National Consumer Disputes Redressal
Laxman A. Tekwani vs Ganesh & Anr. on 6 January, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2951 OF 2017 (Against the Order dated 27/07/2017 in Appeal No. 839/2016 of the State Commission Maharashtra) 1. LAXMAN A. TEKWANI PROP. AKASH TEKWANI, SARDASANKUL, SUBHASH ROAD, TQ. & DISTRICT-BEED MAHARAHSTRA ...........Petitioner(s) Versus 1. GANESH & ANR. S/O. MURSHADPUR, TQ. AND DISTRICT-BEED MAHARAHSTRA 2. L.G. ELECTRONICS INIDA PVT. LTD., THROUGH ITS SERVICE MANAGER, AJITESH KUMAR NARENDERA KUMAR, PLOT NO. 302, OPP. TO HOTEL RAMGIRI, N-3, CIDCO JALNA ROAD, AURANGABAD MAHARAHSTRA ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr. Mohit Gautam , Advocate For the Respondent : For Respondent No.1 : Ms. Aditi Deshpande, Advocate
For Respondent No.2 : Mr. Gajinder Kumar, Advocate with
Mr. Chandra Shekhar and Ms. Kajal Bhati,
Advocate
Dated : 06 Jan 2020 ORDER
This revision petition has been filed by the petitioner Laxman A.Tekwani against the order dated 27.7.2017 of the State Consumer Disputes Redressal Commission, Maharashtra, (in short 'the State Commission') passed in First Appeal No.839 of 2016.
2. Brief facts of the case are that the respondent No.1/complainant on 29.11.2014 purchased a fridge wide receipt no.343 for an amount of Rs.13,700/- from the petitioner manufactured by respondent No.2. It was told to the complainant that it had two years' warranty. On 8.11.2015, the complainant's fridge suddenly exploded and blasted with a huge sound. After giving information about the incident to fire brigade and police station Beed, they tried to extinguish the fire. After the incident, the police officer, Tahsildar, Gramsevak, Talathi have prepared panchnama. On 09.11.2015, the panchnama was drawn in presence of the Technician of the respondent company. On 17.11.2015, the respondent company prepared job sheet and issued report thereof along with photographs of the refrigerator showing the compressor intact. On 01.12.2015, lastly the complainant issued notice to the respondent No.2 and the petitioner through his advocate. On 02.01.2016, the complainant has filed the present complaint and claimed the loss of Rs.7,00,000/- caused due to the blast alongwith18% p.a.interest thereon. The District Forum, Beed allowed the consumer complaint No.2/2016 by judgment and order dated 13.07.2016. On 16.08.2016, the respondent No.2 company filed first appeal No.839 of 2016 before the State Commission. On 18.01.2017, the petitioner filed cross-objection before the State Commission. On 27.07.2017, the State Commission dismissed the cross-objection and allowed the appeal of the respondent No.2/ the manufacturer company.
3. Hence the revision petition.
4. Heard the learned counsel for the parties and perused the record. The learned counsel for the petitioner stated that the provision of warranty is there because if there is any manufacturing defect or if any defect develops within the warranty period, the manufacturer has to remove the defect. Basically warranty is a provision of a liability on the part of the manufacturer. Petitioner is only the dealer whose primary responsibility is to sell the product as received from the manufacturer. Thus, if the fridge performed well for about a year and then there was sudden blast, then there was either a manufacturing defect or some defect developed during the period of use. Therefore, if there is any shortcoming in the fridge, it is the manufacturer who is responsible for removing the defect and not the dealer.
5. The District Forum has allowed the complaint and has awarded a compensation of Rs.4,50,000/- based on the report of panchnama. On the day of arguments before the State Commission, neither the learned counsel for the petitioner was present nor the learned counsel for the complainant was present. The State Commission heard only the learned counsel for the respondent No.2 herein (appellant before the State Commission) and decided the appeal by allowing it. The petitioner could not get any opportunity to put forward its case before the State Commission though the petitioner had filed cross-objection before the State Commission. Learned counsel mentioned that the order dated 27.7.2017 passed by the State Commission is liable to be set aside not only on the ground of not giving opportunity of being heard to the petitioner, but also on the ground that the State Commission did not consider the points raised in the cross-objection filed by the petitioner. The State Commission has dismissed the cross- objection of the petitioner only on the ground that the petitioner did not file any appeal against the order of the District Forum. The learned counsel mentioned that there is a provision of filing cross- objection by respondents in an appeal under Order XLI Rule 22 of the Code of Civil Procedure, 1908 (CPC). This provision gives an alternative to the respondent to file cross-objection instead of filing separate appeal. The State Commission should have considered the points raised in the cross-objection against the order of the District Forum.
6. Learned counsel for the petitioner stated that the report issued by technician of the respondent manufacturing company in absence of any iota of evidence to point out the manufacturing defect in the fridge negates entire case of the complainant.
7. Learned counsel for the petitioner further argued that the photographs produced by the respondent consumer and the alleged loss of the house hold articles goes to show that the loss as alleged was caused due to electricity fluctuation. The compressor of the fridge was intact. The purchase receipts produced by consumer complainant on record falsifies his own case; in as much as the dates of the household articles shown in the receipts to prove the monetary loss to claim compensation shows receipts of purchase of the same period/month which appears to be farce and unbelievable.
8. It was further stated by the learned counsel for the petitioner that the State Commission has found that there was no manufacturing defect and therefore, the explosion could have occurred due to erratic power supply. If that is the case, the petitioner/dealer cannot be held responsible for erratic power supply, therefore, even if the State Commission did not consider the cross-objection as appeal preferred by the petitioner, the State Commission, in the interest of justice, should have set aside the order of the District Forum for both the opposite parties.
9. On the other hand, learned counsel for the respondent No.1stated that the complainant had mentioned in the complaint that there was a manufacturing defect in the fridge due to which it exploded. However, the State Commission in the appeal filed by the respondent No.2 herein has observed that there was no manufacturing defect. The complainant has not filed any revision petition against the order of the State Commission because the complainant is only interested in getting the compensation as ordered by the District Forum. In the absence of respondent No.2, the compensation is to be paid by the present petitioner.
10. Learned counsel for the complainant further argued that the order of the District Forum is based on the panchnama dated 09.11.2015 wherein the panchas have clearly opined that total loss was between Rs.4, lacs - Rs.5 lacs.
11. It was further pointed out by the learned counsel for the complainant that the counsel for the complainant was also not present at the time of final arguments before the State Commission, however, as the State Commission has not set aside the complete order of the District Forum, no prejudice is caused to the complainant so far as the complainant gets full amount of compensation as ordered by the District Forum.
12. The learned counsel for the respondent No.2 stated that the complainant in the complaint has only mentioned that the opposite parties supplied defective and duplicate refrigerator and thus, no manufacturing defect has been alleged by the complainant. The State Commission has further observed that no expert report has been submitted by the complainant to prove the manufacturing defect rather a report of the technical person of respondent no.2 has been produced wherein it has been clearly stated that there was no manufacturing defect in the refrigerator and the blast could have occurred due to heavy fluctuation in the electrical voltage. It is also possible that certain parts may have been changed at the level of dealer before supplying the refrigerator to the complainant and thus if there is no manufacturing defect, the manufacturer cannot be held responsible for other defects, which may have been caused due to negligence on the part of the dealer.
13. I have carefully considered the arguments advanced by the learned counsel for the parties and have examined the material on record. It is seen that the District Forum found both the opposite parties liable for the loss of the complainant. No survey of loss has been conducted in the present case, though panchnama was done and the report of panchas dated 09.11.2015 is available on the record. Though the panchnama report mentions that the total loss occurred may be between Rs.4 lacs and Rs.5 lacs, however, the panchnama only mentions the following items:-
(a) Gas Stove for Rs.2,000/- (b) Cooler for Rs.3,000/- (c) Bajri 1 gunny bag for Rs.2,000/- (d) Jawar 1gunny bag for Rs.3000/- (e) Groceries for Rs.5,000/- (g) Iron shelf for Rs.4,000/- (h) Golden articles for Rs.15,000/-
14. Though this issue has not been raised by any of the parties, the issue needs to be examined and parties are required to be heard on this issue also. Clearly, the State Commission has allowed the appeal of respondent no.2 herein without hearing the learned counsel for the complainant or for the petitioner herein. Though the State Commission has proceeded rightly in the matter, however, as the issue of loss needs to be determined properly, the hearing of all the parties becomes important. The District Forum in its order has not discussed anything about the loss or compensation and figure of Rs.4,50,000/- only occurs in the operative portion of the order. Section 14(1)(d) of the Consumer Protection Act, 1986 allows a consumer forum to order compensation to the complainant for the injury or loss suffered by the complainant due to negligence of the opposite parties. Though the State Commission has reached to a conclusion that there is no manufacturing defect in the fridge, however, the State Commission has not clearly given any finding that the petitioner herein was responsible for negligence, which led to the explosion of the refrigerator. If the explosion occurred due to fluctuation in the electrical voltage then it needs to be examined whether any machinery was prone enough to get damaged due to voltage fluctuation or whether any other act of the dealer or manufacturer was responsible for the explosion.
15. The provision of cross-objection as given in Order XLI Rule 22 of the Code of Civil Procedure, 1908 (CPC) reads as under:-
"22 . Upon hearing respondent may object to decree as if he had preferred a separate appeal-- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
[Explanation--A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.]
16. From the above, it is clear that the petitioner herein filed a cross objection as per this Rule. It is also seen that there is no such provision specifically mentioned in the Consumer Protection Act, 1986 and there is only one provision that if any person is aggrieved by the order passed by the District Forum in a consumer complaint, he can file an appeal before the State Commission. Clearly, the provision of cross-objection seems to be a convenient method of consolidating different appeals filed by different respondents, against the same impugned order. Even if there is no specific provision for cross-objection in the Consumer Protection Act, 1986, however, a cross-objection filed by the respondent cannot be out rightly dismissed on the ground that there is no such provision in the Consumer Protection Act, 1986. In my view, the cross-objection needs to be decided on merits. Ultimate aim for any forum is to provide the substantive justice to the parties in dispute and the procedural aspect may be sacrificed to some extent for achieving this goal.
17. The appeal filed by the respondent No.2 herein has been decided by the State Commission without hearing the objections from the complainant or from the petitioner herein. In the interest of justice, it is necessary that the question of manufacturing defect or any defect within the warranty period is decided after hearing the complainant as well as the dealer.
18. On the basis of the above discussion, I deem it appropriate to set aside the order dated 27.07.2017 passed by the State Commission and to remand the matter to the State Commission to decide the appeal filed by respondent No.2 herein as well as the cross-objection filed by the petitioner herein on merits after giving an opportunity of being heard to all the three parties including the complainant. This order is being passed at a cost of Rs.10,000/- (rupees ten thousand only) to be paid to the complainant by the petitioner herein and Rs.5,000/- (rupees five thousand only) to be deposited with the Consumer Legal Aid Account of the State Commission by the petitioner herein. Both the costs be paid/deposited on or before the date of appearance before the State Commission. Parties are directed to appear before the State Commission on 20.02.2020.
...................... PREM NARAIN PRESIDING MEMBER