

 

We are of the opinion that the case  is relating to defective goods  which is covered under section 2(i)(f) of the C.P. Act. The C.P. Act  which provides that  “Defective means any fault, in imperfection or shortcoming in the quality, quantity, potency, purity are standard which is required to be maintained by or under any law for the time being in force”.                                                                  After amendment made by  the C.P. Act   of 2002 wherein it  is made clear that when a complainant  is using the product of the Hero Manufacturing company   purchased from the  present  O.P.  is also coming within the definition of consumer and the service provided  or attached to the said  goods in the shape of warranty or guarantee is also available to the users.

Since the  above  two wheeler     was sold by the   O.P., it can not evade  liability  for repair/replacement of spare parts on the ground of manufacturer of the  two wheeler  with whom the  complainant did not have any privity of contract , having  not been impleaded as party to the complaint  or service was to  be  affected. Further the complainant  will be a consumer within the meaning of Section 2(1)(d) of C.P. Act, 1986.

In the present case in hand    the defects therein developed  within warranty period of one year. For the best interest of justice  in our opinion the O.P. should  refund the above  amount to the complainant   which was   received  on Dt.26.6.2017  a  sum of Rs.2,091.00.

Further we observed the O.Ps are not rendering proper service to the complainant establishes their callousness and whimsical attitude. The  forum feel that the O.Ps services are deteriorating and does not follows   ethics.  Due to the same attitude  the complainant deprived of  to get the good service during warranty period.

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is Aliane Juris. Hence  we allow the above complaint petition  in part.

Hence to the meet the ends of justice the following order is passed.

                                                ORDER.

In resultant the complaint stands allowed in part  on exparte.

The O.P. is directed to refund  Rs.2,091.00  to the complainant inter alia to pay  Rs.500.00  towards cost of litigation.

This  is to  be  complied   by the O.P.  within 30 days  from the date of receipt of this order  failing which  interest @  Rs. 9%   per annum  would  accrue on. on the award amount  from the date of filing i.e. on 1.8.2017 till realization.

Copies of the order be served  on the parties free of cost  as per rule.

Dictated  and corrected by me. 

Pronounced on  this        22nd.  December,2018. 

Member.                              Member.                                          President.