Complaint filed on: 03-10-2016                                                      Disposed on: 31-03-2017

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM,

OLD DC OFFICE COMPOUND, TUMAKURU-572 101

CC.No.135/2016

DATED THIS THE 31^st DAY OF MARCH 2017

PRESENT

SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT

SMT.GIRIJA, B.A., LADY MEMBER

Complainant: -   

                                                    G.Sreepathi,

                                                    S/o. Late H.Ganapathi Pandith                                                            Aged about 54 years,

R/o. Sri Ramashraya,

4^th Main Road,

Shivamookambika Nagara,

S.S.Puram Post,

Tumakuru-572 102 .

(In-person)

V/s

Opposite parties:-        

1. The Proprietor/Partner,

M/s.Sumukha Home Appliances, Shop No.1,

1^st Cross,

BH Road, Tumakuru-01.

2. The Partner/Director/ Authorized Signatory,

M/s. JB Electro Products,

Post Box No.8507,

Ashok Vihar, Phase-I,

New Delhi-52.

(OP No.1 and 2 by advocate Sri.G.Nagaraj)

O R D E R

SMT.PRATHIBHA. R.K. PRESIDENT

This complaint is filed by the complainant against the OP No.1 and 2, under Section 12 of the Consumer Protection Act. The complainant prays to direct the 2^nd OP to return the cost of Geyser i.e. Rs.6,300=00 and direct the 2^nd OP to pay cost of Rs.10,000=00, compensation of Rs.10,000=00 for mental agony and Rs.10,000=00 towards damages, in total Rs.30,000=00 along with interest at 9% from the date of purchase of the Geyser, in the interest of justice and equity.

2. The brief facts of the complaint is as under.

          On 6-11-2015, the complainant has purchased DECO Geyser Super of Size 25 liters from the 1^st OP vide batch No.1-11407 by paying Rs.6,300=00. The 1^st OP has issued instruction manual and guarantee card on the said date without issuing invoice which is manufactured by the 2^nd OP.

          The complainant submitted that, from the date of purchase, there was one or the other problem in the Geyser. The complainant further submitted that, from 10-01-2016 leakage in the bottom of the Geyser started and the same was intimated to the 1^st OP to solve the said defect. That from 2^nd of February, there was heavy leakage at the bottom of the Geyser continuously without stoppage of the water. In this regard, the complainant had taken a video and showed it to the 1^st OP and the same was conveyed to the 2^nd OP. The 2^nd OP has failed to take any steps till date. It is very clear that, the 2^nd OP has sold defective Geyser for making wrongful gain by adopting unfair trade practice. The act of the 2^nd OP is not at all sustainable as even after knowing the fact from the 1^st OP, he has not responded positively. With this act of the OPs, the complainant has faced service deficiency, mental agony for unnecessary cost due to their negligent act.  On 15-02-2016 the complainant has issued a legal notice to OP Nos.1 and 2 and the same were served on the OPs, but they have failed to give reply or rectify the problem in the Geyser. Hence the complainant has come up with the present complaint.

3. After service of notice, the OP No.1 and 2 have appeared through their counsel and filed common objections contending interalia as under.

The OPs submitted that, the averments made in the complaint are false and denied. Further the 2^nd OP submitted that, the complainant had approached the 1^st OP and had purchased Geyser DECO on 6-11-2015 by paying Rs.5,500=00 inclusive of VAT  which has been manufactured by the 2^nd OP. The said sale of the Geyser is subject to warranty conditions. The OPs further submitted that, the OP has issued cash bill, instruction manual and guarantee card along with Geyser. The OPs further submitted that, the complainant happens to be a good friend of the 1^st OP and is known to each other for several years, has supplied Geyser having a serial bearing number H-1402. The OPs further submitted that, the complainant approached the 1^st OP with a problem in the month of Jan.2016 and the technicians of 1^st OP visited the complainant’s house on 14-1-2016. The technician had informed that there was a leakage in the tank and the same was replaced with a new one. Again on 19-1-2016, the complainant came up with another problem and approached the 1^st OP. The technician after visiting the complainant’s house had informed the 1^st OP that, there is no defect and demonstration was given to complainant for which, he was not satisfied. The OPs further submitted that since the complainant happens to be the classmate of 1^st OP, he had approached the 2^nd OP asking for replacement since the Geyser was within guarantee period.  The 2^nd OP who has got high regard with 1^st OP, since he is one of its good retailers, accepted the recommendation and gave a new Gyezer bearing serial No.H-1407. The complainant had promised to give back the old Gyezer and he did not stand to his words.

The 2^nd OP further submitted that, the complainant has given notice on 15-2-2016 to 2^nd OP. The 2^nd OP did not reply to the said notice since the replacement was given. The OPs further submitted that, after receipt of notice of this case, one of the employee of the 1^st OP had gone to the house of complainant along with one technician of 2^nd OP to collect the old Geyser and to look into the problem, but the complainant has lodged a complaint before the police making allegations that, the 1^st OP and technician of 2^nd OP had tried to trespass the complainant’s house and committed theft. The jurisdictional police have enquired both parties, being satisfied that, it is a false complaint and did not register any case.

The OPs further submitted that, as per the conditions of guarantee, the complainant / customer has to deliver/return the product to the OP’s for obliging the conditions of guarantee.

The 2^nd OP Company is a reputed company and is into manufacturing of water heaters since more than 45 years and they have earned good reputation in the society. In fact, there are no any such complaints with regard to manufacturing defect since precautions will be taken by using high standard equipments during the manufacturing process.

The OPs further submitted that, if the Geyser is not maintained properly and if due to negligence, mishandling, voltage fluctuation, accident etc.  the product will not be covered under guarantee. Further, the 2^nd OP however will be liable to the maximum of the price charged for the product and shall have no responsibility for any indirect or consequential damage nor for any ageing effect on painted, plated, metalized or plastic component. The complainant has not approached this forum with clean hands and suppressed the material facts. There is no bona-fide in the complaint and as such also the complaint is deserves to be dismissed. Hence it is prayed to dismiss the complaint with cost, in the interest of justice and equity.

4.  In course of enquiry into the complaint, the complainant has filed his affidavit evidence and produced documents along with complaint which were marked as Ex-C1 to C-5. On the other hand, one Ajit Nahata, who being the 1^st OP has filed his affidavit evidence and also filed on behalf of the 2^nd OP and no documents are produced.  We have heard the arguments and posted the case for order.

5. Based on the above materials, the following points will arise for our consideration.

1. Whether there was deficiency in service on the part of the OP Nos.1 and 2 as alleged by the complainant?

2. What Order?   

6. Our findings on the above points are;

          Point no.1:  Partly affirmative

          Point no.2:  As per the final order below.

:R E A S O N S:

7.       On perusal of the pleadings, affidavit and documents, it is not in dispute that the complainant has purchased Deco Geyser of 25 liters on 06/11/2015 from OP No.1.

8.       The contention of the complainant is that he had purchased the Geyser Deco bearing No.1-11407of 25 liters on 06/01/2015.  The above said Geyser having manufacturing defect and it is not working properly.  Hence, the complainant approached the OP No.1 with the problem, but OP No.1 did not respond to the complainant, the complainant issued a legal notice to the Ops dated 15/02/2016.  But the OP Nos. 1 & 2 did not respond to the said notice.

9.       On contrary, the OPs contended that the complainant purchased Geyser Deco of 25 liters on 06/11/2015 bearing No.H-1402.  The Ops further contended that the complainant approached the OP No.1 with a problem in the month of January 2016 and one of his technicians visited the complainant’s house on 14.01.2016 and the technician had informed the OP No.1 that there was a leakage in the tank and the same was replaced with a new one.  Again on 19.01.2016 the complainant came up with another problem and approached the OP No.1 and the technician after visiting the complainant’s house had informed the OP No.1 that there was no defect and demonstration was given to complainant, for which the complainant was not satisfied. The Ops further submitted that the complainant had promised to give back the old Geyser, but he did not stand to his words and therefore one of the employee of OP No.1 had gone to house of complainant along with one of the technician of OP No.2 to collect the old Geyser and to look in the problem which the complainant has stated, but the complainant has lodged a complaint before police making allegations that the OP No.1 and technician of OP No.2 had tried to tress pass complainant’s house and commit theft. 

10.     On the basis of the averments made by the Ops that 25 liters Geyser bearing No.H1402 was purchased by the complainant initially and that the same was replaced by Geyser bearing No.H1407 cannot be accepted, since both the parties have not furnished any documentary evidence to the same.  Further, the Ops have stated in the evidence that the OP No.2 technician visited the complainant’s house on 14.01.2016 and the technician had informed that there is a leakage in the tank.  Hence, it is clear that the Ops have accepted the fact that there is a manufacturing defect and a leakage had occurred and this incriminating evidence enough to clinch the issue.  Admittedly the above disputed Geyser bearing No.H1407 is having two years warranty.   Hence, it is just and proper to direct the Ops to return the amount paid by the complainant towards purchase of the Geyser.  

11.     Further, with regard to cash paid towards the
Geyser, the complainant has averred that he has paid Rs.6,300/- for the Geyser.  Further, the complainant alleged that the Ops have not issued any bill for the said amount and only given a warranty card.  On the contrary the Ops stated that they have received only Rs.5,500/- at the time of purchase of the Geyser and issued cash bill, instruction manual and warranty card along with Geyser.  In this regard the Ops have not produced any documents to show that at the time of purchasing the Geyser, the Ops have issued a cash bill along with guarantee card.  Hence, the contention of the Ops cannot be considered and thereby the averment made by the complainant that he has paid Rs.6,300/- at the time of purchase of the Geyser will have to be believed.  Further, due to the supply of defective Geyser, the complainant would have suffered mental agony and therefore he is entitled to get Rs.3,000/- towards mental agony along with Rs.3,000/- litigation cost.  Accordingly, we proceed to pass the following:-  

ORDER

The complaint is partly allowed.   

The OP Nos.1 and 2 are directed to pay Rs.6,300/- to the complainant towards purchase of the Geyser after collecting defective Geyser from the complainant.

The OP  Nos. 1 & 2 are further directed to pay Rs.3,000/- towards compensation and Rs.3,000/- towards litigation cost.

The OP Nos. 1 & 2 are directed to comply the above order within 30 days from the date of receipt of the order, failing which the awarded amount under order carries 9 % interest from the date of complaint to till realization.  

          Supply free copy of this order to both parties. 

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 31^st day of March 2017).

LADY MEMBER                                                       PRESIDENT