State Consumer Disputes Redressal Commission
Kanwar Ram Kirpal Prop. vs Sh. Sandeep Saini. on 10 December, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 102/2018
Date of Presentation: 19.03.2018
Order Reserved on : 23.08.2018
Date of Order : 10.12.2018
......
Kanwar Ram Kirpal Prop. M/s. Super Pest Control (India)
Branch Office Kutlehar House Nanaksar Una Tehsil and District
Una H.P.
...... Appellant/Opposite Party
Versus
Sandeep Saini son of Shri Bhagat Ram Saini resident of Lower
Arniala Takka Road Una Tehsil and District Una H.P.
......Respondent /Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Manoj Chauhan Advocate.
For Respondent : In person.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 05.01.2018 passed by Learned District Forum in consumer complaint No.98/2016 titled Sandeep Saini Versus Kanwar Ram Kirpal Prop.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
Kanwar Ram Kirpal Prop. Versus Sandeep Saini (F.A. No.102/2018) Brief facts of consumer complaint:
2. Shri Sandeep filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant in order to save doors and windows of his house from Termite engaged service of opposite party on dated 04.09.2013 in consideration amount of Rs.28000/-
(Twenty eight thousand) vide bill/cash memo annexure-C1 for spray purpose. It is pleaded that opposite party sprayed medicine upon doors and windows of house of complainant. It is pleaded that after two months of spraying medicine Termite started damaging the doors and windows of house of complainant. It is further pleaded that complainant requested opposite party to refund the amount paid by complainant to opposite party but opposite party did not refund the amount and misbehaved with the complainant on dated 30.05.2016 in his house. Prayer for grant of relief as mentioned in relief clause of consumer complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that spray work was conducted by opposite party on 04.09.2013. It is pleaded that complainant used abusive language and threatened the opposite party with dire consequences. It is further pleaded that opposite party agreed to spray the doors and windows afresh but 2 Kanwar Ram Kirpal Prop. Versus Sandeep Saini (F.A. No.102/2018) complainant did not agree. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum ordered opposite party to pay an amount of Rs.28000/-(Twenty eight thousand) to complainant alongwith interest @ 9% per annum from the date of filing of complaint i.e. 08.06.2016 till the said amount is paid or realized. In addition learned District Forum ordered that opposite party would pay costs to complainant to the tune of Rs.4000/-(Four thousand). Feeling aggrieved against order passed by Learned District Forum opposite party filed present appeal before State Commission.
5. We have heard learned advocates appearing on behalf of appellant and respondent in person and we have also perused entire record carefully.
6. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
7. Complainant filed affidavit in evidence. There is recital in affidavit that complainant engaged the service of 3 Kanwar Ram Kirpal Prop. Versus Sandeep Saini (F.A. No.102/2018) opposite party for spraying medicine upon doors and windows of house of complainant in order to prevent damage from termite. There is recital in affidavit that proper service was not given by opposite party and again Termite started damaging the doors and windows of house of complainant.
There is further recital in affidavit that complainant demanded the consideration money back from opposite party but opposite party did not refund the consideration amount. There is recital in affidavit that opposite party used abusive language to complainant in the residential house of opposite party.
8. Opposite party filed affidavit in evidence. There is recital in affidavit that opposite party agreed to conduct the spray work again but complainant did not agree and used abusive language.
9. Submission of learned Advocate appearing on behalf of opposite party that warranty was given by opposite party to complainant w.e.f. 04.09.2013 to 03.09.2023 as per bill No.0056 dated 04.09.2013 and there is no obligation to refund the amount to the tune of Rs.28000/-(Twenty eight thousand) to complainant and on this ground appeal filed by opposite party be allowed is decided accordingly. State Commission has carefully proved the bill/cash memo annexure-C1 placed on record. It is proved on record that opposite party received the amount of Rs.28000/-(Twenty 4 Kanwar Ram Kirpal Prop. Versus Sandeep Saini (F.A. No.102/2018) eight thousand) from complainant for spraying medicine in the building of complainant with object to save building from Termite attack. It is also proved on record that note was given in cash memo that goods once sold would not be returned. Complainant has also relied upon bill/cash memo issued by opposite party on dated 04.09.2013 annexure-C1. Annexure-C1 has been produced by complainant himself in support of his case.
10. State Commission is of the opinion that note given in the bill/cash memo that goods once sold would not be returned is binding upon complainant and complainant could not be allowed to approbate and reprobate at the same time. There is no condition in the bill that opposite party would be liable to refund the amount of Rs.28000/-(Twenty eight thousand) to complainant. On the contrary opposite party has given warranty w.e.f. 04.09.2013 to 03.09.2023 in the Bill/Cash memo annexure-C-I placed on record.
11. It is well settled law that guarantee and warranty are two different concepts under law. It is well settled law that under guarantee concept replacement of new goods is permissible. It is also well settled law that in warranty concept replacement of goods is not permissible but only repair is permissible without claiming any charges from person who had availed the service of opposite party by way of 5 Kanwar Ram Kirpal Prop. Versus Sandeep Saini (F.A. No.102/2018) payment of consideration amount. State Commission is of the opinion that in view of warranty given by opposite party to complainant from 04.09.2013 to 03.09.2023 complainant was legally entitled to free service from opposite party w.e.f. 04.09.2013 to 03.09.2023 and was not legally entitled for refund of consideration amount of Rs.28000/-(Twenty eight thousand). See 2018(III) CPJ 473 NC Rajendra Chiman Lal Meldy Versus Mahindra & Mahindra Ltd. See 2000(1) CPJ 3 Punjab Eko Electronics Versus Sh. Kuldeep Sharma & others.
12. Submission of learned Advocate appearing on behalf of opposite party that learned District Forum has granted excessive litigation costs to complainant to the tune of Rs.4000/-(Four thousand) and on this ground appeal filed by opposite party be allowed is decided accordingly. State Commission is of the opinion that learned District Forum has granted reasonable costs to complainant and it is not expedient in the ends of justice and on the principle of natural justice to interfere in the litigation costs ordered by learned District Forum.
13. Submission of learned Advocate appearing on behalf of opposite party that opposite party offer free service during warranty period and complainant did not allow to conduct free service during warranty and on this ground appeal filed by appellant be allowed is decided accordingly. 6
Kanwar Ram Kirpal Prop. Versus Sandeep Saini (F.A. No.102/2018) Opposite party did not adduce any corroborative evidence on record in order to prove that free service of spraying medicine was offered by opposite party. Simple affidavit of opposite party is not sufficient because affidavit filed by opposite party has been rebutted by complainant by way of counter affidavit. Opposite party did not give any legal notice to complainant for free service during warranty period. No reason assigned by opposite party as to why opposite party did not give legal notice to complainant relating to free service during warranty period qua defect occurred in the service of opposite party.
14. Submission of learned Advocate appearing on behalf of complainant that order passed by learned District Forum is in accordance with law and in accordance with proved facts is decided accordingly. Order of learned District Forum warrants part interference by State Commission because as per terms and conditions of bill/cash memo No.0056 dated 04.09.2013 only warranty was given by opposite party relating to service rendered by opposite party w.e.f. 04.09.2013 to 03.09.2023 and there is no condition in bill/cash memo that complainant would be entitled for refund of Rs.28000/-(Twenty eight thousand). On the contrary there is recital in bill/cash memo that goods once sold would not be returned. State Commission is of the opinion that defective spray medicine goods falls within the definition of goods as 7 Kanwar Ram Kirpal Prop. Versus Sandeep Saini (F.A. No.102/2018) mentioned in bill/cash memo. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
15. In view of findings upon point No.1 above appeal is partly allowed. Order of learned District Forum that opposite party shall pay an amount of Rs.28000/-(Twenty eight thousand) to complainant alongwith interest @ 9% per annum from the date of filing of complaint till said amount is paid or realized is set aside. It is ordered that opposite party would provide free service without claiming any charges from complainant relating to defective spray upon doors and windows of house of complainant w.e.f. 04.09.2013 till 03.09.2023. Opposite party shall remove the defects within one month after the receipt of certified copy of order. Order of learned District Forum that opposite party would pay amount of Rs.4000/-(Four thousand) to complainant as litigation costs is affirmed. Bill/Cash Memo annexure-C1 dated 04.09.2013 shall form part and parcel of order. Order of learned District Forum is modified accordingly. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free 8 Kanwar Ram Kirpal Prop. Versus Sandeep Saini (F.A. No.102/2018) of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 10.12.2018 KD* 9