Orissa

Debagarh

CC/22/2015

Sri Suresh Chandra Kishan, aged about 30 years, S/o-Ishwar Chandra Kishan - Complainant(s)

Versus

The Proprietor, M/S. Brasha Electronics, - Opp.Party(s)

05 May 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

DEOGARH

                        CD Case No.19/2015.

 

Shri P. C. Mahapatra, Member and Smt. Jayanti Pradhan, Member

 

Suresh Chandra Kishan,

Son of Ishwar Chandra Kishan,

At present at Deogarh Town,

P.S/P.S/Dist/-Deogarh.                                  …    Complainant.

 

          Versus

 

1.,       The Proprietor,

M/S.Barsha Electronics,

At/-Kalla, Post/-Kalla,

P.S/-Barkote, Dist/-Deogarh.,

2.       Shiva Engineering Co.Ltd.

          S.E.C. Kolkatta (INDIA)

                                                                     …   Opposite Parties.

 

Date of Hearing: 26.04.2016, Decided on 05.05.2016.

            Counsel for the parties:

            For the Complainant:         Nemo

            For the Opposite Parties:  None.

 

O R D E R

 

SHRI PRATAP CHANDRA MAHAPATAR, MEMBER: - succistinctly facts of the case is that the complainant, a permanent resident of village Badakudar Post/- Badakudar, P.S.-Barkote in the district of Deogarh purchased a S.E.C table fan from the O.P.no.1 on 5.6.2014 for a consideration of Rs.1,450/- only with guarantee for one year assured from the O.P.No.2, who is the manufacturer of the Table Fan. Within the period of warranty, only after eight months from the date of purchase the complainant found the said fan to be defective which he reported to O.P.No.1 on 20.5.2015 and produced the said fan for repairing . On 21.5.2015 the O.P.no.1 demanded Rs.50/- for replacement of new wire during warranty period. The O.P.no.1 kept the fan under his custody from 20.5.2015 to 24.5.2015 and on 25.5.2015 delivered it to the petitioner but the petitioner found the same defects present in the Fan, which he had reported to the O.P.1 and OP1 did not responded. The petitioner severally requested the O.P.1 to remove the defects or to replace the same with a new one for proper domestic used of the same but the request turned futile. The petitioner send request letter to the Opp.Parties for replacement or refund the purchase price within 7 days but the Opp.Parties remained silent and hence this petition .

          The complainant further alleged that the defective fan is lying in- operative condition in the house of the complainant for which the petitioner is sustaining mental pain and agony due to the deficiency in service caused by both the Opp.Parties. The petitioner relied on the xerox copy of the warranty card issued by O.P.no.1 having its seal and signed in the column of dealer rubber stamp , which prima-facie reflect that the fan was sold by O.P.no.1 to the complainant on 5.6.2014 . As it is reveals from the customer name and address. The guarantee logo very clearly reflects that the fan was sold with one year guarantee. O.P.1 having received the notice have felt to file his written version, while O.P.2 avoided the notice sent through Regd. Post with AD. Not to defeat the spirit of the act and rules both Opp.Parties were declared expartee and Expartee hearing was done on 26.4.2016. O.P.No.2 being the manufacture of the product though is a proper party but is not a necessary party in as much as the fact that the privity of contract of the complainant lies with O.P.1, and none of the parties will be prejudiced if O.P.2 is declared expartee. In the case of Electro Audio Vission –versus- M/S Diddan Construction [2014 (1) C.L.T.428 (M.L)] where it has been held”(i) Consumer Protection Act,1986 2(1)(g)- Necessary party-Proper Party-Manufacturer-Held-That an necessary party is that in whose absence the court cannot pass an effective decree-At the very highest the original manufacturer may be a proper party in this case –Merely because the manufacturer may be a possible party is no ground for holding in the reverse that he is a necessary party whose non-joinder would be fatal to the whole proceedings – Apart from the above, The Consumer Protection Act ,1986 , is a beneficial statue enacted for the better protection of the interests of consumers – It is not to be shackled with the intricacies and niceties and technicalities of the civil procedure – The proceedings under the C.P.Act the primarily simple and summery in nuture .(para 6).

(ii).Consumer Protection Act,1986,Section 2(1)(g)-Defective mobile-Liability of Manufacturer – Dealer directed to pay compensation –Held-If the dealer has any claim against the manufacturer , he is left with liberty to pursue the same in separate proceeding before appropriate forum in accordance with law.(para 8).

 (iii).Consumer Protection Act,1986, Section 2(1)(g)-Defective mobile-Liability of Manufacturer-Plea of appellant that complaint is not maintainable as manufacturer is not party-Plea rejected – Held – That the Appellant is an independent dealer and not an agent of the manufacturer of the mobile phone in question – Had he been an agent , the matter would have been otherwise – Hence, he cannot wash off his hands after making a sale and shift his burden to the manufacturer nor can he insist that the manufacturer be added as a party to the proceedings – A consumer is primarily concerned with the person from whom he buys the goods , as privity a contract is between them and not with the manufacturer – Ordinarily , it is for the Appellant dealer to take care of the complainants concerns , where after he can take up the matter with the manufacturer for securing his own interests –Otherwise , the Consumer Protection Act,1986 would become totally unworkable and for every small complaint a consumer would have to involve the manufacturer who, although no doubt a proper party , is not a necessary party – In this view of the matter , the liability of the Appellant dealer for sale of defective goods to the consumer is beyond question.

In applying the ratio of the aforesaid case, we are of the opinion that in the instant case Opp.Party No.1 is deficient of providing service.

 

 

 

 

                                       ORDER

                   Under premises above I feel it quite justified to order O.P.1 to replace the defective fan with a new one of the same make and model if not available O.P.1 shall have  to pay Rs.1450/- (one thousand four hundred fifty) to the complainant within  45 (forty-five) days of receipt of this order also the mental agony sustained by the complainant O.P.1 is directed to pay Rs.1000/- (one thousand)  as compensation and Rs.500/- (five hundred) as cost of litigation failing which he has to pay an interest @ 12% per annum on the above amount till it is actually realies in the due process of law .

                   Office is directed to supply free copies of order to parties concerned obtaining acknowledgement thereof.

                   Order is pronounced in the open court today i.e. the 5^th day of May, 2016 under my hand and seal of this forum.

 

I     agree,

 

MEMBER.                                                        MEMBER.

                       Dictated and Corrected

                                By me.

 

                              MEMBER.