DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 15^th day of March 2019

Present   : Smt.Shiny.P.R. President

                : Sri.V.P.Anantha Narayanan, Member                       Date of filing:  19/12/2016

CC/202/2016

Haridas.M,

S/o.Manikkan,

Korath House,                                                                         -  Complainant

Vettukulambu veedu,

Thenari P.O,

 Elappully, Palakkad.

(By Adv.U.Suresh)

Vs

1.  The Proprietor,

    Yemkey Home Appliances

    Opp.Water Authority Office,                                                         

    Kalmandapam Jn,

    Kunnathurmedu P.O,

    Palakkad 678 001.

    (By Advs.K.Dhananjayan & Sunish.K.Abraham)

2.  Bajaj Electricals Ltd,

    CRL House, 42/1107, Tata Oil Mills Road, Ernakulam.      -  Opposite parties.

    Cochin – 682 018.

    (Rep.by its Senior Customer Care Manager A.J.Jacob)

3.  M/s Navajeevan Electro Service, Bajaj and Morphy

    Richards Services, Muscot Tower (Chella Tower)

    Manjakulam Road, Palakkad

   (Rep.By its Manager)

4.  Menon’s Distributors,

    Room No.28/548/9 Bun, 1.3 Sha Complex, West Palace Road,

    Thrissur- 680 020.

(Supplemental Opp.parties 2 to 4 as per amendment carried out as per orders in IA/130/2017 and IA/137/2017 dated.15.10.2017)

                                                            O R D E R

By Sri.V.P.Anantha Narayanan, Member

Brief Facts of the case are explained below. 

The case of the complainant is that he purchased one fan with product description “W/FAN-BW2000” for a total price of Rs.2,689.99/- along with one “SS SPOON” “One Million Lunch Box Food Fund Big” and one “Polyset container” from M/s YemKay Home appliances vide retail invoice number 2731 dated.28.05.2015 for Rs.2,930/-.  Opposite party also issued one card offering one year warranty for free repair/replacement of fan for one year from the date of purchase.  The complainant could use the fan smoothly for around six months only; then it stopped working and the complainant brought the fan along with the warranty card to the opposite party.  Who received the fan for undertaking free repair/service and returned the same after two days and gave an assurance that the fan was repaired and there would not be any future problem; opposite party also conducted a test run of the fan in front of the complainant and the complainant received back the fan from the opposite party.   Two days later the fan again stopped working and the complainant approached the opposite party with the fan who refused to accept the same for repairs.  Then the complainant demanded free replacement of the product which was also turned down by the opposite party.  Then the complainant approached the opposite party several times for remedial action and the opposite party was not willing to do the mandatory customer service.  According to the complainant, he purchased the fan for use by him and his family; complainant is residing at Tenari where the climate is very hot, and where the usage of fan is only a necessity.  The complainant and his family suffered a lot of difficulties, monetary and non monetary losses due to non functioning of fan.  Due to deficiency of service committed by the opposite party, the complainant also suffered a lot of mental agony.  Hence this complaint was filed requesting the Hon’ble Forum to pass an order to pay Rs.25,000/- to the complainant as damages for the deficiency in service committed by the opposite party besides the cost of this litigation. 

The complaint was admitted and notice was sent to the 1^st opposite party to enter appearance and file version.  The 1^st opposite party entered appearance and filed version.  Complainant filed IA/130/17 to implead supplemental opposite parties 2 to 4, amendment application was filed and amendment carried out.  Notices were issued to supplemental opposite parties 2 to 4 to enter appearance and file their versions and notices to supplemental opposite parties 2 and 4 were served, but they were called absent and set ex-parte.  3^rd opposite party did not file version.

In the version filed by the 1^st opposite party it is contended that the complaint is not maintainable either in law or on facts.  The complainant has not disclosed the full facts regarding the allegations.  The complainant has purchased 4 items out of which Bajaj fan only is alleged to have defects.  This opposite party contends that he is only a retail dealer.  The warranty is provided by the manufacturer only with conditions, violation of which will make the complainant not entitled to any benefit out of the warranty.  At the time of sale warranty provided by the manufacturer was given to the complainant.  The product is to be serviced by an authorised service centre/agent of the company and the dealer is not empowered to conduct any service centre as per the conditions of agency.  The duty of the dealer is only to provide the details of the service agent of the company to enable the complainant to approach the company and the 1^st opposite party has directed the complainant to approach the service centre. 1^st opposite party also contends that there is no deficiency in service on their part at any point of time and the Hon’ble Forum is prayed to uphold the contentions of this opposite party and dismiss this complaint and exonerate this opposite party from any liability as alleged in the complaint. 

Ext.A1 was marked from the side of the complainant.  Complainant was also heard. 

The following issues arise in this case for consideration by this Forum. 

1. Whether there is any deficiency in service and unfair trade practice on the part of opposite parties 1, 2, 3 & 4?
2. If so, the amount of relief and cost, complainant is entitled for?

Issues 1 & 2 in detail. 

The complainant has produced only Ext.A1 which is a retail invoice number 2731, dated.28.05.2015 to evidence the purchase of “Bajaj W/FAN-BW2000” for Rs.2,689.99/- to support his arguments, but the opposite parties have not produced any evidences to support their contentions.  The 2^nd & 4^th opposite parties were set ex-parte and the 3^rd opposite party has not produced any version; the 1^st opposite party however contends that since the warranty for the product purchased by the complainant is provided by the manufacturer, if any defect occurs to the product, then the legal responsibility to pay the compensation during the warranty period is only for the manufacturer.  This opposite party (being a dealer) has no legal responsibility to honour the warranty, but at the same time they take the responsibility to service the product in question by the authorized service centre recognized by the manufacturer under their instructions.  Although the complainant alleges a small defect in the functioning of the fan, he is uncertain about the real defect and hence this opposite party cannot cure the defect.  The 1^st opposite party also contends that compensation of Rs.25,000/- sought is also untenable for a product which has only a price of Rs.2,689.99/- which is against the established legal dictum that seeking and granting of compensation should have a proximity with the actual loss and only on the evidence of such a loss it can be granted. In this case the complainant has not stated what loss sustained to him is?  The opposite party further contends that the complainant has neither produced the defective product before this Forum and has not marked the defective product as a material object nor produced any evidence to prove the manufacturing defect and deficiency in service committed by the opposite parties.  Above all relief on the allegation of manufacturing defects and deficiency in service may be fastened on the opposite parties 2 to 4 only because the 2^nd opposite party is the manufacturer, the 3^rd opposite party is the authorized service centre and the 4^th opposite party is the wholesale stockiest and the distributors for the Palakkad and Thrissur Districts. 

We have perused the affidavits and the documentary evidences produced by both the parties and find that during the guarantee period of one year the fan purchased by the complainant from the 1^st opposite party stopped functioning and he got it repaired by the 1^st opposite party; but the complainant did not produce any proof for its repair by the 1^st opposite party.  Although the 1^st opposite party is seen to have given the names and addresses of the 2^nd, 3^rd and 4^th opposite parties the complainant is not seen to have taken any steps to prove the manufacturing defect of the said product purchased by him, the defective fan properly serviced, nor the defective fan replaced by a new fan of the same brand and type with the 2^nd, 3^rd and the 4^th opposite parties.  We also observe that the defective fan is not produced before this Forum; nor got it marked. He has also not proved the actual loss incurred by him due to non working of the fan.  We also view that if a product becomes defective or non functional within one year of its purchase, the defect may be taken as manufacturing defect, to prove which in this case the complainant has not taken an expert commission.  Under these circumstances we decide to allow the complaint in part. 

We order the 2^nd, 3^rd and 4^th opposite parties to be jointly and severally liable to repair the defective fan purchased by the complainant from the 1^st opposite party thoroughly to make it in a perfect working condition.  If not possible, they are ordered jointly and severally to pay to the complainant its invoice price of Rs.2,689.99/- (Rupees two thousand six hundred and Eighty Nine and ninety nine paisa only); 2^nd, 3^rd & 4^th opposite parties are also jointly and severally directed to pay to the complainant Rs.1,000/- (Rupees One Thousand only)  as compensation for mental agony suffered by him and his family due to non functioning of fan and Rs.1,000/- (Rupees One Thousand only) towards cost of this proceedings incurred by him.  We also order that the 1^st opposite party is exonerated from any liability in this case because the complainant has not produced any evidence to show that the defective non working fan was repaired by the 1^st opposite party.  We also order that, if the invoice price of the fan is paid to the complainant the defective non working fan should be immediately returned to the opposite parties 2 to 4. 

            This order shall be executed within one month from the date of receipt of this order; otherwise complainant is also entitled to 9% interest p.a on the total amount due to him from the date of this order till realization. 

            Pronounced in the open court on this the 15^th day of March, 2019.

Sd/-             

                   Shiny.P.R

                   President

                      Sd/-         

    V.P.Anantha Narayanan

                    Member

Appendix

Exhibits marked on the side of complainant

Ext.A1  - Original Retail Invoice number 2731, dated.28.05.2015 Issued by Yemkay   Home Appliances to the complainant

Exhibits marked on the side of Opposite parties

Nil.

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite parties

Nil

Cost

            Rs.1,000/-