IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

Thursday the 23^rd day of September, 2021.

                                      Filed on 19-03-2020

Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt. P.R Sholy, B.A.L,LLB (Member)

In

CC/No.81/2020

between

Complainant:-                                                              Opposite parties:-

Sri.Bibin P.V                                            1.      The Managing Director

Pozhikkadavil Thekketh                                   Khaja Trading Co.

Punnapra P.O.                                                    North of Iron Bridge, Alappuzha-1

Alappuzha -688004

(Party in person)                                       2.       The Sales Manager

                                                                             Khaja Trading Co.

                                                                             North of Iron bridge

                                                                             Alappuzha-688 001

                                                                             (Adv.Sri.Jayan C Das for opps.)

O R D E R

SRI. S.SANTHOSH KUMAR (PRESIDENT)

Complaint filed under Sec.12 of the Consumer Protection Act, 1986. 

Material averments briefly stated are as follows:-

On 16.09.2019 complainant purchased a compressor-25, Ladder, pressure washer toyo-110 and grinder from M/s Khaja trading company.  The sales manager assured that all equipments are having 6 months warranty.  After two weeks the compressor became defective and it was entrusted for repairs.  Though they assured that it will be returned after one week when complainant visited to collect the same it was informed that company had sent a new compressor.  After 3 weeks compressor manufactured by a different company was given for temporary use.  Inspite of repeated request compressor manufactured by M/s BAC which was purchased by him was not given.

2.      Pressure washer toyo 110 became faulty and it was entrusted for repairs.  Opposite parties demanded Rs.1950/- for repairs.  He is not liable to pay the same since it was within warranty period.  Hence the complaint is filed for realizing an amount of Rs.30,000/- as compensation for mental agony.  Complainant is also seeking a direction to gave the compressor of BAC company which was purchased originally or to pay Rs.8,900/- being the amount of the same.  Complainant is also seeking direction to repair pressure washer toyo 110 free of cost since within warranty period.  He is also seeking Rs.5,000/- as cost.

3.      Opposite parties filed version mainly contenting as follows:-

          The complaint is not maintainable.  On 16.09.2019 complainant had purchased the equipments.  Since the compressor became faulty it was sent for repairs during the warranty period.  Since it was time consuming complainant was supplied with a new compressor without any payment due to the consumer relationship.  Complainant had entrusted pressure washer toyo 110 for repairs.  It was sent for repairs to M/s globe enterprises Trivandrum since they are the wholesale dealers.  On inspection it was revealed that complainant had entrusted the same for repairs somewhere else and so it is not possible to repair under warranty.  Complainant was not ready to pay the amount.  Now it is kept after repairs and the complainant can take the same on payment. 

4.      M/s Globe enterprises, Future plaza Trivandrum is the dealer of the equipments.  They are giving the warranty and hence they are necessary party.  Complaint is bad for non-joinder of necessary party and so it is to be dismissed.  There was no mental agony and difficulties from the part of opposite parties and hence the complaint may be dismissed with cost. 

5.      On the above pleadings following points were raised for consideration :-

1. Whether there is any deficiency of service on the part of the opposite parties?
2. Whether the complainant is entitled to get compressor BAC 25 which was purchased by him from the opposite parties or in the alternative entitled to realize Rs.8,900/- being the price of the same?
3. Whether the complainant is entitled to get the pressure washer toyo 110 repaired under warranty?
4. Whether the complainant is entitled to realize an amount of Rs.30,000/- as compensation?
5. Reliefs and costs?
6.      Evidence in this case consists of the oral evidence of PW1 and Exts.A1 from the side of the complainant.  Opposite parties have not adduced any evidence either oral or documentary.
7.    Point No. 1 to 4

PW1 is the complainant in this case.  He filed an affidavit in tune with the complaint and marked Ext.A1. 

8. The case advanced by PW1, the complainant is that as per Ext.A1 bill on 16.09.2019 he purchased four equipments/ machineries from the shop of 1^st opposite party wherein 2^nd opposite party is the sales manager.  It was assured that the equipments are having a warranty of six months.  However within 2 weeks the compressor became faulty and he entrusted the same with the opposite party for repairs.  They demanded more time for repairs and they gave another compressor for his use.  Similarly pressure washer toyo 110 also became faulty and it was entrusted for repairs during warranty period.  They demanded Rs.1950/- being the amount for repairs.  It was not acceptable for him since it was warranty period.  Hence he filed the complaint.  Opposite parties filed a joint version admitting the purchase.  However they contented that the compressor became faulty and so another compressor was given to the complainant to keep the good relationship with the customers.  Secondly when the pressure washer toyo 110 was entrusted for repairs to the dealer it was informed that it was repaired earlier somewhere else.  It was contrary to the warranty conditions and they demanded Rs.1950/- for repairs.  It was also contented that M/s Globe enterprises, Trivandrum who are wholesale dealers are necessary parties and so the complaint is hit by non joinder of necessary parties.  Though opposite parties filed a detailed version they did not enter the witness box to prove their case on or oath.  Complainant was examined on 25.03.2021 and there after the case was posted to 27.03.21, 30.03.21 and 03.04.21 for opposite parties evidence.  On 03.04.21 a witness schedule was filed and summons was issued to the witness to appear on 17.04.21.  Though the witness accepted summons, the witness was absent.  Since the witness was residing outside jurisdiction (Trivandrum) of this Commission warrant could not be issued.   (Order 16 Rule 19 CPC).

    As discussed earlier though a detailed version was filed opposite party did not enter the witness box to prove their case on oath.  As held by the Hon’ble Surpeme Court in AIR 1999 SC 1441(Vidhyadhar Vs Manikrao)

 “WHERE a party to the suit does not appear into the  witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”

9. It is to be noted that inspite of granting several opportunities opposite party did not adduce any evidence.  It is noted that the shop of the opposite party is at North of Iron Bridge which is about 5 Kms away from this Commission. 
10.  Coming to the facts of the case as per Ext.A1 bill dtd. 16.09.19 complainant purchased four equipments.  The 3^rd item is compressor BAC 25 and the price is Rs.8,900/-.  The second item is pressure washer toyo 110 and the price is Rs.9850/-.  According to PW1 after about 2 weeks of purchase the compressor became faulty and it was entrusted for repairs.  Though they gave another compressor of different company he was unable to use the same.  Per contra it was contented in the version that opposite party gave another compressor in lieu of the earlier one for his use.  Complainant insists upon the brand purchased by him as per Ext.A1 bill and he cannot be blamed for that.  The 2^nd allegation is that the pressure washer toyo 110 was given for repairs during warranty period.  After repairs opposite parties demanded Rs.1950/- being the repair charges.  According to PW1 he is not liable to pay the same since it was within warranty period.  In the version it is contented that the equipment was repaired somewhere else and so they are not liable to repair the same under warranty.  Though such a contention is taken in the version no evidence is available in support of the same.  As stated earlier in such circumstances an adverse inference can be drawn against the opposite parties.  Though PW1 was thoroughly cross examined nothing was brought out to discredit his testimony.  In such circumstances the case of complainant stands proved and he is entitled for reliefs.  Though he is claiming an amount of Rs.30,000/-as compensation, considering the entire facts of the case we are limiting the same to Rs.10,000/-.  These points are found accordingly.
11. Point No.5

In the result complaint is allowed in part.

1. Opposite parties are directed to give compressor BAC 25 which was purchased by PW1 as per Ext.A1 bill.  Complainant will return the compressor supplied by the opposite parties for temporary use. In the alternative, complainant is allowed to realize an amount of Rs.8,900/- (Rupees Eight thousand and nine hundred only) along with interest @ 9% from the date of complaint ie, on 19.03.2020 till realization.
2. Opposite parties are directed to repair pressure washer toyo 110 free of cost and return to the complainant since it is within the warranty period.
3. Complainant is allowed to realize an amount of Rs.10,000/- (Ten thousand only) as compensation from the opposite parties.
4. Complainant is allowed to realize an amount of Rs.2000/- (Two thousand only) as cost.

The order shall be complied within one month from the date of the receipt of copy of this order.

Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 23^rd  day of September, 2021.

Sd/-Sri.S.Santhosh Kumar (President)

Sd/-Smt. P.R Sholy (Member)

Appendix:-

Evidence of the complainant:-

PW1                    -        Sri.Bibin P.V (Witness)

Ext.A1                -        Bill  dtd.16.09.2019

Evidence of the opposite parties:- NIL

// True Copy //

To

          Complainant/Oppo. party/S.F.

                                                                                         By Order

                                                                                    Senior Superintendent

Typed by:- Sa/-

Compared by:-