COMPLAINT FILED ON: 30-09-2009

DISPOSED ON: 15-12-2010

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

15^TH DECEMBER 2010

       PRESENT :-SRI. B.S.REDDY                PRESIDENT                        

                         SMT. M. YASHODHAMMA    MEMBER    

                         SRI.A.MUNIYAPPA               MEMBER              

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party 1 and 2  (herein after called as O.P) to pay Rs.7,050/- or to replace new wash basin with cost on the allegations of deficiency in service.

2.      The brief averments made in the complaint are as follows:

          On 25.09.2008 the complainant purchased printed designed glass wash basin from OP-1 for a sum of Rs.7050/-. The cash bill issued by OP-1 is produced. At the time of purchasing the said wash basin OP-1 promised quality of the goods and also after sales services. When complainant insisted for the issue of guarantee card OP-1 told complainant that no separate guarantee card is required, cash bill itself can be used as guarantee card. Within 2 months of purchase of the said wash basin. Complainant has noticed a small crack in the centre of the wash basin and same was gradually developed in the central part of the basin. Complainant felt that it is a manufacturing defect and product is of poor quality.  Immediately he informed the same to OP-1. From the office of OP-1 one Mr.Jithendra informed the complainant to contact OP-1 for replacement of the product. After repeated requests the said Mr.Jithendra visited the house of the complainant and inspected the wash basin and informed the complainant to contact OP-1 for settlement. Hence complainant visited the shop of the OP-1 several times and requested for replacement of the said wash basin. OP-1 failed to respond. On 08.09.2009 complainant himself physically taken the said wash basin to the shop of the OP-1 and shown the defects.  Unfortunately OP-1 is flatly refused to replace the said wash basin and abused the complainant in foul language. Finally on 09.09.2009 complainant issued notice to the OP-1 calling upon OP-1 to replace the said wash basin with a new one. Though the said notice was duly served on OP-1 there was no response.  Hence complainant felt deficiency in service against the OPs. Under the circumstances he is advised to approach this forum for the necessary relief’s.

3.      On appearance OP-1 filed version admitting the fact that complainant purchased the printed designed glass wash basin from OP-1 on 25.09.2008 vide cash bill No.585. The said wash basin was in immaculate condition when delivered to the hands of the complainant. The complainant after due inspection and thorough checkup selected the wash basin which was in good condition without any damage/breakages; Complainant after confirming that there is no defect selected the best glass wash basin and same was explained as to how carefully it has to be fixed and how his family members has to handle it safely after fixing it up as what he has purchased is made up of glass. Complainant insisted after sales services. OP explained that same is not as electrical item as such extending sales service and warranty period will not arise and question of issuing guarantee card will also not arise as it is a glass product and life of the product depends upon careful handling and usages; Complainant after using the product for nearly one year has noticed the defects on 09.09.2009 and has caused the notice; The damages so called is due to mishandling of product.  OP-1 admits that complainant asked for the replacement of the product but OP has explained about its mishandling the product has resulted in such breakage for which he cannot hold OP -1 as liable such product is made of glass which needs maximum care. OP-1 admits the issuance of notice by the complainant and same was acknowledged by OP-1 and OP-1 has caused suitable reply for the same. Alleged crack of the wash basin since same being developed at the centre part to the basin might have caused while complainant transporting the same to his residence or getting it fixed by the unskilled persons or by dropping some objects mishandling in basin would be reason for causing damages noticed by the complainant. OP-1 after receiving the request of the complainant immediately sent one Mr. Jitendra during august 2009, who after thorough checkup held that same was not manufacturing defect and said damage has caused due to mishandling of the product. Since the damage caused from the complainant’s end the Supplier/Manufacture cannot be held responsible for replacement of product. If it were to be manufacturing defect OP-1 was willing to replace it because his supplier will exchange for which OP-1 will not lose anything from his hand; Complainant subject to the bill condition purchased the product on the said day. OP-1 being the agent cannot extend guarantee/warranty on his own without manufacturer extending the same to him.  Complainant has not suffered any mental loss for the deficiency in service. Among other grounds OP-1 prayed for dismissal of the complaint.

4.      When the matter was posted for hearing arguments on merits, complainant filed application seeking direction against OP-1 to furnish the name and address of the manufacturer. OP-1 filed a memo on 03.04.2010 and furnished address of the manufacturer. Application filed by the complainant to implead the manufacturer as OP-2 allowed. Complainant amended the complaint. Notice sent to OP-2 returned with an endorsement insufficient address. On 23.09.2010 complainant filed a memo stating OP-1 has furnished false address of the manufacturer and OP-1 has received the price of the goods and sold the defective product and prayed to allow the complaint against OP-1

5.      To substantiate the complaint averments, complainant filed his affidavit evidence and produced cash bill dated 28.09.2008 and five numbers of photos of cracked wash basin and copy of the legal notice, served acknowledgement card. On behalf of OP-1 Mr. Elumalai, proprietor of OP-1 filed his affidavit evidence and OP-1 has not produced any documents. Complainant failed to furnish the correct address of OP-2. Hence notice not served to OP-2.  Heard arguments of the complainant. Taken as heard from OP-1 side.

6.      From the above pleadings, the points now that arise for our consideration in this complaint are as under:

Point No. 1 :- Whether the complainant has Proved

                     the deficiency in service on the part of

                       the OPs?

     Point No. 2 :- If so, whether the complainant is

                    entitled for the relief’s now claimed?

     Point No. 3 :- To what Order?

6.      We have gone through the pleadings of the parties, both affidavit and documentary evidence and the arguments advanced.  In view of the reasons given by us in the following paragraphs our findings on the above points are:

Point No.1:- In Affirmative

Point No.2:- Affirmative in part

Point No.3:- As per final Order.

R E A S O N S

7.      At the out set it is not in dispute that the complainant on 25.09.2008 purchased a printed designed glass wash basin from OP-1 for a sum of Rs.7050/-. To substantiate the said fact he has produced the cash bill dated 25.09.2008 issued by OP-1. At the time of purchasing the said wash basin. OP-1 promised quality of the goods and also offered after sale services.  When complainant insisted for issuance of guarantee card OP-1 told that no separate guarantee card is required, the cash bill itself can be used as guarantee card. The complainant claims that within 2 months of purchase, the said wash basin developed small crack in the centre of the wash basin same was gradually developed.  Complainant immediately informed the same to OP-1 one Mr.Jithendra from OP-1 office visited the house of the complainant and inspected the wash basin and suggested the complainant to talk to OP-1 for replacement of the said wash basin.  Inspite of repeated requests OP-1 failed to respond. Hence on 08.09.2009 complainant himself took the said wash basin to the shop of the OP-1 and showed the defects. OP-1 flatly refused for the replacement and started abusing the complainant. Left with no alternative on 09.09.2009 complainant caused legal notice to OP-1 calling upon to replace the said wash basin with a new one.  Inspite of notice there is no response.  Hence complainant approached this forum.

8.      As against the case of the complainant, the defence of the OP-1 is that the said wash basin was in good condition when delivered to the complainant.  Complainant after due inspection and thorough checkup selected the wash basin which was in good condition without any damage/breakage; Complainant after confirming that there was no defect selected the best glass wash basin and OP-1 has explained as to how it has to be fixed and handle safely after fixing it up as what it was he has purchased is made of glass and question of issuing guarantee card will not arise as it is a glass product and life of the product depends upon careful handling and usages. Complainant after using the product for nearly one year has noticed the defects on 09.09.2009.

9.      Complainant has stated in his affidavit clearly that within 2 months of the date of purchasing the said glass wash basin developed cracks. Hence the contention of the OP-1 that after one year of purchase the said wash basin developed cracks is not correct. Secondly the defence of the OP is that due to mishandling while transporting or while getting it fixed by the unskilled persons crack must have developed. In the absence of any supporting evidence the defecne of the OP-1 cannot be accepted. OP-1 cannot wash of his hand stating that product is made of glass. The glass wash basin supplied to the complainant is a defective one. Further it is contended by OP-1 that one Mr. Jithendra, after thorough checkup and investigation held that same was not a manufacturing defect and said damage caused due to mishandling of the product. OP-1 failed to get filed the affidavit of Mr. Jithendra in support of its contention. Hence the same cannot be accepted.  We have perused affidavit evidence of the complainant and documents produced along with photos. From the photos we can clearly make out the craks developed inside the wash basin. We are satisfied that complainant is able to prove deficiency in service on the part of the OPs.  Further it is contended by OP-1 that it has given reply to the notice of the complainant dated 09.09.2009. But OP has failed to produce any evidence in support of its contention; hence the same cannot be accepted.  Inspite of service of notice there is no response from OP-1. The dealer is also equally responsible for the supply of defective goods to the consumers. The complainant has noticed the cracks developed in the wash basin supplied, within 2 months of its purchase, he has used the same till 08.09.2009 the date on which he took the wash basin to OP-1 demanding to replace the same. Under these circumstances taking into consideration of all the facts and circumstances we are of the considered view that ends of justice would be met by directing OP-1 to refund an amount of Rs.5,000/-.  Accordingly we proceed to pass the following order:

ORDER

          Complaint is allowed in part. OP 1 is directed to pay Rs.5,000/- being part of cost of the designed glass wash basin and pay litigation cost of Rs.500/- to the complainant. Complaint against OP 2 dismissed for not taking steps. This order is to be complied within four weeks from the date of its communication failing which complainant is entitled for interest at the rate of 9% p.a. from 09.09.2009 till realization.

          (Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 15^th December 2010)

                                                PRESIDENT

                MEMBER                                          MEMBER

gm.