BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 31st August 2009
COMPLAINT NO.50/2009
(Admitted on 25.02.2009)
PRESENT: 1. Smt. Asha Shetty, B.A. L.L.B., President
Sri. K. Ramachandra, Member
BETWEEN:
Mr.P.S.Mani,
So. Sebastian,
Njavallil House, Thotattadi Village,
Kakkinje Post, Belthangady Taluk,
Dakshina Kannada District. …….. COMPLAINANT
(Advocate for the Complainant: Sri.P.A. Joseph)
VERSUS
The Proprietor,
SKADS Branch Belthangady,
Baliga Tower, Main Road,
Belthangady 574 214. ……. OPPOSITE PARTY
(Advocate for the Opposite Party: Sri.M.S.Krishnaprasad).
***************
ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT;
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.
It is submitted that Complainant had purchased one Otori Built Brush Cutter on 9.1.2008 for his agricultural purpose from SKADS branch Belthangady by paying Rs.13,520/-. It is submitted that Complainant could not use this brush cutter not even for three days thereafter the Complainant approached the Opposite Party and the Opposite Party agreed that he will speak to the higher authorities. Thereafter the Complainant approached several times but his request was not materialized. Thereafter Complainant sent a legal notice on 21.1.2009 the Opposite Party received the legal notice again assured the Complainant that he will refund the entire amount but till this date neither refunded the amount nor attended the complaint of the Complainant hence it is contended that the service rendered by the Opposite Party amounts to deficiency and the machine purchased by the Complainant is defective. Hence the above complaint is filed by the Complainant 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 Hon'ble Forum to the Opposite Party to replace the brush cutter with a new one and also pay the loss incurred by the Complainant with 18% interest on Rs.13,520/- and Rs.5,000/- claimed 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 submitted that this Opposite Party is only a dealer. The manufacturer of the above said machine is not made a party and further submitted that there is no defect in the brush cutter sold to the Complainant.
It is further submitted that in January 2009 the Opposite Party had received the notice from the Complainant’s advocate. Thereafter the Opposite Party had contacted the Complainant and the Complainant stated that he had sold the machine and he is not interested in the complaint. Therefore no reply was sent to the said notice. It is further submitted that the brand name of the equipment stated in the complaint is wrong. After receiving the notice, the technical personnel of the Opposite Party had gone to the Complainant’s place for inspection and verification of the machine. The technical person found that the Complainant is using some other different machine and not the machine which was sold by the Opposite Party and it is submitted that the Complainant filed a false complaint and there is no deficiency or defect in the machine 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 complaint is bad for non-joinder of necessary party? And whether the Complainant proves that the Otori Built Brush Cutter purchased by him from the Opposite Party suffers from any defect?
If so, whether the Complainant is entitled for the reliefs claimed?
What order?
4. In support of the complaint, Mr.P.S. Mani (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C5 were marked for the Complainant as listed in the annexure. One Sri.M.V.Banninthaya (RW1), Secretary and Chief Executive of the Opposite Party filed counter affidavit and answered the interrogatories served on him. Ex R1 and R2 were marked for the Opposite Party as listed in the annexure. The Opposite Party has 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) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
In the instant case, the facts which are not in dispute is that the Complainant purchased one Otori Built Brush Cutter on 9.1.2008 for his agricultural purpose from SKADS branch Belthangady i.e., Opposite Party by paying Rs.13,520/- (as per Ex C3). It is also not in dispute that the Opposite Party is approved service dealer.
Now the point in dispute between the parties are that the Complainant alleged that he could not use the above brush cutter not even for 3 days thereafter the Complainant approached the Opposite Party several times and also issued legal notice dated 21.1.2009 inspite of that the Opposite Party not rectified the defects nor replaced or refunded the amount as sought by the Complainant.
On the contrary, the Opposite Party contended that, this Opposite Party is only a dealer, the manufacturers are not made as party. Further submitted that the brush cutter sold by the Opposite Party is not defective. That after receipt of the legal notice the technical personnel of the Opposite Party had gone to Complainant’s place for inspection and verified the machine, at the site the technical personnel found that the Complainant is using some other different machine and not the machine which was sold by the Opposite Party.
We have considered the evidence of Complainant as well as the Opposite Party and also perused the Ex C1 to C5 and R1 and R2.
We find that, the brush cutter TB-590 BC ENG No.IF137D sold by the Opposite Party for Rs.13,520/- on 9.1.2008 to the Complainant. As per the warranty card the said machine has two years warranty commencing on the date of original purchase. That the Ex C1 is the operator’s manual, wherein in the 1st page itself it is made it clear that the unit is manufactured by foreign countries but in the operator’s manual the manufacturer made clear as under:-
This product is covered by one or more US patents. Other patents pending. Service on this unit both within and after the warranty period should be performed only by an authorized and approved service dealer. And further this unit if it requires replacement, the consumer has to ask local service dealer to install the accessory part. When such being the case, the entire responsibility in this case on the part of the Opposite Party. Ex C2 is the warranty card attached to the operator’s manual, Ex C3 i.e., the VAT cash memo issued by the Opposite Party and the Ex C4 is the legal notice dated 21.1.2009. It could be seen that as per the warranty the above said machine has two years warranty and the Complainant approached the Opposite Party within the warranty period is proved.
The Opposite Party took a contention that the Opposite Party is only a dealer, the manufacturer has not made as a party is not acceptable because in operator’s manual as we discussed in preceding paras the Opposite Party is responsible for the unit both within and after the warranty period. Under such circumstances, it is their duty to rectify the defects and if not possible to rectify then it is the duty of the SKADS Co-operative Society to replace the unit or refund the amount. And further we find that the Opposite Party as a dealer received the amount and the defect found within the warranty period. The Opposite Party being a dealer admitted that he is a dealer of the above said machine and the Complainant had infact paid the price of the unit to the Opposite Party. We are not aware of the arrangement between the dealer and the manufacturer of the above said machine except the contents stated in the operator’s manual. The Opposite Party having received the amount and having undertaken to do free service and rectify any defect during the period of warranty or otherwise cannot escape their liability even towards manufacturing defect found in the machine. No doubt, the Complainant in his complaint had not arrayed the manufacturer a party. Even though the manufacturer not made as a party the joint and several responsibility in regard to the manufacturing defect found in the unit cannot be wiped out. The manufacturer is an international Company, it may however be open for the Opposite Party to work out their remedy against the manufacturer depending on the arrangement between them and the manufacturer. Hence even though the manufacturer not made as a party in this particular case will not take away the right of the Complainant to file a complaint before this FORA.
As far as defect of the unit is concerned, the legal notice issued by the Complainant reveals that he had approached the Opposite Party personally several times and on failure to rectify the defects the Complainant issued the above legal notice can be acceptable. However, it could be seen from the version filed by the Opposite Party in Para No.10 in 4th line specifically admitted that after receiving the notice the technical personnel of the Opposite Party had gone to the Complainant’s place for inspection and verification of the machine, at the site the technical personnel found that the Complainant is using some other different machine and not the machine which was sold by the Opposite Party. From the above admitted statements as well as the evidence of the Opposite Party i.e., answer to the interrogatories dated 31.7.2009 in reply No.15 and 16 further admitted that Mr.Gopanna Gowda mechanic is their employee visited/checked the machine. But no such report is produced before the FORA drawn by the technical person one who visited/verified the machine. We find that the technician ought to have drawn a report whether he had verified the machine or not nor the Opposite Party should have examined Mr.Gopanna Gowda, Mechanic who verified the machine. Except the oral averments nothing has been placed before the FORA. Apart from the above, we have noticed that the Opposite Party is not certain on his stand because in the version in para 10 as we discussed in preceding paras stated that the technical personnel of the Opposite Party had gone to the Complainant’s place for inspection and verification of the machine, at the site the technical person found that the Complainant is using some other different machine and not the machine which was sold by the Opposite Party. But in reply to the interrogatories No.15 and 16 served by the Complainant in answer stated that Mr.Gopanna Gowda mechanic i.e., Opposite Party’s employee verified the machine. From the above evidence it is proved that the Opposite Party in one breath states that there is no machine found and in another breath states that the mechanic verified the machine. If that is so the report could have been drawn by the concerned mechanic to substantiate the same. In the absence of the same, adverse inference can be drawn against the Opposite Party that the machine supplied by the Opposite Party is not in working condition and hence some other machine is kept by the Complainant. It is proved that the machine sold by the Opposite Party is out of order.
Once it is established that the unit had certain manufacturing defects which could not rectified despite the appointment of technical personnel by the authorized dealer it can be considered that the machine is not working and proved to be defective.
The another contention taken by the Opposite Party is that the Complainant was obtained Rs.6,760/- as subsidy in October 2008. If the machine was not in order, the Complainant would not have obtained the subsidy in October 2008. This contention is not acceptable because the issuance of subsidy is a separate issue which is not connected to the defect of the unit is concerned.
In view of the above discussion, we are of the considered opinion that the service rendered by the Opposite Party amounts to deficiency and also the machine purchased by the Complainant is not in working condition which is out of order. By considering the above, we hold that the Opposite Party is hereby directed to replace the new Otori Built Brush Cutter TB-5909BC ENG NO-IF137D with fresh warranty by taking back the defective brush cutter from the Complainant. In case of failure to comply the same, the Opposite Party shall refund Rs.13,520/- to the Complainant. Further the Opposite Party is hereby directed to pay Rs.5,000/- as compensation for the inconvenience and the harassment caused to the Complainant and Rs.1,000/- awarded 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. Opposite Party is hereby directed to replace the new Otori Built Brush Cutter TB-5909BC ENG NO-IF137D with fresh warranty by taking back the defective brush cutter from the Complainant. In case of failure to comply the same, the Opposite Party shall refund Rs.13,520/- (Rupees thirteen thousand five hundred and twenty only) to the Complainant. And further Rs.5,000/- (Rupees five thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses to the Complainant. 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 – Mr.P.S.Mani – Complainant.
Documents marked on behalf of the Complainant:
Ex C1 – : Operator’s Manual pertaining to the Brushcutter.
Ex C2 – : Notarized copy of the warranty by Troy-Bilt LLC.
Ex C3 – 09.01.2008: Bill/VAT cash memo pertaining to the brush cutter.
Ex C4 –21.01.2009: Legal notice issued to the Opposite Party by the Complainant.
Ex C5 - : Postal acknowledgement.
Witnesses examined on behalf of the Opposite Party:
RW1 – Sri.M.V.Banninthaya, Secretary and Chief Executive of the Opposite Party.
Documents marked on behalf of the Opposite Party:
Ex R1 – 09.01.2008: Copy of the Invoice/cash memo No.1258 issued to the Complainant.
Ex R2 – 13.03.2009: Letter of Asst. Agricultrual Director, (Z.P.) Belthangady.
Dated:31.08.2009 PRESIDENT
