Delhi

North East

CC/97/2016

Suman Verma - Complainant(s)

Versus

The Owner Shree Jee Trader's - Opp.Party(s)

12 Jul 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 97/16

 

In the matter of:

 

	Smt. Suman Verma W/o Sh. Dinesh Singh R/o D-2/11/14, DLF Colony, Dilshad Extn. II, Near Bhopura Chowk Sahibabad, Ghaziabad, U.P.	Complainant
	Versus
1.       2.	The Owner / Dealer Shree Jee Trader’s Pocket-1, 32-A, Dilshad Garden, Delhi-95.   The Manager Pragati Enterprises C-21, Shahni Tower, Sector-5 Near M4U Cinema Hall, Rajender Nagar Ghaziabad, U.P. 201010	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

23.03.2016 12.07.2018 12.07.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Case of the complainant as made out in the present complaint is that she had purchased one Morphy Richards Steam Iron Dolphin Model/Serial No. T041SII6070908629 from OP1 dealer on 21.04.2014 for a sum of Rs. 1500/- vide invoice / bill no. 079. The said Iron carried a guarantee of two years from the date of purchase. However, the said iron started giving problem of non heating on 14.08.2015 for which the complainant informed the OP1 which gave the complainant customer care number of Morphy Richards (manufacturer). Accordingly the complainant registered a complaint vide complaint No. 7505152 with Morphy Richards customer care on 14.08.2015 on which complaint the service engineer of the manufacturer visited the premises of the complainant on 17.08.2015 and on checking the iron refused to remove the defect by stating reason that the cash memo of steam iron issued by OP1 was without TIN number. Next day on 18.08.2015 the complainant again called up the customer care several times to look into her grievance but her went unattended and therefore the complainant vide e-mail dated 20.08.2015 and 25.08.2015 to the customer care of the manufacturer apprised the manufacturer of her grievance waiting to be addressed. In response to the above mentioned e-mails, the complainant received e-mail dated 26.08.2015 forwarded from BCCD Noida (Pragati Enterprises), service centre, OP2 herein to the complainant  stating that its technician had already visited her place and found guarantee card blank (no dealer stamp) and as per serial number (07-2009), product out of guarantee and was therefore repairable on chargeable basis. The complainant had served a legal notice dated 02.02.2016 on the OPs seeking refund and other damages for the defective iron but was neither replied to nor her problems addressed by the OPs. The complainant was therefore constrained to file the present complaint before this Forum alleging no redressal of her grievance by the OPs despite being under obligation in terms of  the iron being under guarantee, defect in the iron due to poor workmanship of the manufacturer and negligence shown by the OPs while dealing with her complaint and prayed for issuance of directions against the OPs for refund of Rs. 1500/- towards price of Morphy Richards Steam Iron, Rs. 16,800/- calculated @ Rs. 100/- per day for 168 days for non functional iron causing her harassment inconvenience, frustration ironing cost and mental agony and Rs. 11,000/- towards cost of legal notice.   

The complainant has attached copy of cash memo no. 079 dated 21.04.2014 of steam iron purchased from OP1, copy of guarantee card from the manufacturer showing two years guarantee and bearing name and address of OP1 against the dealer, copy of e-mails dated 20.08.2015, 25.08.2015 and 26.08.2015 and copy of legal notice dated 02.02.2016 with postal receipts.

2. Notice was issued to the OPs wherein OP1 appeared and filed its written statement on 28.07.2016. It was observed by this Forum that despite correct address of OP2, it was evading acceptance of notice and not receiving the summons of this Forum intentionally and was therefore proceeded against Ex-parte vide order dated 10.04.2017.
3. Written statement was filed by OP1 in which it while admitting the factum of purchase of Morphy Richards steam iron by the complainant from it on 21.04.2014 vide bill no. 079, took the preliminary objection that at the time of purchase the OP1 had issued the bill alongwith manufacturer’s guarantee card pertaining to the said steam iron but the complainant did not implead the manufacturer thereof and instead wrongly impleaded the OP1 whereas the manufacturer was liable for defect in the said steam iron. OP1 further stated that on request of complainant it had given the customer care number of the manufacturer to the complainant and that TIN number of OP1 was not required for any manufacturer warranty since the liability to remove any defect in the product was that of the manufacturer as per the warranty card and not of the dealer / agent. The OP further urged that it was not in receipt of any e-mail by the complainant and submitted that the warranty card of the said steam iron was duly stamped by it and the date of warranty commences / start from the date of its purchase against the manufacturer and therefore urged that the complainant has wrongly impleaded OP1 with the malafide intension to extract huge amount from OP1 and denied any deficiency of service and prayed for dismissal of complaint.
4. Rejoinder to the written statement of OP1 was filed in rebuttal by the complainant in which the complainant stated that as per section 1/26 of Indian Contract Act, the seller i.e. the OP1 will perform the promise at the time of selling of goods/products as the OP1 was doing the work as surety of the contract and the contract of guarantee is defined as ‘the person in respect of whose default the guarantee is given is called as principal debtor and the person to whom is guarantee is given is called as creditor’. The complainant further submitted that as per section 73 of Indian Contract Act, the OP1 breach the contract with the complainant and the section clearly defined that ‘monetary compensation allowed for loss suffered by the aggrieved party due to breach of contract and the damages are awarded for such loss suffered by a party which is a natural, direct or proximate consequence of breach’. The complainant further submitted that she is liable to recover compensation from OP1 as ‘the damages can be recovered only if the special circumstances which was resultant in special loss in case of breach of contract are communicate to other party’. The complainant rebutted the defence taken by OP1 that the TIN number of dealer / agent was not required or that e-mails of complainant were not received by OP1 and warranty card was not stamped by OP1. The complainant submitted that under a contract of ‘sale of goods, if there is a breach of warranty, the seller is liable to pay all damages which the purchaser has to pay to the person to whom the goods are sold by him whether the  seller is aware of such a sale or not. In order that the purchaser should be able to claim such damages and costs, it is an overriding requirement that sub contracts should have been made on the same terms and conditions as the first contract’. The complainant lastly denied the allegations of the OP1 of wrongly impleading OP1 and that the manufacturer company is liable to remove defects in the steam iron without OP1 having any concern in this regard or liability to pay any amount to the complainant.
5. Evidence by way of affidavit was filed by the complainant reiterating his grievance in the complaint and rejoinder to the written statement of OP1 and exhibited copy of retail invoice dated 21.04.2014, copy of guarantee card, copy of e-mail to Bajaj electrical, copy of legal notice dated 02.02.2016 alongwith postal receipts and tracking report of the delivery thereof.
6. Evidence by way of affidavit was filed by OP1.
7. Written arguments were filed by the complainant and OP1 which were reproduction of their respective complaint case / defence.
8. We have heard the rival contention of both the parties and have perused the documentary evidence placed on record by both the sides in support of their respective claim/defence.

It is not in dispute that the steam iron in question of the make Morphy Richards Dolphin was purchased by the complainant from OP1 on 21.04.2014 vide invoice no. 079. The complainant has not arraigned the manufacturer Morphy Richards as one of the OP and has filed the present complaint against the dealer and the service centre for seeking damages therefrom to which the OP1 has raised objections as having being wrongly impleaded and the complaint not being maintainable due to mis-joinder and non-joinder of parties. We do not find force in the said argument. The Hon’ble National Commission in the case of Blue Chip India Vs Dr. Chandrashekhara Patial (2006) 3 CPR 247 (NC) has ruled that the consumer had no privity of contract with the manufacturer of the product and therefore joinder of manufacturer as a party in the complaint was not at all necessary for complaint regarding defective goods purchase from dealer and upheld the decision of the Fora below. Further consideration the provision of section 226 of Contract Act, it cannot be said that agent or dealer is not jointly and severally liable for defects as the contract through the dealer. Therefore privity of contact is with him. The Hon’ble National Commission in Phillip Mampilil Vs Premier Automobiles Ltd had further held that though it is true that normally such liability with regard to manufacturing defects is to be borne by the manufacturer, but, that would not mean that the dealer is absolved from joint and several liability.

In the present case OP1 has nowhere disputed that the problem / defect occurred in the steam iron in question and in fact during the course of arguments had also submitted that it was willing to rectify the defects therein through its service centre but the offer was belated and not acceptable to the complainant since she had already purchased another steam iron. We have applied our judicial mind to the present case and after appreciation of the documentary evidence and pleadings on record, are of the considered view that OP1 and OP2 are guilty of deficiency of service in providing / selling a defective steam iron to the complainant which went out of use in less than one year of purchase and despite the same being covered under warranty, the same could not be repaired by OP1 or OP2 for reasons best known to them but cited as no TIN number of OP1 on invoice and no stamp of OP1 on guarantee card for non repairs.

9. We therefore direct OP1 and OP2 jointly and severally to refund              Rs. 1,500/- towards the price of Morphy Richards steam Iron to the complainant, Rs. 5,000/- as compensation for harassment and inconvenience and Rs. 2,000/- as cost of litigation / legal notice payable to the complainant within 30 days of receipt of this order, failing which penal interest of 9% shall be payable by OP1 and OP2 jointly and severally to the complainant on the total awarded sum of Rs. 8,500/- from the date of passing of this order till the date of realization. However the OP1 and OP2 are directed to pay the awarded sum to the complainant initially in compliance of the said order and are at liberty to claim reimbursement from the manufacturer as has been held by Hon’ble National Commission in Ashoke Khan Vs Abdul Karim (2006) 1 CPR 173 (NC) before appropriate civil court. The Hon’ble national Commission in Laxmi Automobiles Vs Lal Kunwar Chaudhry (2006) 1 CPR 53 (NC) had upheld the contention of the dealer in revision that primary liability to reimburse the amount of refund on account of manufacturing defects in the vehicle is that of the manufacturer to dealer where latter (dealer) has paid it to complainant.  
10.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on  12.07.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member