BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 17/2002 Filed on 11.01.2002

Dated : 30.06.2010

Complainant:

Rajesh Jeevan, General Manager, Indus Motor Co. Ltd., T.C 2/1418, Pattom P.O, Thiruvananthapuram-4.

Opposite parties:

1. Baron International represented by its Managing Director, Mrs. Shakun Mulchandani, 3^rd floor, Zenith Building, Race Course Road, Mahalaxmi, Mumbai-34.

    

2. M/s Baron International Ltd., 4/2118, K.V. Towers, Marappalam, Pattom, Thiruvananthapuram-4.

    

3. Quilon Radio Service, T.C 28/2498, M.G. Road, Thiruvananthapuram.

This O.P having been taken as heard on 15.05.2010, the Forum on 30.06.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Complainant purchased one Aiwa Music System (NSX V 28) with serial No. 23103 on 12.02.2001 at a price of Rs. 16,990/- from the 3^rd opposite party. The Aiwa Music System is manufactured by the 1^st opposite party and the 3^rd opposite party is its dealer at Thiruvananthapuram. 2^nd opposite party is the service centre of Aiwa Brand products. The said music system had a warranty for a period of one year from its date of purchase i.e; 12.02.2001. The said music system had inherent defects and showed problems right from the inception and its audio system was not working properly. The sound quality was very poor. The matter was reported to the 3^rd opposite party and the 3^rd opposite party directed the complainant to approach the 2^nd opposite party who is the authorized service centre of Aiwa Brand products. There was no response from the 2^nd opposite party. The defect in the music system continued and the problem deteriorated further. The music system got totally broken down and the same was given for repairing on 21.08.2001 to the 2^nd opposite party. Till date the 2^nd opposite party neither returned the system after rectifying the inherent defects nor got a satisfactory response. On 24.10.2001, complainant sent a letter to 1^st and 2^nd opposite parties explaining the whole position. But there was no response to the said letter. From the very inception the music system was defective. The malfunctioning of the music system during the course of the warranty period establish that the music system is having manufacturing defects which cannot be cured or rectified. Further the music system did not have the quality mentioned in the brochure. The service which the opposite parties offered during the warranty period, was deficient in every respect. Opposite parties have committed unfair trade practice and deficiency in service. Opposite parties have supplied a music system, which is having inherent manufacturing defects, which cannot be cured or rectified and they are liable to take back the said music system. Opposite parties are liable to refund the price of the music system with interest and further complainant is entitled to compensation for deficiency in service, mental agony and monetary loss.

In this case 3^rd opposite party the dealer of the music system has filed their version. Other opposite parties accepted notice from this Forum, but did not turn up to file version. In the version 3^rd opposite party submitted at the outset itself that no complaints have been made out against the 3^rd opposite party in the complaint and as such the complaint is not maintainable as against the 3^rd opposite party. The 3^rd opposite party is even as evidenced by the complainant, an unnecessary party to the complaint and the complaint is therefore bad for mis-joinder of parties. As stated above, the complaint does not mention anywhere as to how and why the 3^rd opposite party is guilty of deficiency of service or unfair trade practice or as to how the 3^rd opposite party is liable to compensate the complainant. The only averments regarding the 3^rd opposite party have been made in paragraphs 1 to 4 wherein it is mentioned that, the complainant purchased one Aiwa music system (NSX V 28) with serial No. 213103 on 12.02.2001 for Rs. 16,990/- manufactured by the 1^st opposite party, from the 3^rd opposite party. The warranty is for one year as evidenced by the warranty card, which is issued by the manufacturer the 1^st opposite party. All other averments in paragraphs 1 to 3 are denied. The averments pertaining to the 3^rd opposite party contained in paragraphs 4 of the complaint are denied in toto. Complainant had never reported regarding any defect to the 3^rd opposite party. Neither had the 3^rd opposite party directed the complainant to approach the 2^nd opposite party. The complainant has never approached the 3^rd opposite party after the date of purchase of the said music system. The other averments in paragraph 4 are not known to this opposite party and have nothing to do with the 3^rd opposite party and are hence denied. In this context it is mentioned that the 1^st opposite party company has closed down and the owner of the company has filed the scene as seen from newspaper reports. The 2^nd opposite party service station has also closed down and no wages have been paid to the technicians there. The complainant's case is that he had entrusted the set with the 2^nd opposite party, which is not in existence now. It is submitted by the 3^rd opposite party that the 3^rd opposite party is ready to carry out necessary repairs, if necessary to cure the alleged defects if any in the said music system and return the same to the complainant, if the same is handed over to them by the complainant. It is hence prayed that this Hon'ble forum may direct the complainant to hand over the said music system to the 3^rd opposite party, so that the defects, if any could be rectified. It is submitted that the complaint relates to manufacturing defect and unfair trade practice, for which the 1^st opposite party is liable and deficiency of service, for which the 2^nd opposite party is liable. As stated above, the 3^rd opposite party, has not been approached till date and if approached, the 3^rd opposite party is willing to cure the defects if any. The fact that the complainant has no complaints as against the 3^rd opposite party is apparent from the fact in paragraph 5 of the complaint that the complainant had sent letters regarding the said alleged defect to the 1^st and 2^nd opposite parties alone. The averments contained in paragraphs 5 to 9 of the complaint are unknown to this opposite party and are hence denied. The fact of alleged defect, if any, is denied as the 3^rd opposite party has not had an opportunity to verify the said appliance in order to see whether there was in fact any manufacturing defect. The claim of compensation for deficiency in service, mental agony etc. is without basis and is not legal or justified. The further averment in paragraph 7 of the complaint that the said music system had inherent manufacturing defects, which cannot be cured or rectified is without any basis. Manufacturing defect can be determined only after examining the said appliance. It is submitted that the 3^rd opposite party is not liable to compensate the complainant.

In this case complainant has filed proof affidavit and produced 4 documents to prove his contentions. 3^rd opposite party did not adduce any evidence.

The points that would arise for consideration are:-

1. Whether there is deficiency in service or unfair trade practice occurred from the side of opposite parties?

2. Whether the complainant is entitled to get the reliefs and costs sought for?

Points (i) & (ii):- In this case complainant has filed proof affidavit and produced 4 documents, which were marked as Exts. P1 to P4. Complainant had purchased the music system on 12.02.2001 at a price of Rs. 15,990/- from the 3^rd opposite party, the dealer, which is manufactured by the 1^st opposite party. The said music system had inherent defects and showed problems right from the inception and its audio system was not working properly. Immediately the matter was reported to 3^rd opposite party and the 3^rd opposite party directed the complainant to approach 2^nd opposite party which is the authorized service centre. Complainant entrusted the music system to the 2^nd opposite party. The set was neither repaired nor returned. This is the case of the complainant. 1^st and 2^nd opposite parties did not turn up to contest the case. 3^rd opposite party is the only contesting party. 3^rd opposite party contends that no allegations regarding deficiency are made against them. They contended that the complainant never approached the opposite party after the date of sale of the music system. The 3^rd opposite party undertook to repair the said music system if it had any defects, if it is produced before them. Since the case of the complainant is, there is manufacturing defect in the music system, the 3^rd opposite party who is a dealer is not liable for manufacturing defect. These are the contentions of both side. To prove their contentions they have adduced evidence. Ext. P1 is the photocopy of invoice dated 12.02.2001, which evidences the purchase of the music system from the 3^rd opposite party. As per this document the price of the music system is Rs. 15,990/-. Ext. P2 is the photocopy of warranty card dated 12.02.2001. As per this document the music system had a warranty for a period of one year from the date of purchase i.e; 12.02.2001. Complainant had given the music system to the 2^nd opposite party for repairing on 21.08.2001, i.e; within the warranty period. Ext. P3 is the photocopy of job sheet issued by the 2^nd opposite party dated 21.08.2001. Ext. P4 is the notice issued by the complainant to the 1^st and 2^nd opposite parties. The complainant alleged that the music system has manufacturing defects. But the complainant has not taken any steps to furnish expert opinion regarding manufacturing defects as per Sec. 13(1)(c) of Consumer Protection Act in this case. As per the decision of Hon'ble Supreme Court reported in 1999 CTJ 313 Supreme Court (CP) “the procedure prescribed under Sec. 13(1)(c) of the Act was not capable of being followed because the complainant was not in possession of the tyre and tube. There is no material to show that the appellant had returned the tyre and tube to the respondent. That being the factural matrix, no fault can be found with the District Forum, the State Commission or the National Commission in the matter of not following the procedure under Sec. 13(1)(c) of the Act”. In the instant case the set is in the possession of the 2^nd opposite party. It is also admitted by the 3^rd opposite party that the 2^nd opposite party, the service centre has been closed down. Under the said circumstances, the burden of proof to prove that there was no defect in the set is on the opposite party. In this case the music system is in the possession of the 2^nd opposite party who is the authorized service centre of the 1^st opposite party. 3^rd opposite party admitted that the 2^nd opposite party service station has been closed down. The 1^st opposite party is vicariously liable for the acts of the 2^nd opposite party, its authorized service centre. The complainant purchased the music system from the 3^rd opposite party and the 3^rd opposite party has also some responsibility in this type of unfair trade practice. The customers have direct contact only with the dealers. Hence the dealer has also some responsibility to the customers for the after sales services. It is the duty of the dealer to settle the problems of their customers in this type of dealings. The dealer should have directly contacted the manufacturer and initiated to settle the matter. In Ext. P2 warranty card the 3^rd opposite party has affixed their seal. From the above said discussions we find that the complainant has succeeded in establishing his complaint and hence we find that there is manufacturing defect in the music system and the 1^st opposite party is liable for that defect. There is deficiency in service and unfair trade practice from the side of 3^rd opposite party also. Hence the complaint is allowed.

In the result, the 1^st and 3^rd opposite parties are directed to refund Rs. 15,990/- with 9% interest per annum from 12.02.2001 till the date of realization. Opposite parties 1 & 3 shall also pay Rs. 5,000/- as compensation and Rs. 2,000/- as costs of the proceedings. Time for compliance one month from the date of receipt of the order. Otherwise 12% annual interest shall be paid to the entire amount till the date of realization.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of June 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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O.P. No. 17/2002

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of Bill No. 23103 dated 12.12.2001 for

Rs. 15,990/- issued to the complainant by the 3^rd opposite

party.

P2 - Photocopy of warranty card dated 12.02.2001 issued to the

complainant by the 3^rd opposite party.

P3 - Photocopy of job sheet issued by the 2^nd opposite party.

P4 - Photocopy of letter dated 24.10.2001 addressed to 1^st and 2^nd

opposite parties by the complainant.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT

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