State Consumer Disputes Redressal Commission
Starkey Laboratories India P. Ltd. vs Ram Sewak Semwal on 17 March, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 01 / 2021
Starkey Laboratories India Pvt. Ltd.
C-2, Sector-7, Noida - 201301
through its Authorised Signatory Ms. Anuradha Hazra
...... Appellant / Opposite Party No. 2
Versus
1. Sh. Ram Sewak Semwal S/o late K.P. Semwal
R/o B Block, Saraswati Vihar
Ajabpur Kalan, Dehradun
...... Respondent No. 1 / Complainant
2. Eye & Ear Care Centre
Head Office: 324, Kailash Vihar
Ladpur, Raipur Road, Dehradun
Sales Office: 19-B, Kwality Tower
Rajpur Road, Dehradun through
Firm Proprietor Sh. Ajay Malhotra
...... Respondent No. 2 / Opposite Party No. 1
Sh. Deepak Ahluwalia, Learned Counsel for the Appellant
Sh. Suresh Gautam, Learned Counsel for Respondent No. 1
None for Respondent No. 2
Coram: Hon'ble Mr. Justice D.S. Tripathi, President
Mr. Udai Singh Tolia, Member-II
Dated: 17/03/2023
ORDER
(Per: Justice D.S. Tripathi, President):
This appeal has been preferred against the impugned judgment and order dated 21.03.2020 passed by the District Consumer Disputes Redressal Commission, Dehradun (in short "The District Commission") in consumer complaint No. 01 of 2016; Sh. Ram Sewak Semwal Vs. Eye & Ear Care Centre and another, by which the consumer complaint was allowed and the appellant - opposite party No. 2 was directed to pay sum of Rs. 69,000/- to respondent No. 1 -2
complainant towards claim amount together with Rs. 10,000/- towards mental agony and Rs. 3,000/- towards litigation expenses, within a period of 30 days', failing which the respondent No. 1 - complainant was also held entitled to interest @9% p.a. on the above amount from the date of institution of the consumer complaint till payment. The respondent No. 2 - opposite party No. 1 was, however, absolved of the liability to pay any amount to respondent No. 1 - complainant.
2. Facts giving rise to this appeal, in brief, are that according to the consumer complaint, on 04.11.2014, the respondent No. 1 - complainant booked an ear machine with the appellant and respondent No. 2 (who were the opposite parties before the District Commission) and paid an amount of Rs. 35,000/- towards advance. On 06.12.2014, upon receiving the amount of Rs. 69,000/-, the machine was delivered to the complainant along with the guarantee card. However, after purchase of the machine, the same was not working properly. The opposite parties told the complainant to return the machine and they will provide him new machine. On 25.03.2015, after repairing the machine, the opposite parties gave machine to the complainant by issuing fresh cash memo and guarantee card and old cash memo and guarantee card were taken back from the complainant. After receiving the machine, the complainant noticed that the same was not working properly. The complainant told the opposite parties that they have not given new machine to him, but the opposite parties refused to take back the machine and that now, they will not even repair the machine. The complainant met the representative of the opposite parties, but neither satisfactory reply was given to him, nor the new machine was given to him. On 24.08.2015, the complainant met one Smt. Rama Rawat, an employee of the opposite parties, who told that she has left the job. Thereafter, the complainant met Sh. Ajay Malhotra, owner of opposite party No. 1 (respondent No. 2 herein), 3 who told that there is no technician in the shop and he is unable to repair the machine and the complainant can visit some other person for programming of the machine. The complainant asked for replacement of the machine, which was refused. The machine sold to the complainant is defective one, which amounts to deficiency in service on the part of the opposite parties. Thus, the consumer complaint was filed by the complainant before the District Commission.
3. The appellant - opposite party No. 2 filed written statement before the District Commission, wherein it was pleaded that no cause of action arose against the appellant. If at all, the equipment was given by the complainant to respondent No. 2 for servicing, the same was not sent to the appellant's service centre. The respondent No. 2 has overdue amount subsisting in his account with the appellant and is a non-performer for a long time. The appellant has never been contacted by respondent No. 1 - complainant or respondent No. 2 with regard to the alleged purchase of the machine. There is no negligence; deceptive practice; deficiency of service or unfair trade practice on the part of the appellant.
4. The respondent No. 2, who was opposite party No. 1 before the District Commission, filed written statement, pleading that it deals sale and purchase of hearing aid machines of different companies. On 04.11.2014, the complainant came to respondent No. 2 for purchasing hearing aid machine and after being satisfied, purchased one set of hearing aid machine of Starkey Laboratories India Pvt. Ltd. @Rs. 17,500/- each, for total sum of Rs. 35,000/-, regarding which three years' warranty was given by the manufacturing company. After one month, the complainant again came on 06.12.2014 and showed willingness to purchase a better machine than the previous 4 one sold to him and requested for taking back the old machine. Accordingly, two digital hearing aid machines manufactured by Widex Company worth Rs. 34,500/- each, were sold to the complainant to his satisfaction, for total sum of Rs. 69,000/-. The said machines carried two years' warranty. On 25.03.2015, the complainant again came and showed willingness to purchase hearing aid machine of Starkey Laboratories India Pvt. Ltd. and said that if the machines are replaced without any loss, it would be good. As per the complainant's wish as well as to his satisfaction, the machines of Widex company were replaced by hearing aid machines manufactured by Starkey Laboratories India Pvt. Ltd. for total sum of Rs. 69,000/-, i.e., @Rs. 34,500/- each machine, for which receipt was issued. In regard to hearing aid machine, no company is having its service centre in the State of Uttarakhand. If there is any defect in the machine, the same is to be taken care of by the manufacturing company, hence for the machine in question, the liability is that of Starkey Laboratories India Pvt. Ltd. - manufacturing company. It has got no right so far as programming of the machine is concerned.
5. After giving opportunity of hearing to the parties, the consumer complaint has been decided by learned District Commission vide impugned judgment and order dated 21.03.2020, thereby allowing the consumer complaint in the above terms. Feeling aggrieved, the appellant has come up in this appeal.
6. We have heard rival arguments advanced by learned counsel for the appellant and respondent No. 1. We have also gone through the record available before us. None appeared on behalf of respondent No. 2, although service of notice upon respondent No. 2 has already been held to be sufficient vide order dated 20.12.2022.
57. There is no dispute that 2 Nos. of hearing aid machines of Starkey Laboratories India Pvt. Ltd. - appellant were purchased by respondent No. 1 - complainant from respondent No. 2 - dealer (who was opposite party No. 1 before the District Commission) for Rs. 34,500/- per machine, total sum of Rs. 69,000/- after discount, carrying two years' warranty, vide cash memo / bill dated 25.03.2015, copy whereof is Paper No. 19 on record. The case of the complainant is that the said hearing machine was defective one and did not work properly and inspite of repeated requests, neither the same was replaced, nor the cost thereof was refunded to the complainant.
8. The copy of the warranty card on record (Paper No. 20) shows that the warranty expiry date was 25.03.2017. Learned counsel for the appellant submitted that the complainant never approached the appellant with regard to defect in the hearing aid machines in question, hence no liability could be fastened upon the appellant. The complainant has purchased the hearing aid machines from the authorised dealer of the appellant. In the written statement filed by the dealer before the District Commission, it has been stated that the manufacturing company is not having any service centre in the State of Uttarakhand and further that the liability with regard to malfunctioning in the machine is that of the manufacturing company (appellant herein). The dealer has not denied the fact that the complainant did not approach it with regard to the defect in the hearing aid machine. It is worth mentioning here that in the warranty card, the address of the manufacturing company has not been mentioned. Thus, the complainant was not aware of the address of the manufacturing company, so as to approach the company. Further, as is stated above, as per the own saying of the appellant's dealer, the company does not have any service centre in the State of Uttarakhand, hence in such a situation, there does not arise any occasion for the 6 complainant to approach the manufacturing company. It would not be out of place to mention here that the complainant has purchased the hearing aid machine from the authorised dealer of the manufacturing company and the issue with regard to defect in the hearing aid machine was very much taken up by the complainant with the dealer, hence the dealer could have very well sent the machine to the manufacturing company for curing the defect herein, but in the present set of facts and circumstances, the complainant can not be said to be at fault for not taking up the matter with the manufacturing company.
9. Learned counsel for the appellant also submitted that there are certain dues of the company against the dealer (respondent No. 2), who is a non-performer for quite a long time. The said issue has got no relevance at all in the instant case, for the simple reason that the said dispute is between the company & its dealer and the complainant has nothing to do with the same. The complainant has come up with a simple case that he has been sold defective hearing aid machine and inspite of repeated requests, neither the same was replaced, nor the amount was refunded.
10. Learned counsel for the appellant further submitted that there is no expert evidence on record to show that there is inherent manufacturing defect in the hearing aid machine in question and in absence thereof, the District Commission was not justified in allowing the consumer complaint. In support of his submissions, learned counsel cited following judgments:
(i) Sanjib Kumar Dey and another Vs. Chabbi Dey and others reported in 2015 (4) CPR 584 (NC).7
(ii) Baljeet Kaur Vs. Divine Motors and another reported in III (2017) CPJ 599 (NC).
(iii) Tata Motors Ltd. (previously known as Tata Engineering & Locomotives Co. Ltd.) through its Legal Manager Vs. Deepak Goyal, Proprietor of M/s Fab Yarn Inc. and others reported in 2015 (1) CPR 408 (NC).
(iv) Ajay Kumar Thakur Vs. Jaiswal Motors and others reported in II (2017) CPJ 387 (NC).
(v) Negi Sign Systems and Supplies Co. Vs. Rijulize Jacob reported in II (2016) CPJ 19 (NC).
(vi) Classic Automobiles Vs. Lila Nand Mishra and another reported in I (2010) CPJ 235 (NC).
(vii) Judgment dated 08.06.2018 of Hon'ble National Commission in Revision Petition No. 525 of 2018; Md.
Hassan Khalid Haidar Vs. General Motors India Pvt. Ltd. and others.
11. The facts and circumstances of the present case coupled with documentary evidence on record, themselves speak of manufacturing defect in the hearing aid machine in question and no expert evidence is required to prove the same. In this context, it would not be out of place to mention here that the respondent No. 2 (dealer) has nowhere stated in the written statement that there is no manufacturing defect in the hearing aid machine or that whatever the defect was, the same was cured / set right. The dealer has further stated that the responsibility to cure the defect in the machine, is that of the manufacturing company. Thus, it can safely be said that the dealer has admitted that there is inherent manufacturing defect in the hearing aid machine in question, which is unable to be cured. Hence, in such a situation, no specific expert evidence is required.
812. In the case of Sanjib Kumar Dey and another (supra), it was held by Hon'ble National Commission that documentary evidence will always get preponderance over oral evidence. The said case involved forging of documents. In the instant case, there is enough documentary evidence, as is stated above, to substantiate manufacturing defect in the hearing aid machine. In the case of Baljeet Kaur (supra), it was held by Hon'ble National Commission that when manufacturing defect is alleged, onus of proof lies on the complainant. In the present case, the complainant has duly discharged his onus / burden, as he had repeatedly taken up the matter with the dealer with regard to malfunctioning / defect in the hearing aid machine, but neither the same was replaced, nor cost thereof was refunded. Not only this, there is nothing on record to show that the complainant was told the address of the manufacturing company. Similar is the position with the judgment of Hon'ble National Commission in the case of Classic Automobiles (supra). In the case of Tata Motors Ltd. (previously known as Tata Engineering & Locomotives Co. Ltd.) through its Legal Manager (supra), it was held by Hon'ble National Commission that merely because the vehicle was taken for repairs repeatedly, no manufacturing defect can be presumed in absence of expert evidence. The present case is not that of the vehicle being taken for repairs on several occasions and so far expert evidence is concerned, as is stated above, no expert evidence is required. Similar is the position with the judgment of Hon'ble National Commission in the case of Ajay Kumar Thakur (supra). In the case of Negi Sign Systems and Supplies (supra), it was held by Hon'ble National Commission that if only a part of printer was defective, complainant was entitled to replacement of that part and not to refund of price of machine. In the case in hand, the entire equipment (hearing aid machine) is defective, which was 9 neither replaced, nor price thereof was refunded to the complainant. In Revision Petition No. 525 of 2018; Md. Hassan Khalid Haidar (supra), the petitioner had failed to submit any evidence to prove that the vehicle had a manufacturing defect. The said case too pertain to a vehicle. Even otherwise, in the case before us, the complainant has duly proved manufacturing defect in the hearing aid machine. The complainant who has a hearing problem and is dependent upon hearing aid machine to hear something, was made to run from pillar to post for getting the defective machine replaced and the price thereof was also not refunded to him.
13. For the foregoing reasons, we are of the view that the impugned judgment and order passed by learned District Commission is based on proper appreciation of evidence and cogent reasoning and the same does not suffer from any illegality, warranting interference by this Commission. The appeal being devoid of any merit, is liable to be dismissed.
14. Appeal is dismissed. No order as to costs.
15. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.
(U.S. TOLIA) (JUSTICE D.S. TRIPATHI)
Member-II President
K