Date of Filing 20.12.2023

                                                                                                             Date of Disposal: 28.05.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL.,                                                                             ...….MEMBER-I

               THIRU.P.MURUGAN, M.Com, ICWA (Inter), BL.,                                                          …….MEMBER-II

CC.No.04/2024

THIS TUESDAY, THE 28^th DAY OF MAY 2024

Mr.M.Ponniyakotti,

S/o.P.Munuswamy,

No.2/161, No.93, Thozhur Post and Taluk,

C.T.H.Road, Thiruvallur District – 602 025.                                         ......Complainant.

                                                                              //Vs//

1.The Proprietor,

    Sri Murugan Stone Merchant,

    No.8, C.T.H.Road, Lakshmipuram,

    Thiruninravur – 602 024.

2.The Manager,

    Jaquar & Company Private Limited,

    Unit No.705, 7^th Floor, Capital Towers,

    No.180, Kodambakkam High Road,

    Nungambakkam, Chennai 600 034.

3.The Manager,

   Jaquar & Company Private Limited,

   Regd. Office, C-20, S.M.A-Co-OP Industrial Estate,

   G.T.Karnal Road, Delhi -110033.                                                 .…..Opposite Parties.

Counsel for the complainant                                             :    M/s.A.Abinesh, Advocate.

Counsel for the 1^st opposite party                                    :    M/s. V.Prasad,Advocate.

Counsel for the 2^nd & 3^rd opposite party                         : exparte.

This complaint coming before us on various dates and finally on 22.05.2024 in the presence of M/s.A.Abinesh, counsel for the complainant and M/s. V.Prasad, counsel for the 1^st opposite party and opposite parties 2 & 3 were set exparte for non appearance and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainants u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties in selling a product along with a prayer to direct the opposite parties to refund the price of the Jaquar Western Toilet of Rs.10,800/-, to pay a sum of Rs.7,50,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.10,000/- towards litigation expenses to the complainant.

Summary of facts culminating into complaint:-

2. It was the case of the complainant that he was in need to setup a western Toilet and hence bought Jaquar Western Toilet and other Floor Tiles from the 1^st opposite party on 05.10.2023. The total bill amount was Rs.39,924/-which consists of 11 items and the EWC JAQUAR single piece cost was Rs.10800/-. The complainant could not setup the western toilet immediately as he has to fix the tiles first.  Because of the unavailability of the labour for fixing tiles and the climatic change the setting up of toilet delayed.  On 03.11.2023 a 15 years experience plumber came to setup the western toilet to the complainant’s house and told the complainant that the parts inside the Jaquar Western Toilet was old with continuous water leaking issue. Hence the complainant called the 1^st opposite party on 03.11.2023 and asked about the injustice happened. Thereafter as per direction of the 1^st opposite party the complainant called the Customer Care on 07.11.2023 and raised a complaint. Again the complainant called the 1^st opposite party’s worker one Mr.Suresh on 07.11.2023 to share him that he raised a complaint. Then Mr.Suresh asked the complainant to go to 1^st opposite party store to collect the new Tax Invoice bill on 07.11.2023.  The complainant went to the store and collected the new bill with Tax Invoice Number. Further it was submitted that on 08.11.2023 Jaquar Customer Care Team Member visited the complainant’s house to check the Western Toilet and told that the parts inside the western toilet contains old parts. Jaquar Customer Care Team member reported in the Service Job Card that “Open Tank Leaking issue I checking the flote was old filling value and outlet flote was one, Invoice and product photo attached in call Id” and he gave the Service Job card to the complainant.  This proves that they removed the new parts in the western toilet and replaced it with used and defective old parts.  Thus aggrieved by the act of the opposite party the present complaint was filed for the relief as mentioned above.

The crux of the defence put forth by the 1^st opposite party:-

3. The 1^st opposite party filed version disputing the complaint allegations contending interalia that the 1^st opposite party was a dealer of reputed Branded Sanitary wares such as Parryware, Hindware, Cera, Jaquar, Anuj, KAG, Johnsons, etc and they did not sell spare parts and did not undertake repairs and service. It was submitted that in case of any complaints pertaining to the quality and performance of the goods sold, the respective manufacturers and brand owner would have to solve the issues based upon the terms and conditions of guarantee and warranty. The complainant visited the 1^st opposite party’s shop on 05.10.2023 and inspected several brands and models of new western toilet units on display in the showroom.  Thereafter he closed the premium quality Juquar Brand western toilet system. Even at the time of purchase on 05.10.2023 the complainant directed the 1^st opposite party staff to open the pack and show all the parts and specifically wanted to open the top cover of Jaguar flush tank and checked that the internal parts were new and intact and only after completely satisfying himself that all parts were new and intact, he asked the commode and flush tank to be packed. The complainant had purchased and kept the Jaguar western toilet system with him from 05.10.2023 to 07.11.2023 and only afterwards he raises the alleged issue. Complainant has chosen premium quality brand of Jaguar western toilet unit.  No dealer would replace new parts with old parts.  If a person makes such a complaint more than one month after purchase and after fixing the toilet system even after his plumber allegedly informing him that the internal parts were old such allegations could not be verified and accepted. The 1^st opposite party has also filed monthly GST Return for the said sale.  The 1^st opposite party could not issue a new bill again for the same item already sold one month back.  Moreover, it would cause a serious accounting issue for the 1^st opposite party.  There could not be two bills for one product.  Therefore the complainant’s statements were false and fabricated statement.  The complainant had suppressed the invoice No.1646 dated 05.10.2023 for a total sum of Rs.39,325/- for his purchase given to him by the 1^st opposite party and had filed only the Estimate Slip to mislead this Commission.  Therefore it was submitted that they had paid GST for the first bill also on 05.10.2023 and issued a legal bill to the complainant.  The complainant has made a false statement for tarnishing the image of the 1^st opposite party. Complainant has failed to prove that the parts were replaced by the 1^st opposite part.  After one month of purchase, it could not be verified since the complainant alone was in exclusive possession of the Jaguar western toilet unit during that period. Immediately after receiving the legal notice the 1^st opposite party went to the complainant’s house for enquiry and inspection and to solve any issue.  However, upon finding that there was no truth in the statements of the complainant the 1^st opposite party left the place.  The complainant only shared the photograph of the flush tank with open top where some internal parts were visible and it could not be ascertained whether it is new or old. The 1^st opposite party’s proprietor even offered to talk to the Jaguar company persons and see it replacement can be done to mitigate the problems of complainant in using toilet immediately but the complainant was interested only in money and not replacement.  Therefore the 1^st opposite party could not help the complainant in anyway.  A person alleging fraud and cheating will have to prove his case.  The complainant has approached the commission with unclean hands.  Thus the 1^st opposite party sought for the dismissal of the complaint.

4. On the side of complainant Proof Affidavit was filed along with documents marked as Ex.A1 to Ex A13. On the side of 1^st opposite party proof affidavit was filed with documents marked as Ex.B1 to Ex.B3. Though sufficient opportunities was given to the opposite parties 2 & 3 they did not appear before this commission to file any written version and hence they were called absent and set exparte on 07.03.2024 for non appearance and non filing of written version within the mandatory period as per the statute.

Points for consideration:-

1. Whether the complaint allegations as to deficiency in service in the defective supply of the product i.e., JAQUAR western Toilet, by the opposite parties and their liability has been successfully proved by the complainant?
2.  To what reliefs the complainant is entitled?

Point No.1:-

            5. Heard and perused the evidences produced by both parties.

Manufacturing defect:

6. The factum of purchase of the product from the 1^st opposite party manufactured by the 2^nd & 3^rd opposite parties was not in dispute. However, the issue that arises for discussion is that whether there was defect in the product and whether the opposite parties could be accountable for the defect and whether the complainant needs to be compensated for the same.

7. The product was purchased as per the invoice and version of both parties on 05.10.2023. However, according to the complainant as he could not fix the tiles due to some labour issue he tried to fix the Western Toilet only after a month and thereafter found the product to be defective one which was confirmed by the Service Personnel of the opposite parties.  The 1^st opposite party argued that the defect was not their fault as the complainant at the time of purchase verified the genuineness of the product and only after satisfying, he purchased it.  Further it was argued that they are only sellers and has nothing to do with the parts of the product and could not be held liable for the internal parts found in product.

 8. As alleged by both the complainant and 1^st opposite party there is no chance for both of them to have done something damaging the product.  At this juncture we like to elucidate that the complainant did not allege any manufacturing defect with the product.  Also no report or supportive document was filed by the complainant to prove any manufacturing defect.  Hence, we could not conclude that the product supplied by the 1^st opposite party suffers with some inherent manufacturing defect though some fault was found in the product. 

Contributing Negligence on the part of complainant:-

9. Though it was contended by the complainant that he was an old person with knee pain and hence bought the disputed product, he remained silent for one month without fixing the same.  The reason alleged by him for late fixation was not a plausible explanation.  Hence, we hold that complainant was also to be held liable for some contributory negligence on his part as there arise a presumption that the product might have been damaged or manipulated in the interregnum one month period.  The fact that the complainant not approaching the opposite party immediately complaining about the defect in the product keeps him in a disadvantageous position.  Thus, we hold that complainant was to be blamed for the contributory negligence on his side.  Hence, we cannot hold the opposite party entirely responsible for the defect in the product.  Thus the point answered accordingly holding that though the defect was established, the fact of manufacturing defect and the entire liability on the opposite parties remains unestablished or unproved.  Also, complainant has no locus to question about the GST payment of the opposite parties as he was no way related to it and the GST payment is not related to the averments in the complaint.

 Point No.2:-

10.  As we have held above that the complainant was also responsible for the defect in the product was not disputed and as the 1^st opposite party was ready to replace the product which offer was not accepted by the complainant, we direct the 1^st opposite party to refund the cost of the product on return of the product by the complainant.  As both parties are equally to be held liable we hold complainant not entitled for any compensation.  Litigation cost of Rs.5000/- is awarded to complainant.

In the result, the complaint is dismissed against the 2^nd and 3^rd opposite parties and partly allowed against the 1^st opposite party directing them

a) To refund a sum of Rs.10,800/- (Rupees ten thousand eight hundred only) to the complainant within six weeks from the date of receipt of copy of this order and complainant to return the product;

b) To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant;

c) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 12% per annum will be levied on the said amount from the date of complaint till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 28^th day of May 2024.

       Sd/-                                                          Sd/-                                                       Sd/-                                                                                                

 MEMBER-II                                            MEMBER-I                                        PRESIDENT

List of document filed by the complainants:-

List of documents filed by the 1^st opposite party:-

   Sd/-                                                                  Sd/-                                                     Sd/-

MEMBER-II                                                 MEMBER-I                                    PRESIDENT