BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 31st August 2009
COMPLAINT NO.46/2009
(Admitted on 16.02.2009)
PRESENT: 1. Smt. Asha Shetty, B.A. L.L.B., President
2.Sri. K. Ramachandra, Member
BETWEEN:
Sri.K.Dayananda Rai,
Advocate,
Room No.12, Medifair Complex,
Karangalpady, Mangalore 3. …….. COMPLAINANT
(Advocate for the Complainant: Sri. Sathish K.)
VERSUS
The Proprietor,
Electrical Point,
Essel Chambers, Karangalpady,
Mangalore 3. ……. OPPOSITE PARTY
(Advocate for the Opposite Party: Sri.Vinaya Kumar).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging defect in goods against the Opposite Party claiming certain reliefs.
On 12.8.2008 the Complainant had purchased one L.E. 4344 Spiral-Light CFT 15 W bulb 22 6500K (L) by paying a sum of Rs.186.67 from the Opposite Party. It is submitted that at the time of purchase of the bulb the Opposite Party had promised that the bulb will last for a period of 10,000 hours and in the event of any defect it will be replaced. As per the assurance, the Complainant purchased the above bulb and fixed in the office premises. It is submitted that on 29.8.2008 the aforesaid bulb had been burst in the office premises and immediately the Complainant approached the Opposite Party and requested the Opposite Party to replace the aforesaid bulb. The Opposite Party refused to replace the bulb and thereafter the Complainant issued a lawyer’s notice dated 6.9.2008 for the replacement of the bulb but the Opposite Party did not comply the same. Hence the Complainant filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to replace the above bulb and also to pay Rs.12,500/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Party by RPAD.
Opposite Party appeared through their counsel filed version. It is submitted that at no point of time the Complainant had approached the Opposite Party and demanded replace of bulb and further submitted that the Opposite Party received a notice dated 6.9.2008 from the Complainant demanding replacement of bulb and the Opposite Party replied on 23.9.2008 and called upon the Complainant to produce the original invoice and the burst bulb and assured to replace the same after verifying/inspecting/checking the invoice and defects if it is within the warranty period. It is contended that the Complainant has not come to the shop and failed to comply the same and it is submitted that the Complainant has filed false case and there is no deficiency in service and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the bulb purchased by him is proved to be defective and entitled for the replacement?
- Whether the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.Dayananda Rai (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C4 were marked for the Complainant as listed in the annexure. The Complainant produced defective bulb which is marked as MO1. One Mrs.Precilla M. Sequira (RW1), Proprietrix of the Opposite Party filed counter affidavit and answered the interrogatories served on her. The Opposite Party produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) to(iv): As per the final order.
Reasons
5. Point No. (i) to (iv):
On consideration of documents and materials placed before the FORA it is admitted by the parties that on 12.8.2008 Complainant purchased one L.E. 4344 Spiral-Light CFT 15 W bulb 22 6500K (L) as per invoice No.8020 and paid a sum of Rs.186.67 from the Opposite Party. It is also not in dispute that as per the manufacturer’s declaration/guarantee the bulb will last of 10,000 hours and if any electronic defects found in the bulb then the same will be replaced free of cost.
In this case, the Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex C1 to C4. The Ex C1 is the invoice proved that the Complainant purchased the above product from the Opposite Party. Ex C2 i.e., office copy of the lawyer’s notice dated 06.09.2008 and Ex C3 is the postal acknowledgement served to the Opposite Party shows that the bulb purchased by the Complainant on 12.8.2008, before the guarantee period i.e., on 29.8.2008 had been burst in the office premises of the Complainant, the said legal notice further shows that the Complainant approached the Opposite Party and requested to replace the bulb but the Opposite Party refused to do the same.
On the contrary, the Opposite Party though admitted that the bulb has been sold by the Opposite Party as per the invoice and it is submitted that the said bulb as per the declaration of the manufacturer will last for a period of 10,000 hours and in the event of any electronic defects it will be replaced at free of cost. However the Opposite Party denied the manufacturing defects of the bulb and subsequently contended that the said bulb is damaged due to the negligence of the Complainant or their staff.
In the given case, no doubt the Opposite Party not made the manufacturer as a party to the proceedings but the Opposite Party in their version in Para 8 as well as in their reply notice dated 23.9.2008 (i.e., Ex C4) committed that in case of defect in the bulb within the warranty period after checking/inspecting/verifying assured to replace the bulb in question. Under such circumstances, we are not aware of the arrangement between the Opposite Party and the manufacturer of the above said bulb. The Opposite Party having received the amount and having undertaken to inspect/verify/checking and assured to replace the bulb if it is found defective during the period of warranty cannot escape from their liability even towards the manufacturing defect found in the bulb. In view of the matter both the Opposite Party and the manufacturer could be jointly and severally responsible with regard to the manufacturing defect found in the bulb. Just because the manufacturer not made as a party the complaint cannot be thrown out. It may however be open for the Opposite Party to work out her remedy against the manufacturer depending on the arrangement between Opposite Party (dealer) and the manufacturer.
As far as the defect is concerned, the Opposite Party has taken a specific contention that no point of time Complainant had approached the Opposite Party and demanded replacement of bulb. The Opposite Party has neither seen nor spoken to the Complainant. Further contended that the Opposite Party received the notice dated 6.9.2008 for the 1st time and suitably replied on 23.9.2008 to produce the original invoice and the burst bulb before her and contended that the Complainant has not come with defective bulb.
It is significant to note that the legal notice of the Complainant dated 6.9.2009 served to the Opposite Party reveals that the Complainant had approached the Opposite Party personally and informed the incidents and requested to replace the aforesaid bulb. But the Opposite Party denied that no point of time Complainant had approached the Opposite Party and demanded replace of bulb which is not acceptable because normally no consumer wants to approach the court of law if the matter settled amicably. Likewise no consumer will issue the legal notice until and unless initial approach/offer of the consumer is rejected by the service provider. In the given case, we do not agree with the Opposite Party that before issuance of the legal notice dated 6.9.2009 the Complainant not approached the Opposite Party. Therefore, the contention of the Opposite Party in this regard is overruled.
We further find that, on receipt of the Complainant’s legal notice dated 6.9.2009, the Opposite Party instead of visiting the Complainant’s premises to see whether the bulb was damaged due to the negligence of the Complainant or their staffs or due to electronic defects called upon the Complainant to produce the bulb appears to be not reasonable. However, no such attempt was made by the Opposite Party as a service provider. In this case, the Opposite Party not taken any steps except issuing a reply notice to the Complainant.
It is significant to note that, the defective bulb was produced before the FORA by the Complainant and the Opposite Party sought a permission from the FORA to verify the bulb during the pendency of this complaint. And subsequently filed version contended that it has no manufacturing defect and the same has been cut due to the negligence of the Complainant and their staff. Apart from the above, the counsel of the Opposite Party produced another similar burnt bulb and tried to convince the FORA that in case of manufacturing defect the bulb will get burnt below the chock and argued that the defective bulb produced by the Complainant is not burnt below the chock but it has been cut at the bottom of the bulb because of the negligence of the Complainant.
In the given case, we have compared both the bulbs, on careful scrutiny of both the bulbs it could be seen that the bulb which relied by the Opposite Party counsel is a burnt bulb where black colour can be seen just below the chock of the bulb and the lower part of the bulb is intact. Whereas the defective bulb relied by the Complainant is not burnt but the same has been burst on the bottom of the bulb could be seen. Hence the argument of the Opposite Party counsel cannot be accepted until and unless it is proved by a report that the bulb is electronically no defect. If at all the Opposite Party is so confident, the bulb could have been sent for the expert opinion because the Opposite Party committed in their version that only after verifying/ inspecting/checking if the bulb found is defective within the warranty period then only the bulb will be replaced free of cost. Under such circumstances, it is left open to the Opposite Party to show that the bulb is electronically perfect. No such report has been produced. Only by assumption and presumption the Opposite Party has come to the conclusion that the bulb has no manufacturing defect it has burst due to the negligence of the Complainant and their staff.
In view of the above discussion, we are of the considered opinion that the bulb sold by the Opposite Party was burst within short period in fact the said bulb has a guarantee that the bulb will last for a period of 10,000 hours. We have been convinced that the bulb sold by the Opposite Party is proved to be defective. Therefore, we hold that the Opposite Party is hereby directed to replace the new bulb L.E. 4344 Spiral-Light CFT 15 W bulb 22 6500K (L) to the Complainant by taking back the defective bulb produced before the FORA. And further Rs.1,000/- awarded as compensation towards the harassment and inconvenience and Rs.1,000/- as cost of the litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party is hereby directed to replace the new bulb L.E. 4344 Spiral-Light CFT 15 W bulb 22 6500K (L) to the Complainant by taking back the defective bulb produced before the FORA. And further Rs.1,000/- (Rupees one thousand only) awarded as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31st day of August 2009.)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SRI. K.RAMACHANDRA)
APPENDIX
Witnesses examined on behalf of the Complainant:
CW1 – Sri.Dayananda Rai – Complainant.
Documents marked on behalf of the Complainant:
Ex C1 – 12.08.2008: Invoice No.8020 issued by the Opposite Party to the Complainant.
Ex C2 – 06.09.2008: Office copy of the lawyer’s notice.
Ex C3 – 09.09.2008: Postal acknowledgement.
Ex C4 – 23.09.2008: Reply to the above legal notice.
MO1 – L.E. – 4344 Spiral – Light CFT15 W Bulb 22 65009 K(L).
Witnesses examined on behalf of the Opposite Party:
RW1 – Precilla M. Sequira – Proprietrix of the Opposite Party.
Documents marked on behalf of the Opposite Party:
- Nil -
Dated:31.08.2009 PRESIDENT
